DOCSLIB.ORG

Bringing Dignity Back to Light: Publicity Rights and the Eclipse Of

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Bringing Dignity Back to Light: Publicity Rights and the Eclipse Of Mitchell Hamline School of Law Mitchell Hamline Open Access Faculty Scholarship 1999 Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity Jonathan Kahn Mitchell Hamline School of Law, [email protected] Publication Information 17 Cardozo Arts & Entertainment Law Journal 213 (1999) Repository Citation Kahn, Jonathan, "Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity" (1999). Faculty Scholarship. Paper 289. http://open.mitchellhamline.edu/facsch/289 This Article is brought to you for free and open access by Mitchell Hamline Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. Bringing Dignity Back to Light: Publicity Rights and the Eclipse of the Tort of Appropriation of Identity Abstract Over the years, the privacy-based tort of appropriation has become eclipsed by its flashier cousin, publicity. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. When celebrities are perpetually trading on their names and images in the open market, it may seem quaint, at best, to invoke a dignity as a basis for protecting personal identity. But this is exactly what happens. In case after case, even as they demand restitution for the converted monetary value of their names and images, celebrities also invoke dignitary concerns as a prime motivation in their attempt to protect and vindicate the integrity of their identities before the law. Moreover, for average citizens, the power to control the use of their name or image can be critical to maintaining the integrity of their identities. The ourc ts recognize this, but all too frequently they subsume all such claims under the rubric of publicity. Even when acknowledging the privacy interest involved, courts tend to confuse and blur the boundary between the two causes of action, with the inevitable result being that the more prominent and tangible property-based right of publicity comes to eclipse the privacy based concerns for identity. I say eclipsed quite deliberately, because while these latter concerns persist throughout and animate much of the courts' reasoning, they remain obscured. Thus, never fully articulated, their implications are never fully explored. In this article I aim to bring the tort of appropriation back into the light. My task is to disentangle publicity and privacy, the conjoined twins of our modern media-saturated society. By examining their origins and development I will show how courts have consistently, if often obliquely, granted legal recognition to identity as a dignitary interest. In bringing such interests to the fore, I hope to revitalize our concern for and examination of intangible, noncommercial values as they inform and guide the legal management of identity. My examination of the relationship between publicity and appropriation illuminates the tensions between democracy and management, even as it provides new insights into the legal relationship between the fungible and non-fungible aspects of our identities. I argue that in assessing the legal status of identity it is imperative to articulate and engage the tradition of concern for such intangible values as dignity and integrity as integral parts of our legal system. The jurisprudence of publicity and appropriation provide a unique and powerful avenue to explore such issues. Keywords publicity, identity, privacy, appropriation Disciplines Privacy Law This article is available at Mitchell Hamline Open Access: http://open.mitchellhamline.edu/facsch/289 BRINGING DIGNITY BACK TO LIGHT: PUBLICITY RIGHTS AND THE ECLIPSE OF THE TORT OF APPROPRIATION OF IDENTITY JONATHAN KAHN* I. INTRODUCTION Popular singer Bette Midler sued Ford for using a sound-alike to mimic her voice in a car commercial on television.1 Former First LadyJacqueline Onassis sued Christian Dior for using a look- alike to sell its products in a print advertisement.2 Actor Clint East- wood sued the National Enquirer for exploiting his name and im- age solely to sell newspapers.' Today, when we think of torts involving the use of someone's name or image without her con- sent, these are the types of cases that come to mind: celebrities seeking to control the exploitation of their fame for profit. Most likely, such cases are framed in terms of the right of publicity, a property-based right involving the commercial value of celebrity identity.4 Indeed, so prominent is the right of publicity that it has come to eclipse the existence of another cause of action that may arise from the very same set of facts: the tort of appropriation of identity. While publicity is grounded in property rights,5 appropriation of identity involves the personal right to privacy. 6 Publicity rights implicate monetary interests.7 In contrast, privacy rights protect and vindicate less tangible personal interests in dignity and integ- rity of the self.' However, both rights are clearly linked and find their common origin in American law around the turn of this cen- tury.9 Yet over the years, the privacy-based tort of appropriation has receded into the background as its flashier cousin, publicity, * Assistant Professor of History and Political Studies, Bard College; Ph.D., Cornell Uni- versity; J.D., Boalt Hall School of Law. This Article is part of a larger project with the working title: "The Subject of Rights: Identity and Equality in American Law." 1 See Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). 2 See Onassis v. Christian Dior of N.Y., Inc., 472 N.Y.S.2d 254 (N.Y. Sup. Ct. 1984). 3 See Eastwood v. Superior Court, 198 Cal. Rptr. 342 (Cal. Ct. App. 1983). 4 See Robert C. Post, Rereading Warren and Brandeis: Privacy, Property, and Appropriation, 41 CASE W. RES. L. REv. 647, 654 (1991). 5 See id. at 666. 6 See RESTATEMENT (SECOND) OF TORTS § 625C (1976). 7 See Post, supra note 4, at 667. 8 See id. 9 See Robert C. Post, The Social Foundations of Privacy Law: Community and Self in the Common Law Tort, 77 CAL. L. REv. 957, 958 (1989). 213 214 CARDOZO ARTS & ENTERTAINMENT [Vol. 17:213 has risen to prominence. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. As celebrities perpetually trade on their names and images in the open market, it may seem quaint, at best, to invoke dignity as a basis for protecting personal identity. Butthis is exactly what happens. Midler, Onassis, and Eastwood each had valid pub- licity claims, but more important to them was the vindication of a personal right to control the meaning and substance of their iden- tities. 1° In case after case, even while demanding restitution for the converted monetary value of their names and images, celebrities invoke dignitary concerns as a prime motivation for their attempt to protect and vindicate the integrity of their identities before the law. 1 Moreover, for average citizens, the power to control the use of their name or image can be critical to maintaining the integrity of their identities. The courts recognize this, but they all too frequently subsume all such claims under the rubric of publicity. Even when acknowl- edging the privacy interest involved, courts tend to confuse and blur the boundary between the two causes of action, with the inevi- table result being that the more prominent and tangible right of publicity comes to eclipse the privacy-based concerns for identity.'2 I say "eclipsed" quite deliberately, because while these latter con- cerns persist throughout and animate much of the courts' reason- ing, they remain obscured. Because these concerns are never fully articulated, their implications are never fully explored. This Article aims to bring the tort of appropriation back into the light. The task is to disentangle publicity and privacy, the con- joined twins of our modern media-saturated society. By examining their origins and development I will show how courts have consist- ently, if often obliquely, granted legal recognition to identity as a dignitary interest. In bringing such interests to the fore, I hope to revitalize our concern for and examination of intangible, noncom- mercial values as they inform and guide the legal management of identity. Indeed, the legal recognition of dignitary interests mani- fested in the jurisprudence of appropriation has created and main- tained a legally sanctioned space that places control over the self beyond the reach of the market. 10 See Post, supra note 4, at 667. 11 See id. 12 "The distinctive aspect of the common law right of publicity is that it recognizes the commercial value of the picture or representation of a prominent person or performer, and protects his proprietary interest in the profitability of his public reputation or 'per- sona."' Id. at 666 (quoting Ali v. Playgirl, Inc., 447 F. Supp. 723, 728 (S.D.N.Y. 1978)). For a more detailed discussion of Ali, see infra notes 282-87 and accompanying text. 1999] BRINGING DIGNITY BACK TO LIGHT 215 As we choose our legal values, we locate power to interpret and enforce the law. While both publicity and appropriation in- volve fairly straightforward methods to determine whether some- one's name or image has been used without her consent, they call upon significantly different sources of authority to assess the na- ture and degree of harm caused by such misuse. Publicity rights demand accountants and other relevant experts from the realm of celebrity and marketing to determine damages. Appropriation calls upon the local community to consider whether an outrage or affront to relevant social norms has occurred. The former involves the virtues and vices of expert management.
Load more

Recommended publications
  • Tort Recovery for Loss of a Chance David A
    University of Missouri School of Law Scholarship Repository Faculty Publications Fall 2001 Tort Recovery for Loss of a Chance David A. Fischer University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Torts Commons Recommended Citation David A. Fischer, Tort Recovery for Loss of A Chance, 36 Wake Forest L. Rev. 605 (2001) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. TORT RECOVERY FOR LOSS OF A CHANCE David A- Fischer- "Loss of a chance" is a novel theory of causation commonly used by courts in the United States in medical misdiagnosis cases. Yet, the theory has a vastly broader potential application than this. In fact, it could be applied in virtually every case of questionable causation. While this Article asserts that the doctrine could legitimately be expanded and applied in a variety of additionalsituations, the Article cautions that it would be unwise to apply the doctrine so broadly that it routinely supplants traditional causation rules. The Article searches for a principled basis for limiting the theory within proper bounds by comparing the differing applicationsof the loss of a chance doctrine in British Commonwealth cases and United States cases. The Article concludes that current rationalesfor the doctrine do not provide an adequate limiting principle, but that a case by case policy analysis can appropriatelylimit the theory.
    [Show full text]
  • "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions
    University of Michigan Journal of Law Reform Volume 11 1977 Developing "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions Harold J. Rennett University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Civil Rights and Discrimination Commons, Legal Remedies Commons, and the Torts Commons Recommended Citation Harold J. Rennett, Developing "Tort" Standards for the Award of Mental Distress Damages in Statutory Discrimination Actions, 11 U. MICH. J. L. REFORM 122 (1977). Available at: https://repository.law.umich.edu/mjlr/vol11/iss1/8 This Note is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. DEVELOPING "TORT" STANDARDS FOR THE AWARD OF MENTAL DISTRESS DAMAGES IN STATUTORY DISCRIMINATION ACTIONS Affronts to dignity are compensable by monetary damages for "mental distress" 1 through various tort actions.2 Some courts recently have rec­ ognized significant similarities between the emotional injury suffered by victims of such "dignitary"3 torts and the emotional injury suffered by persons aggrieved under federal and state discrimination statutes.4 In­ creasingly, victims of discrimination have sued successfully under these statutes for mental distress damages.5 1 "Mental distress" takes many forms and is referred to by many names. The injury discussed in this article is primarily one that is not caused by physical injury.
    [Show full text]
  • Emotional Harm in Housing Discrimination Cases: a New Look at a Lingering Problem Victor M
    Fordham Urban Law Journal Volume 30 | Number 3 Article 17 2003 Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem Victor M. Goode City University School of Law Conrad A. Johnson Colombia University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Housing Law Commons Recommended Citation Victor M. Goode and Conrad A. Johnson, Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem, 30 Fordham Urb. L.J. 1143 (2003). Available at: https://ir.lawnet.fordham.edu/ulj/vol30/iss3/17 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. Emotional Harm in Housing Discrimination Cases: A New Look at a Lingering Problem Cover Page Footnote Victor M. Goode is an Associate Professor of Law, City University School of Law; B.A., Northwestern University; J.D., Rutgers Newark School of Law. I would like to thank the dedicated staff of the Open Housing Center of New York with whom I have served as a Board member for the last eight years and whose work to end housing discrimination helped inspire this Article. Conrad A. Johnson is a Clinical Professor of Law, Columbia University School of Law; B.A., Columbia University; J.D., Brooklyn Law School.
    [Show full text]
  • The Puzzle of the Dignitary Torts Kenneth S
    Cornell Law Review Volume 104 Article 2 Issue 2 January 2019 The Puzzle of the Dignitary Torts Kenneth S. Abraham University of Virginia School of Law Edward White University of Virginia School of Law Follow this and additional works at: https://scholarship.law.cornell.edu/clr Part of the Torts Commons Recommended Citation Kenneth S. Abraham and Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev. 317 (2019) Available at: https://scholarship.law.cornell.edu/clr/vol104/iss2/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. THE PUZZLE OF THE DIGNITARY TORTS Kenneth S. Abraham & G. Edward Whitet In recent years, there has been much greater legal atten- tion paid to aspects of dignity that have previously been ig- nored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular,certain forms of tort liability are imposed in order to protect individual dignity of various sorts and compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonmentfall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express atten- tion in tort cases or torts scholarship. The absence of a ro- bustly-articulatedconception of the interest in dignity that tort law protects is puzzling.
    [Show full text]
  • Tort, Speech, and the Dubious Alchemy of State Action
    TORT, SPEECH, AND THE DUBIOUS ALCHEMY OF STATE ACTION Cristina Carmody Tilley∗ ABSTRACT Plaintiffs have historically used defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court reimagined these private law torts as public law causes of action that explicitly privileged speech over dignity. This Article claims that Sullivan was a misguided attempt at alchemy, manipulating state action doctrine to create more of a precious commodity—speech— while preserving a tort channel for the most deserving plaintiffs. In Sullivan the Court departed from its usual practice of narrowly defining the relevant state action in constitutional challenges to private law matters. Instead, it defined state action to include not just the isolated verdict being appealed but the entirety of the private law that produced the questionable verdict. This approach aggrandized the Court’s authority to “fix” private law in the dignitary tort arena, where it seemed to fear that insular communities could chill important news coverage by imposing parochial norms onto the national community. The Court used its enhanced remedial authority to design a national constitutional common law of dignitary tort. In the quasi-statutory scheme that emerged, the Court attempted to strike an ex ante balance between valuable speech and wrongful behavior by conditioning liability on different scienter requirements for different categories of plaintiff. But the Sullivan project is rapidly failing. Operationally, insignificant but injurious speech such as revenge porn has flourished under the Court’s brittle categorization matrix. Conceptually, the private law message that speakers owe some duty to those they discuss has been supplanted with a public law message that they have no duty of care.
    [Show full text]
  • Attorney's Fees, Nominal Damages, and Section 1983 Litigation
    Digital Commons @ Georgia Law Scholarly Works Faculty Scholarship 3-1-2016 Attorney’s Fees, Nominal Damages, and Section 1983 Litigation Thomas A. Eaton University of Georgia School of Law, [email protected] Michael Wells University of Georgia School of Law, [email protected] Repository Citation Thomas A. Eaton and Michael Wells, Attorney’s Fees, Nominal Damages, and Section 1983 Litigation , 24 Wm. & Mary Bill Rts. J. 89 (2016), Available at: https://digitalcommons.law.uga.edu/fac_artchop/1066 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact [email protected]. ATTORNEY'S FEES, NOMINAL DAMAGES, AND SECTION 1983 LITIGATION Thomas A. Eaton and Michael L. Wells Can plaintiffs recover attorney's fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely re- duced fee, should be awarded in such circumstances. This position, which we call the "low award, low fee" approach, rests primarily on the Supreme Court's 1992 opinion in Farrarv. Hobby. We argue that a "low award, low fee" approach is misguided for two main reasons. First, the majority opinion in Farraris fragmented, and the factual record is opaque regarding what and how the plaintiff's constitutional rights were violated. These com- plexities render Farrara poor case upon which to frame a rule regarding the relation- ship between damage awards and the proper calculation of attorney's fees.
    [Show full text]
  • The Puzzle of the Dignitary Torts
    \\jciprod01\productn\C\CRN\104-2\CRN203.txt unknown Seq: 1 23-APR-19 8:33 THE PUZZLE OF THE DIGNITARY TORTS Kenneth S. Abraham & G. Edward White† In recent years, there has been much greater legal atten- tion paid to aspects of dignity that have previously been ig- nored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular, certain forms of tort liability are imposed in order to protect individual dignity of various sorts and compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonment fall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express atten- tion in tort cases or torts scholarship. The absence of a ro- bustly-articulated conception of the interest in dignity that tort law protects is puzzling. Why have notions of dignity and dignitary torts been little more than labels, reflecting a value that has gone unanalyzed and undebated, despite its obvious and growing importance? The answers to these questions lie in the structure of the common law of torts, the history of twentieth-century tort law scholarship, the jurisprudence of doctrinal boundaries, and—perhaps, surprisingly—develop- ments in constitutional law during the last four decades of the twentieth century. In the first analysis of the dignitary torts as a whole in half a century, this Article explores the puzzle of the dignitary torts. It argues that these torts have been under- theorized because of the very nature of the common law sys- tem, which poses a powerful obstacle to any doctrinal re- orientation of tort law toward the understanding or creation of a unified species of dignitary torts.
    [Show full text]
  • Addressing Negligence Claims for Pure Reputational Harm
    Fordham Law Review Volume 83 Volume 83 Issue 1 Volume 83, Issue 1 Article 8 2014 Reputational Injury Without a Reputational Attack: Addressing Negligence Claims for Pure Reputational Harm Bryson Kern Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Bryson Kern, Reputational Injury Without a Reputational Attack: Addressing Negligence Claims for Pure Reputational Harm, 83 Fordham L. Rev. 253 (2014). Available at: https://ir.lawnet.fordham.edu/flr/vol83/iss1/8 This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. REPUTATIONAL INJURY WITHOUT A REPUTATIONAL ATTACK: ADDRESSING NEGLIGENCE CLAIMS FOR PURE REPUTATIONAL HARM Bryson Kern* This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation. When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for handling the claim.
    [Show full text]
  • The Case of Informed Consent, 2015 BYU L
    BYU Law Review Volume 2015 | Issue 1 Article 4 February 2015 Rethinking Injury: The aC se of Informed Consent Erin Sheley Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Torts Commons Recommended Citation Erin Sheley, Rethinking Injury: The Case of Informed Consent, 2015 BYU L. Rev. 63 (2015). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2015/iss1/4 This Article is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. DO NOT DELETE 11/18/2015 2:12 PM Rethinking Injury: The Case of Informed Consent Erin Sheley* ABSTRACT This article argues that the traditional debates between the expressive and compensatory views of tort law ignore the way in which an injury may itself have an expressive component, one that in turn increases the extent of physical harm suffered by a victim. I take up the example of informed consent in the medical malpractice context to show how an excessively narrow idea of physical harm has negative consequences for tort law in general. In these situations, when a physician performs a procedure without providing the patient with sufficient information, we can better understand the harm that occurs through a combination of civil recourse theory and new insights from the field of narrative medicine. Under the current regime, the effort to cabin potential liability for physicians’ well-intended conduct has resulted in a disconnect between a negligence standard—with its requirement of strictly physical injury—and the actual harm in question, which has historically been recognized as at least partially dignitary.
    [Show full text]
  • Joyce 1 Pager Final
    Start with winning points: “A jury would likely find X liable to Y for subject unless gathered at cost and sold as commodity— Adults: Objective standard; Knowledge & experience of an 2. Breach of the duty of care: Must show what in fact happened Z. Z occurs when...” ; move to borderline issues where triers of formulated w/ inventive genius & labor; Π may have property ordinary reasonable person, NOT Δ’s own traits and from those facts that Δ acted unreasonably; can be shown by fact could go either way: a. what’s the majority rule? B. Why could returned under remedy of replevin Direct or Circumstantial evidence: **Res Ipsa Loquitur: Thing causing these facts result in more than one result?; c. Where does this Children held to age, intelligence, & maturity-matched standard injury was under Δ’s control; Event causing injury would not have case fall on the dispute?; d. ; then fringe issues where facts Defenses to Intentional Tort: Privileges *Distinct from immunities unless engaged in activity usual exclusive to adults occurred but for Δ’s negligence in an ordinary course of events; require hypothesis - privileges arise from circumstances / immunities arise from minority: Neither Π nor third party contributed to the injury*Can also person’s status Physical disabilities standard is “reasonable person with the be used against multiple Δs when injuring party unknown; Application: lntentional Torts-EVERYONE can form intent Consent: Δ can reasonably believe that Π has consented to Δ’s disability”; mental disability=reasonable person standard Majority: Res Ipsa warrant an inference of negligence that the fact- NO required actual injury: Battery; Assault; FI; Tres to Land actions Express-words used; Implied: a.
    [Show full text]
  • The Anatomy of Emotional Distress Claims in Minnesota Michael K
    William Mitchell Law Review Volume 19 | Issue 1 Article 1 1993 The Anatomy of Emotional Distress Claims in Minnesota Michael K. Steenson Mitchell Hamline School of Law, [email protected] Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Part of the Torts Commons Recommended Citation Steenson, Michael K. (1993) "The Anatomy of Emotional Distress Claims in Minnesota," William Mitchell Law Review: Vol. 19: Iss. 1, Article 1. Available at: http://open.mitchellhamline.edu/wmlr/vol19/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Steenson: The Anatomy of Emotional Distress Claims in Minnesota William Mitchell College of Law Mitchell Open Access Faculty Scholarship 1993 The Anatomy of Emotional Distress Claims in Minnesota Michael K. Steenson William Mitchell College of Law, [email protected] Publication Information 19 William Mitchell Law Review 1 (1993) Repository Citation Steenson, Michael K., "The Anatomy of Emotional Distress Claims in Minnesota" (1993). Faculty Scholarship. Paper 24. http://open.wmitchell.edu/facsch/24 This Article is brought to you for free and open access by Mitchell Open Access. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Mitchell Open Access. Published by Mitchell Hamline Open Access, 1993 1 William Mitchell Law Review, Vol. 19, Iss. 1 [1993], Art.
    [Show full text]
  • Treating Wrongs As Wrongs: an Expressive Argument for Tort Law Scott Eh Rshovitz University of Michigan Law School, [email protected]
    University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2017 Treating Wrongs as Wrongs: An Expressive Argument for Tort Law Scott eH rshovitz University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/1993 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Public Law and Legal Theory Commons, and the Torts Commons Recommended Citation Hershovitz, Scott. "Treating Wrongs as Wrongs: An Expressive Argument for Tort Law." J. Tort L. (2017). Ahead of print. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. J. Tort Law 2017; aop Scott Hershovitz* Treating Wrongs as Wrongs: An Expressive Argument for Tort Law https://doi.org/10.1515/jtl-2017-0004 Abstract: The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff.
    [Show full text]