1. Art and Diseño

CONNECTICUT
LAW REVIEW
VOLUME 47
FEBRUARY 2015
NUMBER 3
Article
Emotional Duties
ERICA GOLDBERG
The distinction between physical and emotional harm is fundamental.
Legal disciplines from torts to constitutional law rely on a hierarchy that
places bodily integrity over emotional tranquility. This hierarchy is now
under attack by scientists and scholars. Neuroscientists have undermined
the view that emotional harm is more subjective; social scientists have
refuted the position that emotional harm is less impactful; and feminist
scholars have undercut the view that these categories are gender neutral.
Courts are taking notice, especially in tort law, and each new Restatement
of Torts provides more avenues for plaintiffs to collect damages for
emotional injuries.
This Article defends the relevance of the distinction between physical
and emotional harm, especially in tort law, by offering theoretical
justifications that are responsive to the modern criticisms. A new
conception of the distinction should be based on a duty to reasonably
regulate one’s own emotional health. This duty fits well within tort
theories, including law and economics, corrective justice, and civil
recourse theory, and harmonizes with criminal law and First Amendment
doctrines. Further, neuroscience, social science, and even feminist theory
support this duty. A duty to maintain one’s own emotional well-being can
benefit both tort plaintiffs and defendants by incorporating normative
ideals about identity, consent, autonomy, social justice, and social welfare.
In advancing this emotional duty, this Article also provides sustainable
definitions for physical and emotional harm that can survive changing
technology, and discusses the implications of a new understanding of the
physical/emotional hierarchy for tort law.
809
ARTICLE CONTENTS
I. INTRODUCTION ................................................................................... 811
II. TORT LAW’S SELF-CONSCIOUS STRUGGLES WITH THE
PHYSICAL/EMOTIONAL DISTINCTION ........................................ 817
A. THE TORTURED PATH OF TORT LAW................................................... 818
B. PARASITIC DAMAGES VS. THE EGGSHELL PSYCHE RULE .................... 822
III. CHALLENGES TO THE PHYSICAL/EMOTIONAL
DISTINCTION ..................................................................................... 825
A. MEASURING EMOTIONAL HARM ......................................................... 826
B. VALUING EMOTIONAL HARM .............................................................. 831
C. GENDERING EMOTIONAL HARM .......................................................... 834
IV. RESUSCITATING THE PHYSICAL/EMOTIONAL
DISTINCTION ..................................................................................... 841
A. DEFINING THE CATEGORIES ................................................................ 842
B. THE DUTY TO MAINTAIN ONE’S EMOTIONAL HEALTH........................ 847
V. IMPLICATIONS AND DOCTRINAL MODIFICATIONS .................. 869
A. EMOTIONAL DUTIES AND EGGSHELL PSYCHES ................................... 869
B. COMPENSABLE EMOTIONAL INJURIES ................................................. 871
C. PARASITIC PHYSICAL AND EMOTIONAL DAMAGES .............................. 875
VI. CONCLUSION ..................................................................................... 877
Emotional Duties
ERICA GOLDBERG∗
I. INTRODUCTION
There is a battle between bodies and minds in the law. Many legal
doctrines place great weight on whether a particular injury is classified as
physical or emotional, generally giving greater protection to the former.1
Recent developments, both in science and legal thought, have cast doubt
on this distinction. The foundation for the law’s preferential treatment of
physical harm seems to be crumbling, and courts and commentators are
taking notice. This Article aims to establish new theoretical justifications
for the distinction between physical and emotional harm as it relates to tort
law. The distinction should be based on a duty that we all have to
reasonably regulate our own emotional well-being—if we seek legal
redress.
Historically, a sharp divide between physical and emotional harm has
dictated the scope of liability for such harms. In tort law, emotional injuries
not stemming from physical injuries are considered separate from physical
injuries.2 Suits alleging pure emotional injuries face hurdles that suits
alleging physical injuries do not, including special limited-duty rules that
significantly circumscribe liability.3 Tort law is hardly unique in this
respect. First Amendment doctrine likewise relies on the notion that speech
that causes emotional harm should be less susceptible to regulation than
conduct that causes physical harm.4 The Fifth Amendment prohibits the
police from using physical coercion when extracting confessions but
∗
Climenko Fellow and Lecturer on Law, Harvard Law School. I would like to express my
gratitude for their helpful comments and insights to I. Glenn Cohen, Sam Datlof, Dan Epps, Richard
Fallon, Joseph Fishman, Charles Fried, Maggie Gardner, John Goldberg, Paul Gowder, Jacob Kreutzer,
Adriaan Lanni, Charlotte Lawson, Michael Morley, Seth Stoughton, Susannah Barton Tobin, and
Matthew Wansley.
1
Precise definitions of physical versus emotional harm will be discussed infra, Part IV. The
Restatement (Third) of Torts notes that emotional harm “encompasses a variety of mental states,
including fright, fear, sadness, sorrow, despondency, anxiety, humiliation, depression (and other mental
illnesses), and a host of other detrimental—from mildly unpleasant to disabling—mental conditions.”
RESTATEMENT (THIRD) OF TORTS: PHYSICAL & EMOTIONAL HARM § 45 (2012).
2
Infra Part II.
3
Id.
4
Infra Part IV.
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5
permits many types of deception and emotional manipulation. Criminal
law often explicitly distinguishes between physical and emotional injury
when defining harms.6
Despite its importance, courts have struggled to explain the
physical/emotional distinction, and scholars and scientists are increasingly
prone to decry its artificiality.7 Nowhere has this distinction been more
sharply criticized than in tort law. Although a few scholars have attempted
to explain the distinction,8 or justify it as necessary for reasons of judicial
5
Id. But see Dov Fox & Alex Stein, Dualism and Doctrine, 90 IND. L.J. (forthcoming 2015)
(discussing how the Fifth Amendment has been interpreted to privilege the mind over the body in
determining what constitutes a self-incrimination violation).
6
Fox & Stein, supra note 5, at 17–18.
7
See, e.g., Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. PA.
L. REV. 463, 499 (1998) (“[L]egal claims for emotional distress have been devalued in part because
they are associated with female plaintiffs.”); Martha Chamallas & Linda K. Kerber, Women, Mothers,
and the Law of Fright: A History, 88 MICH L. REV. 814, 814 (1990) (reasoning that the
physical/emotional dichotomy has “privileged men, as the traditional owners and managers of property,
and has burdened women, to whom the emotional work of maintaining human relationships has
commonly been assigned”); Fox & Stein, supra note 5, at 10–11, 17, 20–23, 25–27 (criticizing the
mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality); Oscar S.
Gray, Commentary, Negligent Infliction of Emotional Distress: A View of the Proposed Restatement
(Third) Provisions from England, 44 WAKE FOREST L. REV. 1193, 1193 (2009) [hereinafter
Commentary] (arguing that, rather than focusing on the physical/emotional distinction, courts should
focus on the “distinction between what might be called ‘mere feelings’ on the one hand and ‘injury’ on
the other”); Betsy J. Grey, Neuroscience and Emotional Harm in Tort Law: Rethinking the American
Approach to Free-Standing Emotional Distress Claims, in 13 LAW AND NEUROSCIENCE: CURRENT
LEGAL ISSUES 2010 212 (Michael Freeman ed., 2011) (“Advances in neuroscience suggest that this
concern over verification [of emotional distress] may no longer be valid, and that the phenomena we
call ‘emotional’ harm has a physiological basis. Because of these early scientific advances, this may be
an appropriate time to re-examine our assumptions with regard to tort recovery for emotional harm.”);
Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 175–76 (1992) (arguing that the reluctance
to sympathize with and provide redress for emotional injuries is a product of narrow-minded
skepticism); Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 HARV. L.
REV. 1033, 1033–35 (1936) (recounting judicial reluctance to provide redress when an unlawful act
causes only mental and emotional harm); John T. Nockleby & Shannon Curreri, 100 Years of Conflict:
The Past and Future of Tort Retrenchment, 38 LOY. L.A. L. REV. 1021, 1071, 1071 n.213 (2005)
(explaining the scientific community’s research “establishing that emotional disturbances were, as a
matter of fact, a mixture of physical and mental manifestations”); Geoffrey Christopher Rapp, Defense
Against Outrage and the Perils of Parasitic Torts, 45 GA. L. REV. 107, 110 (2010) (explaining the
often criticized trend of affording self-defense privileges in connection with the use of physical force).
8
See John C. P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA. L. REV. 1625,
1669–70, 1685 (2002) (explaining the “reluctance of the courts to recognize a broad duty to take care to
avoid causing emotional distress” based on the “notion of bearing (at least partial) responsibility for
one’s own emotional state”). Goldberg and Zipursky’s claim provides a descriptive account about why
courts treat physical and emotional harm differently. Id. at 1677–85. However, to the extent that this
limited liability for emotional harms fits well within a tort system properly understood as providing
plaintiffs with civil recourse for particular wrongs, Goldberg and Zipursky’s position is self-described
as “weakly normative.” See John C. P. Goldberg & Benjamin C. Zipursky, Civil Recourse Defended: A
Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette, 88 IND. L.J. 569, 602 (2013)
[hereinafter Goldberg & Zipursky, Civil Recourse Defended] (“To make sense of a body of law that
many have assumed to be incoherent is already to recognize a reason for supposing that it is a body of
2015]
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9
813
10
administration, none actually champion it on theoretical grounds, and
most are dismissive, if not outright hostile, toward it. The distinction has
been criticized as too individualistic,11 anti-feminist,12 and formalist.13 In
its place, scholars are proposing new ways to distinguish between
compensable and non-compensable injuries.14
Now, scientific developments are shifting the former fault lines of the
debate.15 Although brain-scanning technology still has its limitations,
neuroscientists have demonstrated that emotional injuries, like physical
injuries, have a physiological basis that can increasingly be measured.16
This undermines the claim that emotional harm is too subjective and easy
to fake.17 Further, the hierarchy that values bodily integrity over emotional
law worth having.”); see also infra Part IV.B (discussing an argument to expand liability for wrongful
conduct causing compensable, enduring emotional injuries, a study indicating that emotional health
exerts an often-stronger impact on happiness than does physical health, and the contention that our
mental experience of the world is the only thing that matters and therefore emotional wellbeing should
be afforded primary importance).
9
See Eugene Kontorovich, The Mitigation of Emotional Distress Damages, 68 U. CHI. L. REV.
491, 492 (2001) (arguing that mitigation rules in emotional distress cases are unworkable and
suggesting “limiting the availability of emotional distress damages”). Stanley Ingber proposes a
middle-ground solution where emotional harms are recognized as legally compensable and thus destigmatized, but plaintiffs receive damages only for the pecuniary losses stemming from emotional
injuries. Stanley Ingber, Rethinking Intangible Injuries: A Focus on Remedy, 73 CALIF. L. REV. 772,
783 (1985).
10
Richard Abel opposes the way damages “commodify . . . unique experience” generally, and
argues that “damages for intangible injury dehumanize [by] substituting money for compassion,
arousing jealousy rather than expressing sympathy, and contributing to a culture that views experience
and love as commodities.” Richard Abel, A Critique of American Tort Law, 8 BRIT. J.L. & SOC’Y 199,
207, 210 (1981).
11
Levit, supra note 7, at 176.
12
Chamallas, supra note 7, at 499.
13
Id. at 530 (“We should not accept the basic tort categories as neutral, static, and essential.”).
14
Scholars suggest distinguishing between illusory and enduring injuries, see Cass R. Sunstein,
Illusory Losses, 37 J. LEGAL STUD. S157, S164–66 (2008), or medically diagnosed and undiagnosable
injuries, Grey, Neuroscience and Emotional Harm in Tort Law, supra note 7, at 225–26. Some claim
that, in place of rigid categories, courts should simply assess each type of injury individually. See
Chamallas, supra note 7, at 530 (“My quarrel with the current system is that, through reliance on the
implicit hierarchies, we are apt to shortcut difficult judgments about which claims deserve legal
recognition, simply by presuming that certain types of injuries, on a categorical basis, are less
worthy.”).
15
See infra Part III (discussing the developments of the fMRI technique and PET scans to study
pain and emotional distress). One scholar has gone as far as arguing that “[a]t a minimum, this
‘emotional’/‘physical’ distinction casts a pall of apparent antiscience over our work and makes us
appear obsolete from the outset.” Commentary, supra note 7, at 1193.
16
See infra Part III (explaining that despite the shortcomings of neuroscience, emerging
technologies in the field will increasingly enable us to make inferences about individuals’ cognitive
experiences with greater precision).
17
The Restatement (Third) of Torts distinguishes between physical and emotional harm by
providing that “[t]he essential difference is that bodily harm usually provides objective evidence of its
existence and extent while the existence and severity of emotional harm is usually dependent upon the
report of the person suffering it or symptoms that are capable of manipulation or multiple
814
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tranquility has been questioned by social scientists, who plausibly maintain
that emotional harm can be just as debilitating as physical harm.18
Scientists’ and scholars’ objections to the physical/emotional distinction
are gaining momentum as our nation is becoming increasingly concerned
with mental health.19 Each new Restatement expands the duties that we
owe to others to avoid causing emotional harm.20 In the courts and in the
legislature, the line separating physical and emotional harm is blurring,
with mental illness being de-stigmatized and treated as akin to physical
harm.21 No state has yet established a general duty of care to prevent
emotional harm, like the tort duty that exists for physical harm,22 but few
scholars offer theoretical and normative justifications for treating
emotional harm differently than physical harm.
Resisting the trend toward abolishing the distinction between physical
and emotional harm, this Article defends its continued relevance,
particularly in tort law. Given our current treatment of physical harm,
which I accept as a baseline, this Article addresses how we should treat
emotional harm as standard rationales for this distinction erode. Even
accepting that emotional harm can be as serious and legitimate as physical
harm, it is erroneous to infer that physical and emotional harm should be
treated identically in tort and other bodies of law. The law should not treat
physical and emotional harm equally simply because they share more
features than once believed. What scholars and scientists gloss over is that
our responses to emotional harm are more within our control,23 and are
explanations.” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt. b
(2010).
18
See infra Part III.B (discussing studies demonstrating that emotional health often has a stronger
impact on happiness than physical health).
19
Recent high profile school shootings have highlighted America’s mental health problems
because many of the killers suffered from mental illness. See Colleen Curry, Newtown Massacre Result
of Mental Illness, Access to Guns, Death Obsession, ABC NEWS (Nov. 25, 2013), http://abcnews.go.
com/US/newtown-massacre-result-mental-illness-access-guns-death/story?id=21003690 (reporting that
the perpetrator of the Newtown, Connecticut school shooting was afflicted by mental illness); Gerald
Landsberg, Shootings Show Need for Mental Health Care, CNN OPINION (Sept. 19, 2013, 8:14 AM),
http://www.cnn.com/2013/09/18/opinion/landsberg-shootings-mental-health/ (discussing the frequency
with which mental illness serves as the backdrop to America’s mass shootings).
20
Levit, supra note 7, at 143–44 (discussing the history of the recognition of emotional harm).
21
Francis X. Shen, Mind, Body, and the Criminal Law, 97 MINN. L. REV. 2036, 2038 (2013)
(discussing the increasing sentiment among policymakers and the public that “‘illness of the brain must
be treated just like illness anywhere else in the body’” (quoting Robert Pear, House Approves Bill on
Mental Health Parity, N.Y. TIMES, Mar. 6, 2008, at A14)).
22
Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1673 (“Whereas [tort decisions] long
ago announced a general duty to take care not to cause physical harm and illness, no comparable
decisions have taken hold with respect to emotional distress.”). Some states, like Montana, have come
close, however. See infra Part II (noting that Montana is one of the few states that includes mental
injury within the definition of bodily injury).
23
See Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1681 (offering a normative
approach that recognizes that “a plaintiff’s agency plays an important role in the generation of
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815
bound up in notions of identity, voluntariness, and consent. Additionally,
protecting emotional well-being compromises important social goals in
ways that protecting bodily integrity does not. Further, the
physical/emotional distinction has embedded itself implicitly and explicitly
into accepted legal doctrine, including normatively desirable doctrines
such as robust free speech protections and notions of autonomy, identity,
fault, and consent.
This new understanding of the basis of the distinction between
physical and emotional harm builds on scientific advances in
understanding emotional processing. Accordingly, it offers a framework
for identifying a duty for individuals to use their rational faculties to
overcome emotional disturbances and to seek assistance for their mental
infirmities if they wish to use the force of the law to obtain redress.24 In
justifying a new version of the physical/emotional distinction, I also offer
definitions of emotional and bodily harm that can survive changing
technology, respond to the modern critics of the distinction, and explain
when emotional harm should be compensable.
This Article will begin by discussing the self-conscious struggles of
courts contending with the physical/emotional distinction in tort law,
including courts’ approaches to “parasitic” damages and “eggshell psyche”
cases. It then frames the debate over the physical/emotional distinction by
presenting the views of scientists and scholars who argue in favor of
abolishing it. They challenge the scientific basis for the distinction,
question the underlying assumption that emotional harm is trivial, and
contend that the distinction is anti-feminist, anti-communitarian, and
overly formalistic.
Accepting many of these insights as true, but noting where science,
social science, and feminism actually support the distinction, this Article
will contend that there are still descriptive differences between physical
and emotional harm, as well as normative reasons to distinguish the two
types of harm. Descriptively, courts and scholars have struggled to
delineate precisely the definitions of physical and emotional harm, finding
these categories obvious and ineffable. This Article constructs working
definitions of bodily and emotional harm that require more exploration, but
emotional distress”). Goldberg and Zipursky, while rejecting the notion that physical harms are
categorically worse than emotional harms, establish a basis for distinguishing physical and emotional
harms that relies on a narrative in which judges believe emotional health is, to a certain extent, within a
plaintiff’s control. Id. at 1680–86.
24
Some view the duty question in torts as “a shorthand statement of a conclusion, rather than an
aid to analysis in itself,” encompassing “considerations of policy which . . . say that the particular
plaintiff is entitled to protection.” Dillon v. Legg, 441 P.2d 912, 916 (Cal. 1968) (citing PROSSER, LAW
OF TORTS 332–33 (3d ed. 1964)). Whether the duty question retains its own logic within tort law or
simply incorporates external public policy considerations, tort law should limit emotional duties we
owe to others by expanding an emotional duty to take care of ourselves.
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suffice for the purpose of defending the physical/emotional distinction.
This Article will next justify the drawing, in tort law, of a distinction
between physical and emotional harm. I argue that the physical/emotional
hierarchy, or the ease of collecting on emotional injuries, should be based
on conceptions of the types of duties we owe others, not on whether an
injury can be measured objectively.25 The law should recognize for each of
us a duty to reasonably regulate one’s own mental condition. An emotional
duty of this type would foreclose or reduce damages recoverable in certain
types of lawsuits for emotional distress, based on the instrumental and
deontological perspectives embedded within law and economics, corrective
justice, and civil recourse theories.
There are many forms of laudable personal and social behavior that
can produce unavoidable emotional harm as a byproduct. Duties to protect
others from emotional harm should be limited not only to preserve spheres
within which this laudable behavior can occur, but also to create a society
where individuals seek help for mental disturbances, both before and after
emotional distress. Neuroscience has begun to study the ways in which we
can control our own minds, and scholars have explored how focusing on
emotional harms as grievous wrongs tends to amplify them. Emphasizing
the powerlessness of individuals over their emotional lives can diminish
victims’ autonomy and can undermine notions of consent, especially for
women. Ultimately, we are the keepers of our own minds and the law
should reflect a morality where individuals cannot be compensated for
harms over which they have relatively more control. The mental changes
we undergo to cope with life are intimately connected to notions of free
will and identity.
Limiting defendants’ duties of protecting against emotional harm also
maintains coherence with themes found in First Amendment law and
criminal law. While appreciating the profound impact of emotional harm
and de-stigmatizing mental illness, encouragement of mental fortitude can
benefit potential plaintiffs and defendants.
Finally, this Article will discuss the implications of maintaining the
divide for tort doctrine. A new understanding of the physical/emotional
distinction should center on the primacy of protection of the body and the
recognition that individuals should assume greater responsibility for their
own emotional health that is unrelated to bodily integrity. An emotional
“reasonableness” requirement should be imposed on plaintiffs at the
liability stage and the damages stage, both for stand-alone emotional
distress and emotional injury that is parasitic on physical injury. However,
the duty to take care of one’s emotional well-being is limited. When
25
Whether an injury can be proven objectively should be relevant to the issue of damages, not
liability.
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817
emotional distress is so serious that it compromises our voluntary ability to
exert emotional control, many of the reasons for maintaining the
physical/emotional distinction disappear. Further, when emotional injury is
bound up in either threats to bodily integrity or a violation of some other
independent and significant interest, for which there is a separate duty, the
breach of those duties may render irrelevant the victim’s duty of mental
fortitude. Complicated questions arise when emotional injury leads to
physical injury and vice versa, and this Article proposes ways to handle
these issues consistent with a modern physical/emotional hierarchy.
This Article will proceed in four parts. Part II will chart how tort law
has treated the physical/emotional distinction. Part III will explore the
criticisms of this distinction offered by neuroscience, social science, and
feminist scholarship, but will also show how insights from these fields can
support the distinction. Part IV will present a working definition of
emotional injury, and will illustrate how this new conception of a duty to
reasonably maintain one’s own emotional health, at the heart of the
physical/emotional distinction, comports with tort theory’s instrumental
and deontological values and echoes intuitions in other areas of the law.
Part V will suggest doctrinal modifications to tort law in light of this
recasting of the physical/emotional distinction.
II. TORT LAW’S SELF-CONSCIOUS STRUGGLES WITH THE
PHYSICAL/EMOTIONAL DISTINCTION
In many areas of the law, courts cannot avoid confronting thorny
questions concerning the categories of physical and emotional harm and
the scope of the duties that we owe others to avoid causing them emotional
harm.26 For example, when a car collides with a bike but the biker is not
physically injured, is the driver responsible for the biker’s emotional
distress stemming from the incident? What about the emotional distress of
close relatives who witnessed the incident? Friends? A passersby? Does
any or all of the analysis change if the biker is physically injured? In tort
law, these confrontations have generated doctrine that perhaps embodies
our intuitions,27 but which is especially rife with tortured rules and
inconsistencies.
Even as courts struggle with the physical/emotional distinction, there
are echoes of unifying themes. Legal doctrine reflects a strong impulse to
26
For an exploration of how other areas of the law handle the physical/emotional distinction, see
infra Part IV.B.
27
The physical/emotional divide deeply reflects our intuitions about what types of harm the law
should prioritize. There is a reason that although there is “a growing trend to afford a privilege of selfdefense in connection with the use of physical force,” Rapp, supra note 7, at 110, we cannot use selfdefense to prevent the intentional infliction of emotional distress. This indicates that emotional wellbeing is not as valued in the law as physical safety.
818
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separate physical and emotional injuries and it embodies the sense,
sometimes only implicitly, that we have a greater duty to take steps to
avoid causing others physical injury than emotional injury. Recognition of
legal duties to avoid causing emotional distress is viewed as less
problematic in special cases where individuals are in emotionally
vulnerable situations or when an independent interest, separate from
general emotional well-being, is involved. Courts now also seek ways to
expand protection for emotional distress, in some cases by blurring the line
between physical and emotional harm.
A. The Tortured Path of Tort Law
The life of tort law’s treatment of emotional harm seems to be neither
logic nor experience.28 Judges, fearing the consequences of compensating
emotional injury, while recognizing the serious impact of certain types of
emotional distress, have attempted to limit claims for emotional harm in
seemingly incoherent ways, drawing puzzling lines between compensable
and non-compensable emotional injury.29 All jurisdictions now provide for
compensation for some emotional injuries.30 The trend is toward continued
liberalization of a plaintiff’s ability to collect on emotional claims.31
However, courts and the Second and Third Torts Restatements continue to
maintain a categorical separation between physical and emotional harm,32
providing a general duty of care to avoid causing physical injuries but
crafting only a “partial and fragmented patchwork of” duties for emotional
28
Holmes’ famous quote, “the life of the law is not logic but experience,” is a critique of legal
formalism in favor of legal realism. Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV.
787, 806 (1989). Tort law’s treatment of emotional harm, however, has attempted to draw bright,
formalistic lines while evolving based on experience to incorporate growing sympathies towards
plaintiffs who suffer emotional injury.
29
See, e.g., Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996) (describing the “inconsistency
and incoherence in the law” of negligent infliction of emotional distress borne of trying to ferret out
“the trivial or fraudulent claims that have been thought to be inevitable due to the subjective nature of
[emotional] injuries”); Hunsley v. Giard, 553 P.2d 1096, 1098 (Wash. 1976) (en banc) (“Liability for
negligently causing fright, mental disturbance, shock or emotional distress, resulting in physical injury,
without impact to the person, has been a divided, confused and unsettled area of the law.”). The
“impact rule,” for example, allows a plaintiff to collect emotional damages if he was touched by the
slightest physical impact. Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1662–63.
30
See Edward Benedict Lumpkin, Note, Recovery of Emotional Distress Damages in AIDSPhobia Cases: A Suggested Approach for Virginia, 51 WASH. & LEE L. REV. 717, 718 (1994)
(“[C]ourts in all jurisdictions overcame this fear of fraudulent claims and recognized an independent
cause of action for emotional distress when the plaintiff meets certain threshold requirements. . . .”).
31
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt. d
(2010) (“Since [the Second] Restatement, courts have liberalized the rules for recovery for stand-alone
emotional harm.”).
32
See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 534 (1994) (adopting the “zone of danger
test,” limiting recovery for emotional injury); see also RESTATEMENT (THIRD) OF TORTS: LIAB. FOR
PHYSICAL & EMOTIONAL HARM § 4 cmts. b, d (2010) (treating physical and emotional harm as
separate categories).
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819
33
injuries. Even though the Third Restatement notes the difficulty of clearly
delineating between bodily harm and emotional harm,34 it preserves this
distinction and stresses its importance.35
Initially, courts applying tort law were reluctant to compensate
anything other than injury to the physical body or to personal property.36
The few torts that did not involve tangible harm, like assault or false
imprisonment, were not conceptualized as recognizing claims for
emotional distress. Rather, they were understood to protect and vindicate
liberty interests—freedom from coercion by threat of physical harm and
freedom from being physically confined against one’s will.37 The aversion
to claims for emotional injury was based on a variety of concerns, most
notably fear of fraudulent claims due to the subjective and unprovable
nature of emotional injury,38 and reluctance to open the floodgates of
litigation to the potentially limitless set of plaintiffs who could experience
emotional suffering from any incident.39 Additionally, although not usually
explicitly, courts seemed disinclined to create legal duties to avoid causing
purely emotional harm, often based on either undervaluing emotional
injury, or not wanting to cater to hypersensitivity.40
Starting in the early twentieth century, states somewhat liberalized
33
34
Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1670, 1673.
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt. b
(2010).
35
See id. (explaining that the distinction between bodily harm and emotional harm “is not precise
and may be difficult to make in certain cases, but the more restrictive rules for recovery for emotional
harm require that such determinations be made” (citation omitted)).
36
Levit, supra note 7, at 140 (“Historically, tort law compensated only direct and tangible injuries
to persons or property.”). Levit explains that, “[t]he early history of tort law is not without examples of
torts based on emotions, such as seduction or alienation of affections. But those torts were based on the
possession of people as property interests.” Id. at 140 n.15; see also William R. Corbett, A Somewhat
Modest Proposal to Prevent Adultery and Save Families: Two Old Torts Looking for a New Career, 33
ARIZ. ST. L.J. 985, 1025 (2001) (“Since the early twentieth century, there has been a movement in
American tort law to loosen it from its moorings in recognizing recovery for only injury to physical
person and property.”).
37
See Magruder, supra note 7, at 1035–36 (discussing the issue of separation of mental harm
where the physical harm was an effect of the emotional distress).
38
See Chamallas, supra note 7, at 497 (“The popular cynicism surrounding the tort system may in
part reflect the belief that plaintiffs who seek large sums for intangible injuries are the least deserving,
that their very willingness to exploit the system is a testament to the superficiality of their injury.”).
39
See Leslie Benton Sandor & Carol Berry, Recovery for Negligent Infliction of Emotional
Distress Attendant to Economic Loss: A Reassessment, 37 ARIZ. L. REV. 1247, 1253 (1995) (explaining
that legal protections for emotional damages were considered in cases where bodily harm was caused
as a result of nervous shock and emotional distress).
40
See Spade v. Lynn & B.R. Co., 47 N.E. 88, 89 (Mass. 1897) (explaining that asking people to
“anticipate and guard against fright and the consequences of fright . . . would open a wide door for
unjust claims”), overruled by Dziokonski v. Babineau, 380 N.E.2d 1295, 1299 (Mass. 1978); Lynch v.
Knight, (1861) 11 Eng. Rep. 854 (H.L.C.) 863 (“Mental pain or anxiety the law cannot value, and does
not pretend to redress . . . .”).
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access to the courts for plaintiffs suffering from emotional injuries.41 To
accomplish this, while remaining cognizant of the perils inherent in
redressing emotional harm and attempting to preserve predictability in the
doctrine, courts began to draw somewhat arbitrary lines between
compensable and non-compensable emotional harm.42 Some courts began
to treat certain types of emotional harm that could be objectively verified
or had outward physical manifestations as bodily harm.43 The latest
Restatement, however, rejects this approach, seeking to avoid “the
unfortunate effect of diluting the definition of bodily harm.”44
In response to requests from law professors,45 and in recognition of
feminist critiques of the physical/emotional distinction,46 courts and the
Restatement have liberalized access to compensation for emotional
injuries. Separate causes of action were created for the “stand alone”
emotional harms of intentional infliction of emotional distress for behavior
that was extreme and outrageous.47 Eventually, despite initial resistance,48
negligent infliction of emotional distress (NIED) also became a standard
tort.49 The development of NIED has been a problematic process, and
41
Philip L. Merkel, Pain and Suffering Damages at Mid-Twentieth Century: A Retrospective
View of the Problem and the Legal Academy’s First Responses, 34 CAP. U. L. REV. 545, 559 (2006).
42
See Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1671 (explaining that by the end
of the twentieth century, courts drew lines restricting emotional distress claims without sound
justification for making the distinctions).
43
See Reilly v. United States, 547 A.2d 894, 894–96 (R.I. 1988) (denying the emotional distress
claims of parents who witnessed the negligent delivery of their child due to lack of outward
manifestations of distress); Hunt v. Mercy Med. Ctr., 710 A.2d 362, 366 (Md. Ct. Spec. App. 1998)
(“[A]n emotional injury (such as mental anguish or emotional distress) may come within the ambit of
the ‘physical injury’ rule by virtue of its outward manifestations.”).
44
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt. d
(2010). According to the Restatement, “emotional harm constituted physical illness,” which exists on
the margin between physical and emotional injury, like headaches, nausea, or hysterical attacks, should
be considered psychic injury. Id.
45
Rapp, supra note 7, at 113, 131–32; see also Merkel, supra note 41, at 555 (describing the legal
academy’s efforts to advance a negligent infliction of emotional distress tort).
46
See Chamallas, supra note 7, at 525 (discussing the female experience of a physical harm
becoming an emotional injury).
47
See, e.g., Miller v. Currie, 50 F.3d 373, 378 (6th Cir. 1995) (allowing an intentional infliction
of emotional distress claim where a nursing home hid an elderly woman from her adult daughter and
caused the daughter to be arrested for visiting her mother); Fletcher v. W. Nat’l Life Ins. Co., 89 Cal.
Rptr. 78, 93, 99 (Cal. Ct. App. 1970) (finding that the defendant’s premeditated and malicious conduct
of denying plaintiff disability benefits to save money was outrageous).
48
According to William Keaton, author of the Second Restatement, “[t]he temporary emotion of
fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily
counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff
against mere negligence, where the elements of extreme outrage and moral blame which have had such
weight in the case of the intentional tort are lacking.” W. PAGE KEETON ET AL., PROSSER AND KEETON
ON THE LAW OF TORTS 361 (5th ed. 1984) (citations omitted).
49
“The NIED tort represents the current wave of expansion and uncertainty in emotional distress
liability.” Kontorovich, supra note 9, at 495. Only Arkansas and New Mexico prohibit any claims for
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50
courts and scholars still struggle to make sense of this tort. At first,
claims for negligently inflicted emotional distress required a plaintiff to
allege and demonstrate some slight physical injury so that there was at
least some de minimis physical impact or manifestation along with the
emotional injury.51 Eventually, many courts adopted the zone of danger
rule, which requires the plaintiff to prove having been distressed over the
prospect of imminent physical harm by having been placed, by the
defendant’s carelessness, in danger of such harm.52 These barriers to
compensation for emotional injuries made little sense to most
commentators,53 but courts preferred stand-alone emotional distress claims
while mooring these claims to either some physical impact or risk of bodily
harm.
Although only a few states still maintain zone of danger requirements
as a prerequisite for any NIED claim,54 all jurisdictions currently maintain
some type of heightened pleading requirements for stand-alone emotional
injury.55 The latest Restatement provides that intentional infliction of
emotional distress is actionable if the defendant’s conduct is
intentional/reckless and outrageous, and if it causes the plaintiff severe
emotional injury.56 Negligent infliction of emotional distress is actionable
negligent infliction of emotional distress. John J. Kircher, The Four Faces of Tort Law: Liability for
Emotional Harm, 90 MARQ. L. REV. 789, 809 (2007); Rapp, supra note 7, at 138.
50
John C. P. Goldberg & Benjamin C. Zipursky, Civil Recourse Defended: A Reply to Posner,
Calabresi, Rustad, Chamallas, and Robinette, 88 IND. L.J. 569, 604 (2013) (“[I]ndeed we continue to
wrestle with the topic of negligent infliction of emotional distress, as do many torts scholars of all
political and methodological persuasions.”); Eugene Kontorovich, Comment, The Mitigation of
Emotional Distress Damages, 68 U. CHI. L. REV. 491, 494 (2001) (“With negligent infliction of
emotional distress torts . . . courts continue to struggle to create sensible limits on recovery while
avoiding arbitrary limitations.”).
51
For excellent histories of the development of negligent infliction of emotional distress, see
JOHN C. P. GOLDBERG ET AL., TORT LAW: RESPONSIBILITIES AND REDRESS 737–38, 753–59 (3d ed.
2012) (describing the development of claims for emotional distress in American tort law); Levit, supra
note 7, at 141–44 (detailing the development of the tort over the course of the twentieth century, from
the time that courts denied recovery for emotional injury alone to the recognition of mental disturbance
as a cause of action).
52
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 47 cmt. b
(2012).
53
See, e.g., Levit, supra note 7, at 170–71 (“In using proxies such as ‘the zone of danger’ and the
nature of the legal relationship between plaintiff and victim to test the reality and measure the severity
of emotional injury, courts repair to awkward geographic indicators and formal status relationships as
talismanic formulas to establish the existence of emotional harms. Yet the factors on which courts rely
to confirm the presence of emotional distress often are not directly related to mental equilibrium.”). But
see GOLDBERG ET AL., supra note 51, at 758 (explaining the zone of danger limitation as involving
negligent endangerment that fortuitously did not result in physical injury).
54
David DePianto, The Hedonic Impact of “Stand-Alone” Emotional Harms: An Analysis of
Survey Data, 36 LAW & PSYCHOL. REV. 115, 121–22 (2012).
55
See Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1673 n.131 (noting that two
jurisdictions have “flirted with” a general duty to avoid emotional harm).
56
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 46 (2012).
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if it is serious and either (1) places the plaintiff at risk of physical harm, (2)
occurs in the course of specified categories of activity or relationships
where serious emotional harm is more likely to result,57 or (3) causes
serious bodily harm to a close family member of the plaintiff, who
contemporaneously perceives the harm.58
Further evidence of the Restatement’s liberalization of compensation
for emotional damages appears in the rule that if an emotional injury leads
to objectively measurable physical harm, such as a miscarriage or a suicide
(but not merely nausea or headaches), then the plaintiff’s claim is one for
physical injury, and the limited duty rules that would otherwise constrain
liability no longer apply.59 This was not always the case, as miscarriages
caused by fright were historically not compensable.60 Now, likely in
response to feminist critiques, the Restatement allows emotional injury to
serve as the conduit to claims of physical injury with its lower pleading
requirements, but still maintains the categorical distinctions between
physical and emotional injury.
B. Parasitic Damages vs. The Eggshell Psyche Rule
Although the development of torts for emotional injuries has been
fractured, there are two doctrines on which courts generally agree—
parasitic damages and the “eggshell psyche” rule. Parasitic damages
involve damages for emotional distress or other injuries that flow from a
physical injury.61 The “eggshell psyche” rule is a variant on the eggshell
skull rule that would allow plaintiffs to collect for emotional damages even
if their emotional response is unreasonable or the result of a pre-existing
condition.62
Despite initial and some continued reluctance to compensate plaintiffs
57
Courts recognize relationships in which one party is particularly emotionally vulnerable due to
the activities being performed by the other party. These include liability on hospitals and funeral homes
for mishandling corpses and on telegraph companies who erroneously inform someone of the death of
another. See id. at § 47 cmt. b (“[C]ourts have imposed liability on hospitals and funeral homes for
negligently mishandling a corpse and on telegraph companies for negligently mistranscribing or
misdirecting a telegram that informs the recipient, erroneously, about the death of a loved one.”).
58
Id. at § 48; cf. Appleton v. Bd. of Educ. of the Town of Stonington, 757 A.2d 1059 (Conn.
2000).
59
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt d
(2012).
60
See Chamallas & Kerber, supra note 7, at 814–15 (arguing that miscarriages or stillbirths were
one type of “fright-based physical injury” cases that the law did not recognize).
61
See, e.g., Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 148 (2003) (“Unlike stand-alone
claims for negligently inflicted emotional distress, claims for pain and suffering associated with, or
‘parasitic’ on, a physical injury are traditionally compensable.”).
62
See, e.g., Gammon v. Osteopathic Hosp. of Me., Inc., 534 A.2d 1282, 1285 (Me. 1987) (“We
do not provide compensation for the hurt feelings of the supersensitive plaintiff—the eggshell
psyche.”).
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for emotional injury, parasitic damage is one area where early courts
uniformly allowed compensation for psychological harm.63 If a plaintiff
demonstrates bodily injury or the invasion of certain other types of
interests, he can be awarded the full extent of his psychological injuries
without being subject to any heightened substantive standards, which are
necessary when asserting purely emotional claims.64 Examples of damages
given for pain and suffering “parasitic” to physical injury include
emotional damage awards based on ingestion of tainted medication that
causes physical injury,65 compensation for fear of developing cancer when
the plaintiff suffered a physical injury leading to that fear,66 and damages
for pain and suffering.67
These parasitic damages do not concern courts in the same way as
stand-alone emotional claims, perhaps because courts are less concerned
that parasitic emotional claims are fraudulent,68 or perhaps because
parasitic damages do not threaten courts’ conception of physical injuries as
more worthy of protection.69 Goldberg and Zipursky theorize that the
disparate treatment of parasitic damages can be explained by the implicit
view that emotional tranquility on its own, except in rare circumstances, is
insufficient to saddle defendants with duties to protect others’ emotional
well-being.70 Tort law is less willing to protect emotional injuries that are
unrelated to either bodily integrity or to an independent, non-emotional
63
See Chamallas, supra note 7, at 491 (noting that courts justified awards for pain and suffering
or other mental distress associated with physical injuries by explaining that the physical injury was the
basis for the claim).
64
See, e.g., Gracey v. Eaker, 837 So. 2d 348, 350–51 (Fla. 2002) (holding that the impact rule,
which requires that a plaintiff seeking emotional damages for negligence prove that her emotional
injuries stemmed from a physical injury, was inapplicable in a case where the plaintiff also alleges a
breach of fiduciary duty).
65
Hunter v. CVS Pharmacy, No. 1:09–CV–246, 2011 WL 167270, at *5 (E.D. Tenn. Jan. 19,
2011).
66
See, e.g., Ferrara v. Galluchio, 152 N.E.2d 249, 252–53 (N.Y. 1958) (upholding emotional
distress damages where the plaintiff had been negligently burned in X-ray treatments and warned to
have her tissue examined periodically to check for cancer).
67
Damages for “pain and suffering” can be for mental and physical pain. Kyle R. Crowe, The
Semantical Bifurcation of Noneconomic Loss: Should Hedonic Damage Be Recognized Independently
of Pain and Suffering Damage?, 75 IOWA L. REV. 1275, 1276 (1990).
68
Flax v. Daimlerchrysler Corp., 272 S.W.3d 521, 527 (Tenn. 2008) (noting that parasitic
damages “avoid[] the trivial or fraudulent claims that have been thought to be inevitable due to the
subjective nature of [emotional] injuries.” (quoting Camper v. Minor, 915 S.W.2d 437, 440 (Tenn.
1996))).
69
According to Martha Chamallas, “[w]hen plaintiffs recovered for pain and suffering or other
mental distress associated with physical injuries, the courts were careful to explain that these damages
were ‘parasitic’ and that the cause of action was fundamentally based on physical injury.” Chamallas,
supra note 7, at 491.
70
See Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1673 (“[A]ctors are not ordinarily
under a legal duty to be vigilant of others’ emotional well-being.”).
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71
interest. This reasoning underlies why torts like slander and libel have a
long history of compensability, even though these torts are often
accompanied by, and perhaps primarily manifested through, emotional
distress.72 Even so, emotional distress does not form the injury giving rise
to claims for defamation: “there is still a predicate harm in this case—the
intangible predicate harm of reputational damage—that provides the
foundation for the cause of action.”73
Courts thus allow emotional distress claims parasitic on an
independent tort without the heightened showing necessary for stand-alone
emotional distress.74 However, in many cases, even where there is some
other interest at stake—like the freedom from physical injury or property
damage caused by a defective product in products liability law,75 or the
interest in the quiet enjoyment of one’s property in nuisance law76—courts
still refuse to compensate plaintiffs who have experienced only emotional
injuries. If a plaintiff’s defective lawnmower explodes without
endangering him physically, yet he is nonetheless seriously distressed, then
that distress alone is not compensable. These areas of tort law demonstrate
courts’ continuing desire to distinguish physical from emotional harms.
Like parasitic damages, the courts have generally handled
“unreasonable” emotional reactions uniformly. Most courts bar recovery
for stand-alone emotional injury, like negligent infliction of emotional
distress, unless a defendant’s actions are of a sort that would cause serious
emotional distress, even to a person of reasonable or ordinary resilience.77
This is a deviation from the treatment of physical harm in two ways.
First, to recover for physical injury, there is no requirement that a
71
Id. at 1668.
Id. at 1689.
73
Id.
74
See, e.g., Jacobsen v. Allstate Ins. Co., 215 P.3d 649, 649 (Mont. 1999) (holding that a plaintiff
need not satisfy the heightened threshold showing of serious or severe emotional injury for emotional
damages that are parasitic on an Unfair Trade Practices Act claim against auto insurer).
75
RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. § 21 (1998).
76
Gregory C. Keating, Nuisance as a Strict Liability Wrong, 4 J. TORT L. 1, 23 (2012)
(“[P]ure emotional harm such as fears arising from the perception of an environmental risk, or the
perceived undesirability of certain neighbors, will generally not suffice to make out a claim of
nuisance.”).
77
See, e.g., Theriault v. Swan, 558 A.2d 369, 372 (Me. 1989) (“In order to recover for either
negligent or reckless infliction of emotional distress, a plaintiff must demonstrate that the harm alleged
reasonably could have been expected to befall the ordinarily sensitive person.”); RESTATEMENT
(THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 47 cmt. j (2012) (“The requirements
that the harm be serious, that the circumstances of the case be such that a reasonable person would
suffer serious harm, and that there be credible evidence that the plaintiff has suffered such harm better
serve the purpose of screening claims than a requirement of physical consequences.”).
72
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78
plaintiff’s physical harm be serious. Second, under the “eggshell
plaintiff” rule that applies to physical injury, a defendant is liable for the
full extent of a plaintiff’s physical harm, even if that physical harm
resulted from the plaintiff’s being easily injured or having a preexisting
condition that renders him physically infirm.79 For example, a defendant
was liable to the decedent of a plaintiff who suffered from coronary disease
after a car accident, which caused him to suffer bruised ribs and a fractured
ankle, resulted in a heart attack days later.80
In the case of stand-alone emotional injury, for a defendant to be liable
at all, the emotional injury needs to be not only serious, but also of a sort
that would have been suffered by a person of ordinary resilience.81 In such
a case, a plaintiff can recover the full extent of his emotional damages,
even above and beyond those that a reasonable person would have
suffered.82 In this way, a modified “eggshell psyche” rule attaches at the
phase of determining the extent of damages, which will be fully awarded if
an injury is reasonably serious. That all physical injuries, regardless of how
trivial or unreasonable, subject defendants to liability to their full extent is
another indicator that bodily integrity is deemed more protectable than
emotional tranquility.
III. CHALLENGES TO THE PHYSICAL/EMOTIONAL DISTINCTION
For almost a century, scholars have questioned the lesser protection
that tort law affords emotional injuries.83 In recent years, scientific
advances and critical examinations of the distinction have eroded our
intuitions about the differences between physical and emotional harms.
New developments in neuroscience and social science have provided
78
See RESTATEMENT (THIRD) OF TORTS: LIAB. PHYSICAL & EMOTIONAL HARM § 4 cmt. c
(2010) (“Given the function of the definition, any level of physical impairment is sufficient for liability;
no minimum amount of physical harm is required.”).
79
See Levit, supra note 7, at 178–79 (“Tort plaintiffs with ‘eggshell’ skulls are recompensed for
all resulting injuries, while those with ‘eggshell’ psyches are denied any compensation.” (footnotes
omitted)).
80
Benn v. Thomas, 512 N.W.2d 537, 538 (Iowa 1994).
81
See Rodrigues v. State, 472 P.2d 509, 520 (Haw. 1970) (defining a serious or severe injury as
one “where a reasonable person, normally constituted, would be unable to adequately cope with the
mental stress engendered by the circumstances of the case”).
82
In most jurisdictions courts ask would a reasonable plaintiff suffer serious emotional distress,
but once this is established, the extent of damages does not depend on the reasonable person. See
RESTATEMENT (THIRD) OF TORTS: LIAB. PHYSICAL & EMOTIONAL HARM § 47 cmt. l (2010).
83
See Francis H. Bohlen, Fifty Years of Torts, 50 HARV. L. REV. 725, 732–34 (1937) (discussing
how courts tend to limit or deny recovery for emotional harms); Richard Delgado, Words That Wound;
A Tort Action for Racial Insults, Epithets, and Name Calling, 17 HARV. C.R.-C.L. L. REV. 133, 143–45
(1982) (stating that it is an affront to the American tradition against stigmatization that the emotional
harm caused by racial slurs is not recognized as a dignity harm); Magruder, supra note 7, at 1042–43
(stating that many courts will allow emotional harm only if the plaintiff also suffered some sort of
physical harm).
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information bearing on the normative justifications for the
physical/emotional distinction.84 Feminist scholars have challenged these
normative justifications head on, arguing that the distinction both reflects
and perpetuates gender bias.85 These criticisms, taken together,
convincingly refute certain standard justifications for the distinction
between physical and emotional harm. While one conclusion to draw from
such a refutation would be to discard the distinction, it is not the only
possible conclusion. I argue instead that these critiques augment our
understanding of emotional harm and provide a more compelling
justification for the distinction. Further, support for the mental/physical
distinction can be found within neuroscience, social science, and feminist
scholarship.
A. Measuring Emotional Harm
One pillar of the physical/emotional distinction is the insistence that
only physical harms can be directly observed and verified.86 If emotional
harm could be objectively detected and measured, there would be less
concern that plaintiffs will fake emotional injuries, and less reason to
afford emotional harm inferior status. Although technology does not
provide us with the capacity to conclusively demonstrate the existence or
severity of psychic injuries, a sustainable justification for the
physical/emotional hierarchy must confront technology’s increasing
capacity to do so.
Technology that measures activity in the brain has improved at a
dramatic rate,87 and, with it, neuroscientists’ understanding of the
regulation of emotions has also improved. By the early twentieth century,
medical doctors and psychologists had amassed research that emotional
disturbances affect individuals on a physiological level.88 Scientists can
now use functional magnetic resonance imaging (fMRI) to measure the
84
See Adam J. Kolber, The Experiential Future of the Law, 60 EMORY L.J. 585, 587–88 (2011)
(“[T]echnological advances in neuroscience are beginning to provide more accurate methods of
measuring experiences.”).
85
See Cordelia Fine, Is There Neurosexism in Functional Neuroimaging Investigations of Sex
Differences?, 6 NEUROETHICS 369, 370 (2013) (noting that feminists are challenging current
neuroimaging studies for perpetuating traditional gender biases).
86
R. Bruner, Proving Emotional Harm in Tort Law, NEULAW (Nov. 30, 1999),
http:neulaw.org/blog/1034-class-biol/2346-proving-emotional-harm-in-tort-law.
87
See Kolber, supra note 84, at 588.
88
Nockleby & Curreri, supra note 7, at 1071; see, e.g., Herbert F. Goodrich, Emotional
Disturbance as Legal Damage, 20 MICH. L. REV. 497, 498 (1922) (explaining that Drs. George W.
Crile and Walter B. Cannon’s research established strong links between emotions and physical aspects
of the body); Fowler V. Harper & Mary Coate McNeely, A Re-examination of the Basis for Liability
for Emotional Distress, 1938 WIS. L. REV. 426, 426 (“It is true, of course, that all emotional
disturbances are at the same time physiological so that the distinction between emotional distress and
physical harm, as usually drawn by the courts, may not be strictly scientific.”).
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89
effects of certain types of psychological harm.
The fMRI technique measures blood flow throughout the brain.90 The
theory behind fMRI is that localized areas of the brain that are active, for
example in response to a painful stimulus, require more oxygen.91 This
increased oxygen consumption creates an increased flow of oxygenated
blood to serve active neurons.92 An fMRI machine measures the increased
flow of blood using a signal called the Blood Oxygen Level Dependent
(BOLD) signal.93 Other tools measure brain activity besides fMRI. A
positron emission tomography (PET) scan uses decaying radioactive
isotopes to detect energy metabolism, which is linked to brain function,94
much as fMRI uses the BOLD signal to detect blood flow.
Scientists can now use fMRI and PET scans to study the types of
“invisible injuries” that are normally considered non-physical, like pain
and emotional distress.95 Already, fMRI scans have been used to
differentiate patients with chronic pain from those without pain.96 Studies
indicate that an individual’s self-reported degree of pain correlates fairly
well with activation of the regions of the brain that mediate pain.97 In
subjects who are uncoached, those merely imagining the idea of pain can
be distinguished on an fMRI scan from those actually experiencing pain.98
Functional brain scanning technology is also beginning to have the
capacity to objectively measure and demonstrate the changes in neural
89
In addition to fMRI, there are many other techniques for mapping the brain’s structure and
function, such as electroencephalography and scans using positron emission technology, but fMRI is
believed to have the most potential for furthering our understanding of the brain and behavior. See
Laurence R. Tancredi & Jonathan D. Brodie, The Brain and Behavior: Limitations in the Legal Use of
Functional Magnetic Resonance Imaging, 33 AM. J.L. & MED. 271, 271–72 (2007) (discussing how
fMRI can be used to study the effect of emotional harm on the brain).
90
Shaun Cassin, Comment, Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge
Longstanding Treatment of Tort Injuries, 50 HOUS. L. REV. 929, 941 (2013) (quoting Owen D. Jones et
al., Brain Imaging for Legal Thinkers: A Guide for the Perplexed, 2009 STAN. TECH. L. REV. 5, ¶ 17).
91
Id.
92
Tancredi & Brodie, supra note 89, at 274–75.
93
Id. For a thorough discussion of the significance of the BOLD signal in determining which
neurons are actually firing, see Teneille Brown & Emily Murphy, Through a Scanner Darkly:
Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States, 62 STAN. L. REV.
1119, 1139–40 (2010).
94
Cassin, supra note 90, at 942; Tancredi & Brodie, supra note 89, at 274, 276–77.
95
See Cassin, supra note 90, at 942–43 (stating that fMRI and PET can be used for plaintiffs to
prove their emotional or invisible injuries).
96
See M. C. Lee & I. Tracey, Imaging Pain: A Potent Means for Investigating Pain Mechanisms
in Patients, 111 BRIT. J. ANAESTHESIA 64, 67 (2013), available at http://bja.oxfordjournals.org/
content/111/1/64.full.pdf+html (“Early fMRI studies have shown altered functional activation for PFC
by noxious stimuli in patients with chronic pain.”).
97
Amanda C. Pustilnik, Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral
Dimensions of Law, 97 CORNELL L. REV. 801, 812 (2012).
98
Stuart W.G. Derbyshire et al., Cerebral Activation During Hypnotically Induced and Imagined
Pain, 23 NEUROIMAGE 392, 395, 398 (2004).
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99
circuitry that accompany serious emotional harm.
Grey:
According to Betsy
Extensive and replicated research has revealed brain regions
that are associated with emotional trauma. In particular,
structural and functional neuroimaging results implicate
specific subregions of the medial prefrontal cortex (MPFC),
orbitofrontal cortex (OFC), anterior cingulated (ACC), and
insular cortices, the amygdala, and the hippocampus in the
processing of emotional information. Research suggests that
dysfunction in this circuitry triggers and maintains emotional
disorders.100
One of the most commonly studied instances of emotional trauma
evidenced by disruption to neural pathways is Post Traumatic Stress
Disorder (PTSD). This disorder occurs after an individual consolidates the
memory of a traumatic event.101 When an individual is subjected to
extreme stress, the amygdala, which serves as the emotion center and
stimulates arousal, becomes hyperactive.102 At the same time, the prefrontal cortex, which allows the individual to process and understand those
emotions, becomes less active.103 This leads an individual with an acute
anxiety disorder, such as PTSD, to display a threat-oriented bias in
interpreting events.104 Using fMRI and PET scans, scientists have
examined the dysregulation of the amygdala and pre-frontal cortex in
patients suffering from PTSD.105 The delayed emotional effects of
exposure to a traumatic event, and even emotional changes based on brief
exposures to a single stressor, can now be objectively measured.106
In light of science’s increasing ability to measure emotional harm,
scholars argue that continued dedication to the rigid categories of physical
and emotional harm reflects backward, unscientific thinking.107 Betsy
99
But see Cassin, supra note 90, at 959 (“In the near future, neuroscience will likely be a helpful
tool for litigants with invisible injuries. In contrast, it will not be useful for plaintiffs with
emotional injuries.”).
100
Grey, Neuroscience and Emotional Harm in Tort Law, supra note 7, at 213 and accompanying
notes.
101
Id. at 213–15.
102
Id. at 214–15.
103
Id. at 214–15.
104
Id. at 215.
105
Lisa M. Shin et al., Regional Cerebral Blood Flow in the Amygdala and Medial Prefrontal
Cortex During Traumatic Imagery in Male and Female Vietnam Veterans with PTSD, 61 ARCHIVES
GEN. PSYCHIATRY 168–69 (2004).
106
See Grey, Neuroscience and Emotional Harm in Tort Law, supra note 7, at 217–18 (compiling
studies).
107
For example, in response to the proposed Restatement (Third) of Torts, with its “relentless
emphasis” on the distinction between physical and emotional harm, Oscar Grey commented that “[a]t a
minimum, this ‘emotional’/‛physical’ distinction casts a pall of apparent antiscience over our work and
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Grey, for example, argues that “this may be an appropriate time to reexamine our assumptions with regard to tort recovery for emotional
harm.”108 She proposes that the American system of evaluating emotional
distress should conform to the English approach.109 The English “unitary
view” abolishes the distinction between physical and emotional harm and
treats emotional harm “as an aspect of bodily harm”110 if the plaintiff can
show a diagnosable psychiatric illness.111
But neuroscience has its shortcomings, both practically and
philosophically, in undermining the physical/emotional distinction.
Scholars and scientists who argue that emotional injuries are the same as
physical injuries in their ability to be demonstrated objectively overstate
their case. The use of fMRI currently has many scientific limitations, and it
is expensive to administer.112 Further, this technology is vulnerable to the
malingering that impacts the way fMRI results appear because “we have
some control over our own brain activity.”113 Measuring emotional distress
presents even more challenges than other uses of fMRI. Each brain is
highly individualized, so it is difficult to determine what a “normal” brain
looks like and thus whether the plaintiff’s brain is functioning
abnormally.114 Additionally, subjects usually do not have baseline scans to
reveal whether their brains have been altered after a distressing event,
presenting major problems for causation.
However, technology that can render emotional injuries more objective
is improving rapidly. It may be true that “[e]merging technologies will
enable us to make inferences about others’ experiences more frequently
and with greater precision.”115 At least one court has already determined
that objective proof of the physiological basis for emotional injuries can
erase the distinction between bodily and emotional harm. In Allen v.
Bloomfield Hills School District,116 the plaintiff, a train conductor, suffered
from PTSD after colliding with an empty bus that he thought was filled
with schoolchildren.117 A Michigan appellate court held that the plaintiff’s
psychological injuries could constitute a bodily injury, given a doctor’s
affidavit that a PET scan “depicted decreases in frontal and subcortical
makes us appear obsolete from the outset.” Gray, Negligent Infliction of Emotional Distress, supra note
7, at 1193.
108
Grey, Neuroscience and Emotional Harm in Tort Law, supra note 7, at 203.
109
Id. at 204–05.
110
Id.
111
Id. at 220.
112
See id. at 278–286 (discussing the difficulties in using fMRI to measure brain function).
113
Kolber, supra note 84, at 600.
114
Cassin, supra note 90, at 945.
115
Kolber, supra note 84, at 589.
116
760 N.W.2d 811 (Mich. Ct. App. 2008).
117
Id. at 817–18 (Hoekstra, J., concurring in part and dissenting in part).
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activity consistent with depression and post traumatic stress disorder.”118
According to the court, “there should be no difference medically or legally
between an objectively demonstrated brain injury, whether the medical
diagnosis is a closed head injury, PTSD, . . . etc.”119
The Michigan court’s treatment of emotional harm as bodily injury is
ultimately unsustainable. The court created a legal category of “bodily
harm” that seems driven by prudential concerns about whether an injury
can be proven. This sort of line, between injuries that are currently
measurable and those that are not, has some appeal, but would subject the
duties we owe others to scientific constraints and progress. It would
undermine tort law’s expression of our normative social values and ability
to shape behavior based on accumulated notions of what we owe others
versus what we preserve in spheres of personal autonomy.120 Tort law
embeds normative ideals about what harms are protectable, and therefore
the line between protectable and un-protectable harm should not be
determined by the latest trends in scientific research.
Beyond that, developments in neuroscience can actually bolster the
argument for placing on victims at least some responsibility for handling
their emotional responses to traumatic events. In addition to demonstrating
that emotional injuries have objective, measurable components,
neuroscience is also revealing that individuals have the ability to affect
their own emotional states and even their own perception of pain. Studies
are beginning to show how much we can control our own brains. Scientists
have demonstrated how we can improve our memory and cognitive
functioning by performing certain tasks,121 and now neuroscience is
tackling our ability to control the parts of our brain that regulate pain and
emotion. As examples, training subjects to regulate the activation of the
rostral anterior, a brain region involved in pain regulation, causes a change
in the perception of a noxious stimulus.122 Teaching subjects to increase
activation in the anterior insula, involved in a variety of functions relevant
118
Id. at 814–15 (internal quotation marks omitted).
Id. at 816.
120
This statement about the functions of tort law holds true whether one “demand[s] a persuasive
normative theory of the function or value of tort law prior to engaging in first-order tort theorizing” or
whether one looks at the normative structure of tort law internally, by “exploring the connections
among the normative concepts and principles of tort law and ascertaining how they fit together within
the law.” Benjamin C. Zipursky, Rawls in Tort Theory: Themes and Counter-themes, 72 FORDHAM L.
REV. 1923, 1936–37 (2004). In either case, tort law serves purposes that either are, or should be,
manifest in the doctrine.
121
See, e.g., Eleanor A. Maguire et al., London Taxi Drivers and Bus Drivers: A Structural MRI
and Neuropsychological Analysis, 16 HIPPOCAMPUS 1091, 1094–1101 (2006) (explaining how taxi
drivers improved their memory when compared to bus drivers).
122
R. Christopher deCharms et al., Control over Brain Activation and Pain Learned by Using
Real-Time Functional MRI, 102 PROCEEDINGS NAT’L ACAD. SCI. U.S. 18626, 18627 (2005).
119
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123
to emotion, causes them to rate photographs more negatively.
These studies involve subjects who are taught to regulate their own
emotions by activating certain parts of their brain, but they indicate that
individuals have the ability to temper their own perception of emotions and
pain. In addition to fMRI studies, psychological studies also indicate that
low mood states and conditions, like major clinical depression, can be
alleviated using a variety of self-help techniques, like self-acceptance.124
Emotions may be as “real” physiologically as physical responses are, but if
they are more within our control, then the law ought to continue
distinguishing between them, at least to some extent.125
B. Valuing Emotional Harm
Not only does research indicate that emotional harms are rooted in and
detected by physiological changes, but social science is demonstrating that
emotional injuries, like sadness, hurt, loss, or mental health issues, are
often as damaging as physical harms. These findings refute the argument
underlying some courts’ efforts to maintain the physical/emotional
distinction that emotional harms are trivial when compared to physical
harms.
Cass Sunstein, for example, examined social science research on
hedonic value to conclude that individuals often overestimate the hedonic
losses from physical injuries.126 Even the loss of fingers and toes pose little
permanent hedonic damage because “human beings are unexpectedly
resilient,”127 as compared to the enduring hedonic losses of mental illness
or chronic pain.128 Sunstein proposes a line separating compensable,
enduring injuries and noncompensable, illusory losses to which people
quickly adapt.129 A distinction between enduring and illusory harm would
cut across the physical/emotional distinction and thus, in principle,
sometimes support expanding liability for wrongful conduct causing
123
Andrea Caria et al., Volitional Control of Anterior Insula Activity Modulates the Response to
Aversive Stimuli, 68 BIOLOGICAL PSYCHIATRY 425, 425 (2010).
124
Alice Diedrich et al., Self-Compassion as an Emotion Regulation Strategy in Major Depressive
Disorder, 58 BEHAV. RES. & THERAPY, July 2014, at 44.
125
Fox & Stein, supra note 5, at 16. Fox and Stein argue that plaintiffs have no greater ability to
control emotional harms than physical harms. Id. This conclusion appears to be based only on the
interdependence of functions of the mind and functions of the body. See id. at 7 (describing the concept
of “mind-body dualism”). However, the fact that the same “laws of physics” control both the brain and
the body, and that emotional injuries may cause physical symptoms and vice versa, does not rebut the
argument that emotional injuries that arise in the mind may be experienced and regulated differently
than other somatic injuries. Id. at 6.
126
Sunstein, supra note 14, at S164–66. Sunstein uses the term “hedonic” to capture the emerging
literature of how certain events impact the enjoyment of one’s life. Id. at S160.
127
Id. at S164.
128
Id. at S167.
129
Id. at S158.
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130
emotional distress.
Building on Sunstein’s article, David DePianto challenges the view
that stand-alone emotional harms are “everyday, usually trivial, often
transient, and a part of the price of living among people.”131 DePianto
performed empirical research on subjective well-being, an indicator of
happiness, to demonstrate that emotional health exerts a strong impact on
happiness, often stronger than physical health.132
Using data from over 55,000 participants,133 DePianto created
regression models with, as a dependent variable, questions asking
participants to rate their happiness and, as the independent variable,
answers to a variety of questions about the mental and physical health of
the participants.134 He found that the connection between emotional health
and subjective well-being has even stronger statistical significance than the
correlation between physical health and subjective well-being.135 Further,
there is a strong correlation between subjective well-being and
emotional/mental health even in individuals experiencing no physical
infirmities.136 This finding refutes the claim that physical injury contributes
to emotional distress in cases where emotional health is strongly correlated
with subjective well-being.137 DePianto’s study illustrates the enormous
impact of mental and emotional health on happiness, even in comparison to
physical health.
DePianto’s findings “challenge the distinctions currently drawn in tort
law” but only “[t]o the extent that the unequal treatment of physical and
emotional harms is based not upon practical concerns but upon the belief
that mental health is less important to the quality of life . . . .”138 Subjective
130
See id. (“It is important for the legal system to distinguish between harms that impose enduring
losses, such as chronic pain and mental illness, and harms that do not, such as losses of fingers and
toes.”). This distinction accords with Joel Feinberg’s widely known distinction between harm and
offense. See generally JOEL FEINBERG, HARM TO OTHERS 26 (1984) (distinguishing between the
“Harm Principle” and the “Offense Principle”). Feinberg traces the moral justifications for criminally
outlawing behavior by first demonstrating that the criminal law can intervene to prevent harm, or
wrongful setbacks to interest. Id. at 31–64. Feinberg then illustrates that the law can intervene to
prevent offense, or temporarily unpleasant mental states, but under more limited circumstances. Id. at
126–186. Like Sunstein, Feinberg’s line between harm and offense does not track the
physical/emotional distinction—disruption to emotional tranquility that sets back an interest is
considered a harm—but between longer lasting injury and fleeting unpleasantness.
131
DePianto, supra note 54, at 123 (footnotes omitted) (internal quotation marks omitted).
132
Id. at 115, 118.
133
Id. at 132–33.
134
Id. at 133–34. For example, one of the mental health questions asked to participants was,
“[d]uring the past 4 weeks, have you had any of the following problems with your work or other daily
activities as a result of any emotional problems (such as feeling depressed or anxious)?” Id. at 133.
135
Id. at 137.
136
Id. at 137, 141.
137
See id. at 122–23 (discussing the devaluation of emotional distress in the absence of physical
injuries).
138
Id. at 141.
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well-being studies have limitations and vocal critics, and even DePianto
admits that relating emotional health to happiness may be question
begging, as people may define happiness based on their emotional wellbeing.139 DePianto adequately answers this objection by showing how the
questions about emotional health and stability are sufficiently specific to
distinguish them from general notions of happiness.140 This Article accepts
the wisdom that emotional harm is often as impactful as physical harm. For
every quantum of physical harm less extreme than death, there may be a
matching emotional injury. Momentary embarrassment or hurt may be
trivial, but so is a scratch. A complete and permanent psychological
breakdown can be as debilitating as paralysis. People might rather be
punched in the face than lose their jobs, or break an arm rather than have
their heart broken. Often our emotional health dictates our happiness and
productivity far more than our physical capacities. There is no reason to
think that an enduring emotional injury is no more impactful than an
enduring physical injury, even if many emotional injuries are more fleeting
than many physical injuries. The idea that emotional harm is trivial stems
from a time when mental illness was stigmatized, and, perhaps, when
women’s voices and experiences were not equally represented in
consciousness shaping and judicial decision-making.141
Indeed, some might go even further, and argue that the way our mind
experiences the world is the only thing that matters, and that emotional
well-being is therefore paramount. We may be in physical decay, but if our
mind remains happy and cannot appreciate the pain, then our experience is
still of a good life. To this, J. J. C. Smart presents Robert Nozick’s famous
“experience machine” hypothetical:
Suppose there were an experience machine that would give
you any experience you desired. Superduper neuropsychologists could stimulate your brain so that you would
think and feel you were writing a great novel, or making a
friend, or reading an interesting book. All the time you would
be floating in a tank, with electrodes attached to your brain.
Should you plug into this machine for life, preprogramming
your life’s experiences?142
For those of us who would not plug into the machine, internal states of
happiness, fulfillment, and perception are less important than the truth of
139
Id. at 118.
See id. at 133–37 (discussing and evaluating the different variables used in questioning).
141
See infra Part III.C (describing the under-protection of emotional distress in tort law because
of its connection with women).
142
See J. J. C. Smart, An Outline of a System of Utilitarian Ethics, in UTILITARIANISM: FOR AND
AGAINST 3, 42 (J. J. C. Smart & Bernard Williams eds., 1973).
140
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the tangible connections with the outside world. Adam Kolber, who argues
that the law should more highly value subjective experience, believes that
the results indicating that most people would not plug into the machine are
partially due to a “status quo” bias; people choose their current situation
over a new situation, even when the new situation is an improvement.143
Research that attempts to reverse this status quo bias found that, when told
to imagine that their current lives were just the experience machine, fiftyfour percent of subjects would chance reality in a neutral scenario, but only
thirteen percent of subjects would disconnect from the machine if reality
were to be lived out as a prisoner in a maximum security facility.144
Although this study indicates that subjective experience can outweigh
the importance of “reality,” our brain’s perceptions of that experience are
not all that matter. It is still the descriptions of what life would be like on
or off the machine that determine whether the individual would remain
connected to the machine, not a conclusion that a person is happy or
miserable. The inputswhat we put into the experience machine, be it a
vacation, a family, or a jobmatter to people, not just the final feeling
states of happiness, sadness, and so on. People are attuned to what makes
them feel particular things, not just the feelings themselves.
The law should prioritize these inputs, the physical connections
between people and tangible changes in the outside world that create our
subjective experiences and feelings, not the feelings themselves. Our
brains may simply be experience machines that react to all we perceive and
effectuate, but the law has much less of a place navigating our internal
emotional lives than it does controlling the physical interactions that serve
as inputs into the machine. If the law seeks to protect particular interests,
like a reputational interest, an interest in bodily integrity, or an interest in
non-discrimination, it should protect these interests directly. It can allow
damages for emotional distress that flow from these infringements,145
instead of allowing the province of the mind to be an end in and of itself.
The law should prioritize individual’s rights and interests instead of forcing
people to take responsibility for others’ emotional states.
C. Gendering Emotional Harm
Criticisms based on neuroscience and social science remove some of
the justifications for the physical/emotional hierarchy, but leave room for
other rationales to maintain the distinction. The feminist critique instead
attacks the physical/emotional construct as stemming from bias and
143
144
Kolber, supra note 84, at 593.
Felipe De Brigard, If You like It, Does It Matter If It’s Real?, 23 PHIL. PSYCHOL. 43, 47–48
(2010).
145
See infra Part IV (describing doctrinal suggestions along these lines).
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835
perpetuating bias. Ultimately, however, even if the categories of physical
and emotional harm have roots in sexism, and even if these categories
continue to have a disparate impact on women, the physical/emotional
distinction could still be justified by other, legitimate rationales. In fact,
maintaining the physical/emotional hierarchy may even promote women’s
equality and autonomy.
Feminist scholars argue that emotional harm has been under-protected
in tort law because emotional distress is a concern mostly relevant to
women.146 Martha Chamallas likens the treatment of emotional distress
claims to the lower wages paid by jobs primarily associated with females;
both emotional injury and primarily female occupations are considered of
lesser status because of this association.147 Studies of wage gaps between
men and women who hold jobs of comparable worth, conducted both in
the United States and cross-culturally,148 have shown that pay or prestige
drops when a particular job becomes female-dominated.149
This example of the wage gap, however, cannot bear the load of
proving that emotional injuries are devalued because of their association
with women.150 The claim that female-dominated jobs receive less
compensation because women’s work is devalued is itself a controversial
descriptive account. Because “worth” is such a subjective term, “it is
scarcely surprising that different evaluators and evaluation systems have
attached different values to identical positions,”151 undermining the claim
that women receive lower pay in jobs of “comparable worth” to maledominated fields. Chamallas herself points to a study demonstrating that
women enter certain fields due to their lower status, earning potential, and
subsequent “male flight.”152 Thus, the cause and effect may be reversed; a
146
See Chamallas, supra note 7, at 499 (“[L]egal claims for emotional distress have been
devalued in part because they are associated with female plaintiffs.”); Chamallas & Kerber, supra note
7, at 816 (arguing that the reluctance to accept negligent infliction of emotional distress is partially due
to the marginalization of women and their experiences).
147
Chamallas, supra note 7, at 474–80.
148
Id. at 475–77 (citing ALICE H. COOK, COMPARABLE WORTH: THE PROBLEM AND THE STATES’
APPROACHES TO WAGE EQUITY 80–81 (1983)).
149
In Russia, where a large majority of doctors are women, the position has much less status and
prestige than in America. Chamallas, supra note 7, at 477, 477 n.41.
150
Chamallas’ own empirical research also convincingly demonstrates that women receive lower
damages awards generally, see id. at 480–82 (discussing a finding of lower damage awards to women
based on their lower work-life expectancy when compared to caucasian men), but this does not speak to
whether the physical/emotional distinction embodies and perpetuates deep cultural biases. Chamallas
contends that the fact that statistical tables select gender and race as predictors of lifetime earning
capacity is based on cognitive biases and gender- and race-based devaluation. Id. at 482–83. However,
these tables also use age, likely because all of these variables offer some population-based correlation
to income.
151
Deborah L. Rhode, Occupational Inequality, 1988 DUKE L.J. 1207, 1230.
152
See Chamallas, supra note 7, at 477 (citing BARBARA F. RESKIN & PATRICIA A. ROOS, JOB
QUEUES, GENDER QUEUES: EXPLAINING WOMEN’S INROADS INTO MALE OCCUPATIONS 11–15 (1990))
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field may become female dominated because it is devalued, not the other
way around. Just as the causal connection remains unclear in the wage gap
examples, it is possible that emotional damages are associated with women
and devalued, for either legitimate or illegitimate reasons, without an
underlying causal connection between the two.
Chamallas and Kerber also make a compelling case that the law of
fright historically limited recovery for women who suffered miscarriages
after experiencing nervous shock or witnessing physical harm to their
children because men did not experience comparable harm.153 However,
judges today do not seem to be operating on the same biases that women’s
interests are less worthy of concern, or that women’s emotional frailty is
less compensable.154 It is possible, as Chamallas proposes, that a
“conceptual vicious cycle” unconsciously perpetuates historical sexism by
classifying harm that could be either physical or emotional as emotional if
it is associated with women.155 However, even if part of the reason why
emotional damages are considered worthy of lesser protection, either
historically or currently, is their association with women, there still may be
other, more significant reasons for maintaining the physical/emotional
hierarchy.
The hierarchy that values physical harm over emotional harm may
have a disparate impact on women, who are generally the caregivers of
children and the most emotionally affected by their losses,156 and who are
also generally the victims of sexual harassment, a tort circumscribed
because it is primarily emotional in nature.157 But, as Chamallas
acknowledges, disparate impact is an insufficient justification in itself to
eliminate a legal category. Legitimate rules, which foster worthy social
aims, can have a disparate impact on either gender. Chamallas’ concern
must be that these categories perpetuate biases for no good reason.
According to Chamallas, because “the basic categories of physical injury,
property damage, emotional harm, and relational harm are themselves
(arguing that women entered clerical jobs vacated by men once the fields began to deteriorate due to
factors such as decreased wages and mobility).
153
Chamallas & Kerber, supra note 7, at 814.
154
Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1669.
155
Chamallas, supra note 7, at 469. She uses the example of miscarriages resulting from
emotional distress, which courts historically treated as emotional injury. Id. at 525. Her account may be
correct, but it is also plausible that courts were reluctant to categorize as “physical” subsequent injury
that was caused by the emotional effects of malfeasance, not by the malfeasance itself. Focusing on the
mechanism of the injury harmonizes consideration of miscarriages with intervening actor doctrines,
where the woman’s own distress intervened to convert an emotional injury into a physical injury. The
Restatement currently treats bodily injury that results from emotional distress as actionable bodily
injury if it is objectively measurable, but not if it produces vague, immeasurable symptoms, like
headaches and nausea. See supra Part II.
156
Chamallas, supra note 7, at 512.
157
Id. at 515.
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EMOTIONAL DUTIES
837
infected with gender and race bias, we should be wary of such categorical
thinking.”158
Chamallas’ critiques must be located within a general framework of
anti-formalism and critical legal studies.159 Indeed, Nancy Levit also
argues that the law relies too much on “rules as artifacts” in distinguishing
physical from ethereal injuries,160 denying science and depending on the
“comfortable certainty of legal rules and forms.”161 According to Levit,
“significant among the reasons why form emerges so persistently to trump
substance is a continuing reluctance to accept emotional and expectancy
interests.”162 This argument is somewhat circular, however, because a
reluctance to accept emotional injuries is an excellent reason to create a
category separating physical from emotional injuries, so long as there are
reasons for this reluctance. Levit persuasively shows that this reluctance is
not entirely based on problems of proof, because “[e]ven where the
evidence of the ethereal injury is as certain or more certain than evidence
admitted in other cases involving more traditional forms of injuries, the
ethereal tort is treated as unreal, foundationless, and underserving.”163
Thus, the problem is not with these ready-made legal categories.
Rather, the question is whether or not they are proxies for legitimate values
and goals. Maintaining the physical/emotional hierarchy against this type
of critical legal critique requires a demonstration that the categories are
useful rubrics for the types of harms that we want to protect. These
categories may serve important social functions even if they also may owe
their initial recognition to, and perhaps to some degree continue to
perpetuate, gender bias.
Instead of reflecting worthwhile social attitudes, Levit says, the
devaluation of emotional harm is based on notions that those who suffer
emotional harm are somehow weaker, and therefore at fault for their
injuries.164 She argues that this conception of emotional injury is too
individualistic, and “permits little recognition of the ways in which people
are socially constructed and encourages less in the way of communal
158
Id. at 530.
Anti-formalists and proponents of critical legal studies eschew rigid legal categories or pure
legal logic as being determinative of legal rights and duties. See Karl E. Klare, Critical Theory and
Labor Relations Law, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 539, 544–45 (David Kairys
ed., 3d ed. 1998) (“[T]he prevailing rules are not preordained by the nature of things, nor are particular
case results required by legal logic. To the contrary . . . legal rules and decisions are contingent and
conventional—they are products of human choice. There is always room for discretion . . . in applying
the rules . . . .”).
160
Levit, supra note 7, at 174.
161
Id.
162
Id.
163
Id.
164
Id. at 174–75.
159
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165
responsibility for one another’s harms.”
Decisions denying
compensation for emotional injuries, according to Levit, are really just
“statements regarding social conformity.”166
Levit’s argument proves too much. Most of tort law, if not all law, is
premised on standards to which we must all conform generally regardless
of individual capacity,167 or face either legal penalties or the denial of
remedies. In torts, these standards often operate against defendants, who
must act reasonably and take reasonable care to avoid injuring others
regardless of their own capacities for attentiveness, intelligence, and risk
aversion.168 Treating emotional injuries as less worthy of protection does
not force plaintiffs to behave a certain way, or even to react in particular
ways. Plaintiffs are free to experience and handle their emotions as they
see fit. However, like much of tort law, the physical/emotional hierarchy
carves out spaces where plaintiffs cannot collect on their injuries for a
variety of instrumental and deontological reasons. Indeed, there may even
be feminist reasons for maintaining the distinction.
Relaxing the physical/emotional construct may undermine women’s
equality and autonomy in two ways. First, an intellectual climate in which
emotional harm is seen as more protectable undermines agency. Feminist
narratives focusing on women’s trauma may result in paternalistic efforts
to limit their choices. Second, rectifying any disparate impact caused by a
prioritization of physical harm would reinforce the dominant paradigm that
views women as more “emotional.”169
Expanding claims for emotional harm will, in many cases, reduce
autonomy and undermine notions of consent for the population that the law
is trying to protect. For example, allowing intentional infliction of
emotional distress claims between divorcing spouses would “affect sexual
autonomy and experimentation within marriage,”170 especially if spouses
fear that they may later be sued for acts to which their spouse indicated
consent. Expansive emotional duties to others’ emotional well-being would
also reduce autonomy for both the putative plaintiff and the would-be
defendant in all manner of consensual relationships, from employer165
Id. at 176.
Id.
167
See infra note 319 and accompanying text (giving an example of a standard by which society
must conform to).
168
See, e.g., R.R. Co. v. Jones, 95 U.S. 439, 441–42 (1877) (“Negligence is the failure to do what
a reasonable and prudent person would ordinarily have done under the circumstances of the situation,
or doing what such a person under the existing circumstances would not have done.”).
169
Chamallas links the physical/emotional categories to “their respective gender[s] . . . to expose
the dominant structures of thought.” Chamallas, supra note 7, at 523.
170
See Brenda Cossman et al., Gender, Sexuality, and Power: Is Feminist Theory Enough?, 12
COLUM. J. GENDER & L. 601, 626 (2003) (discussing the dissenting opinion of a Texas Supreme Court
Justice who would have refused to recognize intentional infliction of emotional distress within a
marriage).
166
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employee to friends. These autonomy reductions will be worse for women,
who are already viewed as weaker, more emotional, and more needing of
protection from emotional trauma.
According to Jeannie Suk, feminism’s association of women with
trauma and the effort to protect women from traumatic events have created
an intellectual culture in which women are viewed as incapable of making
meaningful choices in certain situations and dependent on protection from
their own emotional distress.171 The emergence of “abortion trauma,”172 the
idea that women will later suffer distress after terminating a pregnancy,
was accepted by the Supreme Court as one justification for upholding the
Partial Birth Abortion Ban Act in Gonzales v. Carhart.173 Although Justice
Kennedy’s concern that women will suffer “depression and loss of
esteem”174 after an abortion has been sharply criticized as sexist and
paternalistic, it can be linked to a wave of feminist thought and activity that
began in the 1970s.
In an effort to protect women from workplace sexual harassment,
abusive relationships, and rape, dominant strands of the feminist
movement, starting in the 1970s, advanced theories of women harmed by
these ills as suffering great emotional trauma, from which they needed to
be protected.175 Battered Woman Syndrome proponents attempt to justify
the violence women committ against their abusive partners instead of
simply leaving their partners based on notions that their trauma impaired
their perceptions of their situations.176 Rape shield laws prevent defendants
from cross-examining rape victims about their past sexual history to avoid
the trauma of “a second brutalization in court.”177 Litigants now often
claim that sexual harassment, including rude jokes and crass remarks,
causes them to experience PTSD.178
The feminist theory of trauma and its proposed legislative responses
“has bred sensitivity to coercion, and skepticism of consent, in conditions
of gender subordination—particularly in women’s decisions and
171
Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110
COLUM. L. REV. 1193, 1194–97 (2010).
172
Id. at 1200–01.
173
550 U.S. 124, 159 (2007) (upholding the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. §
1531 (2006)).
174
Suk, supra note 171, at 1194–95 (quoting Carhart, 550 U.S. at 159).
175
Id. at 1197–1201.
176
See id. at 1208–09 (discussing the research of Lenore Walker, the feminist psychologist
credited with proposing the official medical recognition of the trauma known as Battered Woman
Syndrome).
177
Id. at 1205 (internal quotation marks omitted).
178
See id. at 1212–13 (“Psychologists have argued that workplace harassment, including
overhearing sexual jokes, or even rude comments can be a diagnosable cause of PTSD. . . . Claims of
PTSD in sexual harassment lawsuits are not common.”).
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179
experiences regarding their bodies.” This focus on women as needing
emotional protection from trauma ultimately deprives them of meaningful
choices based on the view that their ability to consent is questionable.
Sexual harassment laws prohibit certain behavior regardless of consent,
and “[d]omestic violence mandatory arrest and prosecution policies, which
exist in a majority of jurisdictions today, reflect precisely the concern that
the state must take certain actions to protect women from harm, even
against their own expressed views of their desires and interests.”180
Of course, intentional or unintentional torts perpetrated against women
often occur in a context without choice, or without gender subordination.
But, “[c]omplex changes in beliefs can spread throughout a culture.”181 The
language of trauma is now also being used to protect women from
instances lacking in the usual dynamics of gender subordination, such as
the abortion context. For example, the Court in Planned Parenthood of
Southeastern Pennsylvania v. Casey,182 which upheld portions of a
Pennsylvania law requiring that physicians inform a woman considering
abortion of the fetal gestational age and the nature of the procedure,
reflected on the distress that a woman might feel after learning this
information after an abortion and observed that “[i]t cannot be questioned
that psychological well-being is a facet of health.”183 This echoes the
sentiments of those who champion increased legal protection for emotional
well-being.
A greater blurring of the line between physical and emotional harm,
especially if adopted self-consciously in deference to the emotional harms
that women experience, would contribute to the intellectual movement that
has elevated emotional trauma as a grave harm against which women need
to be protected. For example, Martha Chamallas’s view that women are
especially harmed by limitations on recovery for emotional damages184
would encourage an even greater focus on paternalism to prevent women’s
emotional suffering. This risk magnifies if, as Chamallas and Kerber
propose, claims for infliction of emotional distress are to be viewed as
179
Id. at 1198.
Id.
181
Suk, supra note 171, at 1252.
182
505 U.S. 833 (1992).
183
Id. at 882; see also id. at 856 (noting the impact on human thinking and emotions that
overruling or upholding Roe v. Wade could have on people familiar with the decision); id. at 916–17
(Stevens, J., concurring in part and dissenting in part) (noting that the Court has upheld state
regulations in the past that “enhance[d] the deliberative quality” of the decision regarding whether or
not to have an abortion and further noting that these regulations were not meant to sway a woman’s
decision-making one way or another in this regard).
184
See Chamallas, supra note 7, at 499 (“My hypothesis is that legal claims for emotional distress
have been devalued in part because they are associated with female plaintiffs.”).
180
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“women’s rights claims, as attempts to pressure the legal system to
recognize and value the interests of women.”185
If the dominant view, as Chamallas believes, is that women are more
emotional,186 a re-structuring of the physical/emotional hierarchy based on
the idea that the current structure is unfair to women would solidify this
interpretation, and bring society further down the path of believing that
women need protection from emotional distress caused not only by others,
but also by their own decisions. Restricting claims for emotional distress
would “recognize that women are both victims and victimizers, that mutual
emotional vulnerability might be a positive as well as a negative aspect of
intimate relationships . . . and that seeing the emotional distress as a
‘women’s remedy’ is demeaning to women.”187 The law should respect the
capacity of women and men alike to reasonably handle emotional strife.
Women’s bodies should be protected, but they can bear some of the load of
protecting their own minds, especially if it allows them more choice about
their bodies.
IV. RESUSCITATING THE PHYSICAL/EMOTIONAL DISTINCTION
The feminist, scientific, and social science criticisms of the physical
emotional distinction have their weaknesses. For example, the capacity of
neuroscience to measure emotional distress objectively is still quite
limited,188 and decisions involving what types of injuries to protect should
rest on firmer theoretical grounding than the fortuities of which types of
emotional trauma fMRI studies are capable of measuring. Social scientists
have demonstrated that emotional injury can be as impactful as physical
injury to a person’s happiness,189 but appreciating this fact, if it is a fact,
does not necessitate that the law should treat emotional injury as equally
worthy of protection. Emotional injuries may have been overlooked
because of a devaluation of women’s perceived responses and experiences,
but if there are legitimate reasons for currently maintaining the hierarchy,
185
Chamallas & Kerber, supra note 7, at 816.
See Chamallas, supra note 7, at 522–23 (acknowledging that the “normative implications of
gendering” alludes to women being more emotional and men having less concern for relationships).
187
See Brenda Crossman et al., supra note 170, at 626–27 (discussing the dissenting opinion of a
Texas Supreme Court Justice who would have refused to recognize intentional infliction of emotional
distress within a marriage).
188
See Joshua W. Buckholtz & David L. Faigman, Promises, Promises for Neuroscience and
Law, 24 CURRENT BIOLOGY R861, R862 (2014), http://www.cell.com /current-biology/fulltext/S09609822(14)00920-8 (“[E]motional harm (i.e. mental suffering and emotional distress) is often treated as a
secondary consideration [in determining compensatory damages] because of the difficulty in obtaining
objective, quantitative measures of these mental states.”).
189
Emotional Problems After Traumatic Brain Injury, MODEL SYSTEMS KNOWLEDGE
TRANSLATION CENTER 2 (2010), http://www.msktc.org/lib/docs/Factsheets/TBI_Emotional_Problems
_and_TBI.pdf (“Feeling sad is a normal response to the losses and changes a person faces after
[traumatic brain injury]. Feelings of sadness, frustration and loss are common after brain injury.”).
186
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then neither the pedigree of the distinction nor possible disparate impact
necessarily should override these reasons. Any theoretical justification of
the physical/emotional distinction must be responsive to neuroscientists,
social scientists, and feminists,190 while simultaneously offering further
rationales for the distinction’s legitimacy.
Before such a justification can be offered, however, new definitions of
what is physical and what is emotional that can withstand changing
technology must be devised. Our understanding of physiology can help us
create better, more scientific definitions for the differences between
emotional injury and bodily injury. These differences should inform our
conception of how we protect physical versus emotional harm, but they
should not dictate this hierarchy. Instead, we need to grapple with deeper
reasons for this intuitive distinction. The physical/emotional distinction can
no longer be based on the view that emotional harm is less physiological or
less impactful.191 Instead, it can be justified by reference to a duty that we
owe to take care of ourselves, which in turn limits the duties others owe to
avoid distressing us. This duty can be situated within the various theories
of tort law that encompass deontological and instrumental reasons for
maintaining the physical/emotional distinction.192 Other areas of law also
reflect the same themes regarding the physical/emotional hierarchy.193
A. Defining the Categories
Courts and the Restatement have struggled to define the difference
between emotional injury and bodily injury. Courts often do a poor job
explicating this distinction, in part because some judges believe the
distinction is both obvious and ineffable.194 Further, medical personnel
have difficulty articulating the boundaries between one mental disorder
and another, and between individuals with mental disorders and those who
190
Accordingly, Part III of this Article addresses these three groups on their own terms.
See Buckholtz & Faigman, supra note 188, at R862 (“Emotional harm (i.e. mental suffering
and emotional distress) is often treated as a secondary consideration [in determining compensatory
damages].”).
192
See generally MARTHA CHAMALLAS & JENNIFER B. VRIGGINS, THE MEASURE OF INJURY:
RACE, GENDER, AND TORT LAW (2010).
193
See J.M. BALKIN & SANFORD LEVINSON, LEGAL CANONS 122 (2000) (“In tort law, as in many
other areas of contemporary law, the mechanisms that maintain the hierarchies of value are cognitive
processes . . . . Embedded
within
the
hierarchies
are
three
contrasting
categories:
physical/emotional . . . .”).
194
See Messer v. Kemp, 760 F.2d 1080, 1093 (11th Cir. 1985) (“Clearly the term ‘bodily injury’
is not a phrase which requires an elaborate explanation in order to be understood.”); Rogers v. State,
396 N.E.2d 348, 352 (Ind. 1979) (holding that the element of bodily injury does not render a robbery
statute unconstitutionally vague because the court “can think of no phenomenon of more common
experience and understanding than the concepts of ‘bodily injury’ and ‘physical pain’”).
191
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195
are not mentally ill. The Diagnostic and Statistical Manual of Mental
Disorders, which lists categories of mental disorders and their
manifestations, admits that “no definition adequately specifies precise
boundaries for the concept of ‘mental disorder.’”196
The Restatement (Third) of Torts: Liability for Physical and Emotional
Harm defines emotional harm as harm to “emotional tranquility.”197 This
harm “encompasses a variety of mental states, including fright, fear,
sadness, sorrow, despondency, anxiety, humiliation, depression (and other
mental illnesses), and a host of other detrimental—from mildly unpleasant
to disabling—mental conditions.”198 Emotional injuries manifest in the
“nerve centers.”199 The Restatement stresses that an essential distinction
between physical and emotional harm is whether an injury can be
objectively measured200:
This distinction is not precise and may be difficult to make in
certain cases, but the more restrictive rules for recovery for
emotional harm require that such determinations be made.
The essential difference is that bodily harm usually provides
objective evidence of its existence and extent while the
existence and severity of emotional harm is usually
dependent upon the report of the person suffering it or
symptoms that are capable of manipulation or multiple
explanations. Whether a specific injury constitutes bodily
harm and therefore supports a claim for liability of this
Restatement is a question of law for the court to decide.201
As technology improves, this focus on whether an injury is measurable will
lead to increased confusion and the blurring of the physical/emotional
distinction. If the law seeks to maintain the physical/emotional distinction,
it must formulate clearer, more precise definitions that recognize the
physiological manifestations and increasing measurability of emotional
and psychological harm. Although developments in science have led legal
scholars to blur the distinction between physical and emotional harm, these
same developments can also inform how we distinguish these types of
injuries from each other.
195
See AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS xxxi (4th ed. 2000) (“[T]here is no assumption that each category of mental disorder is a
completely discrete entity with absolute boundaries dividing it from other mental disorders or from no
mental disorder.”).
196
Id. at xxx.
197
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt. a
(2012).
198
Id. § 45 cmt. a.
199
Id. § 4 cmt. b.
200
Id.
201
Id. (internal citations omitted).
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Although the bases for the distinction between physical harm and
emotional harm cannot perfectly capture our intuitions and normative
inclinations about the differences between the two types of harms, there are
broad-brush principles that offer guidance. First, emotional harm impacts
neurotransmission, where nerve cells are connected through the release of
neurotransmitters in the synapses between neurons, causing electrical
signals to travel from one neuron to the next.202 Because emotional harm
affects neurotransmission, exchanges of chemical neurotransmitters, and
electrical excitation of neurons, it does not generally cause structural
changes within the brain, but instead causes functional changes, which are
currently measured by fMRI.203 Physical harm, in contrast, causes
structural changes to gross anatomy, and is often caused by physical
trauma.204 Even something like a brain tumor, which is not caused by
physical trauma, can impact cognition, emotional processing, and behavior,
as well as cause structural changes beyond neurotransmission in the
brain.205 In other words, brain tumors change the structure of the brain and
can be excised,206 which allows us to distinguish them from something like
depression that cannot be cured through surgery.
This basis for distinction is not without its complications. A disorder
like epilepsy, which would intuitively (and correctly) be classified as a
physical injury, manifests as changes in neurotransmission that create
runaway electrical excitation within the brain, causing seizures.207
202
See Robert Stufflebeam, Neurons, Synapses, Action Potentials, and Neurotransmission,
CONSORTIUM ON COGNITIVE SCI. INSTRUCTION (2008), http://www.mind.ilstu.edu/curriculum/neur
ons_intro/neurons_intro.php (stating that “[n]eurotransmitters are the chemical medium through which
signals flow from one neuron to the next at chemical synapses” and discussing, inter alia, the in-depth
process of electrical and chemical neurotransmission). For explanations on how neurotransmitters
impact mood, see CARROL E. IZARD, THE PSYCHOLOGY OF EMOTIONS 51 (1991) (discussing the neural
substrates of emotion, the scientific background of expressing emotion, the biological causes of
emotion, and the biological functions of emotion).
203
See Thomas Novack & Tamara Bushnik, Understanding TBI: Part 2—Brain Injury Impact on
Individuals Functioning, MODEL SYSTEMS KNOWLEDGE TRANSLATION CENTER (2010),
http://www.msktc.org/tbi/factsheets/Understanding-TBI/Brain-Injury-Impact-On-IndividualsFunctioning (explaining the functional changes that can be caused by moderate-to-severe brain injury,
such as trouble paying attention, thinking slowly, and becoming confused easily); U.C. San Diego Sch.
of Med., What Is fMRI?, CENTER FOR FUNCTIONAL MRI, http://fmri.ucsd.edu/Research
/whatisfmri.html (last visited Oct. 9, 2014) (describing how the data from a fMRI experiment is
analyzed to identify patterns of change).
204
See Novack & Bushnik, supra note 203, at 3 (discussing the physical problems that can result
from brain trauma, including coordination problems and difficulty maintaining daily structure or
continued participation in an activity).
205
See id. (“There are three general types of problems that can happen after [traumatic brain
injury]: physical, cognitive and emotional/behavioral problems.”).
206
See id. (discussing the severe problems that a person may face after suffering a traumatic brain
injury).
207
See CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
CURRENT TRENDS PREVALENCE OF SELF-REPORTED EPILEPSY – UNITED STATES, 1986–1990, 43
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However, these seizures are usually directly caused by physical impact or
trauma, such as brain cancer, head trauma, stroke, or drug abuse,208 and
thus can be considered part of physical harm.
Another broad basis for the distinction between physical and emotional
harm is that emotions, controlled by neural circuitry, can often be altered
or alleviated without physical, pharmacological, or surgical intervention,
and can sometimes be altered by decisions within the individual’s
control.209 Bodily injury, even injury to the head or brain, has this feature,
albeit to a much lesser extent.210 Thus, a positive thought can change one’s
mood from bleak to optimistic. Seeking out social interactions can
immediately make someone who has spent the day alone happier. This
holds true even with more serious emotional distress.211 Psychotherapy,
which normally involves no physical contact, can be as effective a cure for
certain forms of depression as medications.212 In contrast, psychotherapy
will certainly not be as effective as chemotherapy for a brain tumor.
Physical injury often requires physical interventions and medications to
avoid further deterioration, or it involves cellular changes that the body
performs on its own, and the healing process is more attenuated from
choices an individual makes. This basis for distinction is also imperfect,
due to the interconnectivity between the mind and the body. Depression,
like high blood pressure or muscular injuries, can be alleviated by physical
interventions such as exercise.213 Conversely, positive thinking may
MORBIDITY & MORTALITY WKLY. REP. 810, 810 (1994), available at http://www.cdc.gov/
mmwr/preview/mmwrhtml/00033483.htm (“Epilepsy is a chronic neurologic condition characterized
by abnormal electrical discharges in the brain manifested as two or more unprovoked seizures.”).
208
See Seizures, MEDLINEPLUS (Feb. 10, 2014) http://www.nlm.nih.gov/medlineplus/ency/article
/003200.htm (providing a non-exclusive list of causes of seizures).
209
See, e.g., Elizabeth Fernandez, Emotional Benefits of Meditation Revealed in Study of
Teachers, UCSF MEDICAL CENTER (Mar. 28, 2012), http://www.ucsfhealth.org/news/2012/03/
emotional_benefits_of_meditation_revealed_in_study_of_teache.html (noting that by meditating,
subjects “learned to better understand the relationship between emotion and cognition”).
210
For example, an individual can choose whether or not to undergo physical therapy, and this
will have some impact on the physical prognosis, but it is more attenuated.
211
There are strong links between depression and social isolation, and between companionship
and the easing of depression, see V. Osteberg & C. Lennartsson, Getting By With A Little Help: The
Importance of Various Types of Social Support for Health Problems, 35 SCAND J. PUB. HEALTH 197
(2007), available at http://www.ncbi.nlm.nih.gov/pubmed/17454924.
212
See Graeme Whitfield & Chris Williams, The Evidence Base for Cognitive–Behavioural
Therapy in Depression: Delivery in Busy Clinical Settings, 9 ADVANCES IN PSYCHIATRIC TREATMENT
21, 23–24 (2003) (compiling studies on the effectiveness of cognitive-behavioral therapy in comparison
with other treatment methods).
213
See, e.g., GARY M. COONEY ET AL., EXERCISE FOR DEPRESSION (REVIEW), COCHRANE
COLLABORATION 2 (2013) (noting that in thirty-five clinical trials, exercise indicated a moderate
clinical effect on depression); Gretchen Reynolds, Prescribing Exercise to Treat Depression, N.Y.
TIMES BLOGS (Aug. 31, 2011, 12:01 AM), http://well.blogs.nytimes.com/2011/08/31/prescribingexercise-to-treat-depression/ (reporting that 29.5% of depressed study participants who took SSRI
drugs and who exercised daily for four months achieved remission of their depression).
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214
improve physical symptoms and reduce mortality. The placebo effect
attests to the ability of the mind’s sense of hope to improve physical
symptoms to varying degrees.215 As a general rule, however, physical harm
requires a physical or chemical solution that directly impacts the body to
avoid further deterioration whereas emotional harm, often, does not.216
Emotional expression and perceived emotional support has been linked to
increased survival in cancer patients,217 but practicing psychological
coping strategies will not cure cancer by itself.
These broad generalizations distinguishing physical from emotional
harm can be used to form more precise definitions. As a start, physical
harm, or bodily injury, could be defined as injury to any part of the body
that is not the brain, plus injury to the structures of the brain through
trauma or tumor, independent of changes in neural circuitry. Purely
emotional harm could be defined as changes to one’s neural pathways or
balance of neurotransmitters that impact one’s moods, thoughts, feelings,
and cognition, and are not the immediate, direct result of physical trauma
or structural changes within the body.
At the margins, there may be difficulties classifying a particular injury
as physical or emotional. However, this definition captures what the
Restatement terms as “the ordinary distinction between bodily harm and
emotional harm.”218 Fright, shame, anger, and schizophrenia are all
considered emotional and psychological concerns, while brain tumors,
broken bones, and inflammation of the brain are all physical injuries. A
person’s being bothered by excessive noise or unpleasant odors—although
neither can be easily measured—would, under these new classifications, be
214
See, e.g., Toshihiko Maruta et al., Optimists vs Pessimists: Survival Rate Among Medical
Patients Over a 30-Year Period, 75 MAYO CLINICAL PROCEEDINGS 140, 142 (2000) (“The current
study . . . shows that explanatory style [(how people explain life events)] . . . is significantly associated
with . . . mortality beyond that due to age and sex.”).
215
One double-blind study showed that while the placebo effect does not actually decrease tumor
size, it can improve pain and appetite in subjects with cancer. Gisèle Chvetzoff & Ian F. Tannock,
Placebo Effects in Oncology (Review), 95 J. NAT’L. CANCER INST. 1, 19 (2003).
216
A mental condition such as schizophrenia generally requires pharmacological intervention. See
Schizophrenia: Treatments and Drugs, MAYO CLINIC (Jan. 24, 2014), http://www.mayoclinic.org/
diseases-conditions/schizophrenia/basics/treatment/con-20021077 (“Medications are the cornerstone of
schizophrenia treatment.”). This type of condition compromises what I will describe in the following
section as “voluntariness,” so although schizophrenia would be a psychological, not a physical,
disorder, if schizophrenia were proximately caused by another’s negligence (which it generally cannot
be), this mental condition would be treated as on par with physical conditions in the physical/emotional
hierarchy. See infra Part IV.2.b. (discussing, inter alia, how voluntariness factors in to corrective justice
theory in the context of tort law).
217
See Peggy Reynolds et al., Use of Coping Strategies and Breast Cancer Survival: Results from
the Black/White Cancer Survival Study, 152 AM. J. EPIDEMIOLOGY 940, 942, 944 (2000) (noting a
significant correlation between emotional support and the survival rate of a segment of breast cancer
patients).
218
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 4 cmt. b
(2010).
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neither physical nor emotional harm because these harms directly impact
the ears and nose, respectively, but likely do not cause structural or cellular
change. Of course, physical injuries can cause emotional injuries and vice
versa, and this Article will later address how the law should analyze cases
where both types of injury occur.219
It is not necessary to accept these definitions to conclude that the law
should maintain a distinction between types of harm. However, any
contention that courts should maintain the categories of physical and
emotional injury necessitates some basis for distinguishing between them
that technology will not render obsolete. In addition, a hierarchy of the
protection of physical versus emotional harm needs enduring animating
rationales. The next Section argues in favor of a duty to control and
regulate our own emotional health.
B. The Duty to Maintain One’s Emotional Health
Now that emotionally based claims are becoming more common,220
“the more important legal and policy questions of the permissible scope of
liability”221 must come to the fore. However, the other arguments usually
articulated for courts’ reluctance to create emotional duties, such as the
fear of crushing liability and the desire to maintain a pool of funds for
certain victims, cannot do all the work. Those two concerns, while valid,
are question-begging because, if emotional harm is as significant as
physical harm, then there should be no reason to “reserve funds for victims
of other harms”222 over those who suffer from emotional distress.
Although we should not create categories of liability “based on an
unexamined mental-physical boundary,”223 the reasons to maintain this
boundary are not merely pragmatic or relevant to the extent to which
liability would increase. Rather, such reasons touch upon theoretical
concerns about the types of liability that would increase and the effect on
both would-be plaintiffs and would-be defendants of creating expansive
emotional duties. Courts and legislatures need to decide what types of
injuries they wish to protect, and if some types of injuries should be
considered more protectable than others.
As scientific advancements illuminate the extent to which mental
distress is both physiological and significant, one would hope that mental
illness would be demystified and destigmatized. However, there are still
219
See generally infra Part V (discussing the interplay between physical and emotional injuries
and how the law should account for such interplay).
220
See Kontorovich, supra note 9, at 495 (“The [negligent infliction of emotional distress] tort
represents the current wave of expansion and uncertainty in emotional distress liability.”).
221
Grey, Neuroscience and Emotional Harm in Tort Law, supra note 7, at 229.
222
Id.
223
Id.
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compelling reasons to distinguish between physical and emotional harm.
Legal obligations to protect others from emotional harm should be limited
because each of us should be under a legal duty to reasonably regulate our
own emotional states. This Section explores the contours of such a duty,
and how it would comport with tort law theory and doctrine from other
legal disciplines.
1. Preliminary Contours of the Duty
This type of emotional duty would not require individuals to refrain
from having or even expressing certain emotions. Instead, individuals
would simply be responsible for coping with some of the emotional
distress they experience, however they wish, but could not put an
unreasonable burden on others. This duty operates only as a condition of
seeking legal redress from those who have injured others, but the discharge
of the duty may involve taking affirmative steps both before and after a tort
suit. In this way, the duty serves to undermine the view that we have broad
duties to protect others’ emotional well-being. Socially, individuals could
be considered to owe this duty to themselves; we have an obligation to
ourselves to maintain reasonable emotional control. Legally, however, the
duty to reasonably regulate our own minds is one we owe each other.
A duty of precisely this nature does not currently exist in tort law. The
closest analogue may be the duty to mitigate damages in contract or tort
law.224 This is because the failure to discharge this duty properly cannot
form the basis of an independent action by others; a plaintiff who is
unreasonably emotional cannot recover simply for experiencing greater
emotional harm than others. Individuals must exercise mental fortitude
only to the extent they wish to sue others. As will be explained below, an
actual duty to mitigate, however, would be unwieldy and require proof of
steps taken to mitigate emotional damages that could compromise
plaintiffs’ autonomy and privacy interests in their medical and mental
health decisions.225 Additionally, “[m]itigation deals only with the
plaintiff’s conduct after his cause of action accrues and the defendant
pleads it as an affirmative defense for which he carries the burden of
proof.”226 An emotional duty is not about a plaintiff’s actions in mitigation
but concerns the defendant’s responsibilities; defendants would not be
224
In tort or contract law, the duty to mitigate reduces a plaintiff’s damages if she fails to take
reasonable steps to limit the extent of her injuries and therefore limit the amount of defendant’s
liability. See, e.g., Kuruwa v. Meyers, 512 F. App’x 45, 47 (2d Cir. 2013) (“[A] party who claims to
have suffered damage by the tort of another is bound to use reasonable and proper efforts to make the
damage as small as practicable.” (internal quotation marks and citation omitted)); Steger v. Orth, 258 F.
619, 624 (2d Cir. 1919) (“The duty of a plaintiff who has been injured by a defendant, whether through
tort or violation of contract, to mitigate or minimize damges, is not doubted. But what are reasonable
and proper efforts . . . present . . . a question of fact.”).
225
See Kontorovich, supra note 9, at 508 (identifying problems raised by psychiatric mitigation).
226
Id. at 497.
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responsible for unreasonable emotional responses, no matter how much the
plaintiff spent on therapy prior to or after the commission of the tort. The
inquiry into this emotional duty would examine whether the severity of the
plaintiff’s emotional response is reasonable, and the plaintiff could choose
to establish this without cataloguing the steps he took to ensure reasonable
emotional stability, although conduct both before and after the tort could
be considered. Proving discharge of this duty would be the plaintiff’s
burden of proof, although this question could likely be decided as a matter
of law.
Further, emotional duties to others may often serve as a complete bar
to recovery for emotional harm, and thus can also be analogized to
contributory negligence, or, in cases where a reasonable person would still
suffer serious emotional harm, comparative negligence.227 Although we
owe no general duty of care with respect to our own emotional responses,
emotional instability that goes beyond a reasonable level does have the
potential to pose a risk of unreasonable harm to others. Imposition of this
type of emotional duty to reasonably regulate our own minds, even
narrowly triggered only by a plaintiff’s lawsuit, thus echoes some aspects
of the general duty of care we all owe to avoid causing physical harm.
Questions will arise as to whether the duty is descriptive, in the sense
that it reflects an average person’s emotional capacity, or normative, in the
sense that it embodies moral judgments about how people ought to act.
Some scholars believe that the general duty of reasonable care has a
normative, almost aspirational, dimension.228 To counteract the impulse to
impose a general duty of reasonable care to avoid causing emotional harm,
the duty to reasonably regulate one’s emotional well-being should
probably correspond to a normative, aspirational approach.
Recognition of a duty to reasonably regulate one’s own emotional
well-being is consistent with, and indeed responsive to, the teachings of
neuroscientists, social scientists, and feminists mentioned above.229 It both
recognizes the importance of emotional harm and empowers those who
have suffered such harm to take ownership over their emotional states.230 A
duty to tend to our own emotional health in no way negates or devalues the
experience of mental distress; instead, it is a ground for concluding that
tort law should not protect us from emotional harm caused by others in
situations in which we should reasonably protect ourselves or mitigate our
227
See infra Part V for suggestions on doctrinal modifications.
See, e.g., Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. REV. 323, 326
(2012) (“We put forward and defend the argument that normative definitions are categorically
preferable to positive definitions . . . .”).
229
See supra Part III (discussing, inter alia, the theories and scholarship of those who have
analyzed the physical/emotional distinction).
230
See supra Part III (discussing, inter alia, how traditional tort law theories do not take emotional
injuries into account).
228
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own harm. These features of the duty to regulate our own mental wellbeing support a modern conception of the physical/emotional distinction
that comports with various tort theories, with instrumental and
deontological values embedded within these theories, and with other legal
doctrines.
2. Instrumental and Deontological Justifications from Tort Theory
The legal doctrines within tort law form a coherent system of values
and can be understood internally, using the logic of the normative concepts
and principles of tort law.231 Various tort law theories, such as efficient
deterrence, corrective justice, and civil recourse theory, explain these
doctrines or contribute to a deeper, more cogent understanding of what the
role and function of the tort system should be. A duty to take care with
respect to one’s own emotional state fits nicely into both normative and
interpretive accounts of tort law and their embedded instrumental and
deontological values.
a. Law and Economics: Maximizing Social Welfare and Avoiding
Moral Hazard
The law and economics movement broadly maintains that tort law
either is, or should be, a scheme that uses the threat of liability to induce
actors to take cost-efficient precautions against harming others.232 Law and
economics harnesses the deterrence component of tort law to maximize
social welfare.233 Famously, Richard Posner has pointed to the Hand
Formula as evidence that tort law aims to achieve efficient deterrence.234
According to Posner’s interpretation, negligence law, via the Hand
Formula, holds an actor liable if the cost to an actor of taking a precaution
against causing harm to others is less than the magnitude of the harm
231
See Zipursky, supra note 120, at 1937 (“[T]here is value to exploring the connections among
the normative concepts and principles of tort law and ascertaining how they fit together within the law.
First, it is likely to enhance our ability to render the law more coherent and predictable . . . . Second, it
is likely to reveal . . . what the animating principles of the law are. Third, it is likely to reveal the
normative questions about the validity of the law that we ought to be asking ourselves. And finally, it is
likely to clarify a number of epistemic questions about the law.”).
232
See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 6.14 (6th ed. 2003) (“If
compensation is the only purpose of the negligence system, it is indeed a poor system, being both
costly and incomplete. Its economic function, however, is not compensation but the deterrence of
inefficient accidents.”).
233
See Michael L. Rustad, Torts as Public Wrongs, 38 PEPP. L. REV. 433, 456 (2011) (“[T]he
study of law and economics is interested in macrotort concerns such as reducing the cost of accidents,
reallocating loss to wrongdoers, general deterrence, and rules that reflect efficiency.”).
234
See, e.g., Mesman v. Crane Pro Servs., 512 F.3d 352, 354 (7th Cir. 2008) (applying the Hand
formula in the product liability context). Judge Learned Hand explained the formula in United States v.
Carroll Towing Company, 159 F.2d 169, 173 (2d Cir. 1947). “[I]n algebraic terms: if the probability be
called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by
P: i.e., whether B [is less than] PL.” Id.
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expected to result from the actor’s failure to take the precaution, multiplied
by the risk of that harm occurring.235 For example, if it costs a store owner
nine dollars each day to salt his sidewalk during winter months, and there
is a one-in-ten chance each day that, without the salt, someone will slip on
the store owner’s walk and incur one hundred dollars worth of injuries, the
storeowner should be held liable if she does not salt her sidewalk and
injury results.236
In contrast to Posner’s version of law and economics, Guido
Calabresi’s brand of law and economics seeks to place the burden of
liability for harm on the entity that is the “cheapest cost avoider,”237
usually a market actor who can better evaluate and internalize risks.238
Judge Calabresi is less interested than Judge Posner in making the claim
that tort law, as it now stands, is well designed to identify least cost
avoiders. Instead, he acknowledges that it sometimes achieves that goal,
but should in any event be reformed to achieve it.239
Although it is simplistic to place these two intellectual rivals as
“speaking for” the law and economics movement as it applies to tort
law,240 their contributions explain and justify the deep divisions between
physical and emotional injuries. If the physical/emotional distinction is
abolished, a general duty to avoid causing emotional harm would exist that
is identical to the one that protects against physical harm. Yet,
internalization of others’ emotional costs would diminish social welfare
because physical injury and emotional injury are not similarly situated.
Forcing defendants to internalize the costs of causing emotional trauma is
not only untenable because of the pragmatic concern that emotional
liability is potentially limitless, given the number of people who could be
distressed by a given action, but beyond that, it is difficult for defendants
to account for the emotional benefits of their actions. There is no
235
See Mesman, 512 F.3d at 354 (discussing the Hand Formula and the necessity of weighing a
risk of injury against the cost of averting it); see also Russell B. Korobkin & Thomas S. Ulen, Law and
Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CALIF. L.
REV. 1051, 1096 (2000) (“Traditional law and economics suggests that precaution is efficient when its
benefits outweigh its costs and that tort law should impose liability for negligence when an actor fails
to take efficient precaution but not when he fails to take inefficient precaution.”).
236
Note that the $9 cost of salting is less than the $10 expected value of the harm.
237
GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 138,
262–63 (1970).
238
See id. at 163–64 (“[O]ne of the two parties may, in practice, be far more able than the other to
evaluate the accident risk . . . . And if this is the case, his activity is better suited . . . to bear the initial
loss. . . . [T]he choice of loss bearers depends on which of the two parties to the bargain can inject the
cost into the price of the goods or service most cheaply.”).
239
See id. at 312 (“[A] mixed system [between fault and other liability systems] can be developed
which does all the things we want in the way of accident cost reduction better than the fault system and
does them consistently with our sense of justice.”).
240
See, e.g., id. at 1 (describing Posner’s brand of law and economics to contrast it with Guido
Calabresi’s and Richard Epstein’s).
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accompanying dollar value of these benefits in the same way that there are
economic gains that can be accounted for when a store owner decides
whether it is worth his time to salt his walkway. There are emotional
benefits to third parties that cannot be accounted for or internalized by
putative defendants whenever an emotional loss is suffered, which occurs
far more often than physical benefits to others when an individual suffers
physical harm. Further, because many otherwise justifiable actions cause a
wide variety of negative emotional responses, deterring others from
causing emotional harm will cause losses in social utility in a way that
does not arise with respect to the general duty of care to prevent physical
harm.
Consider the decision to fire an employee. Even if this decision does
not violate any employment laws, is the best decision for the company’s
financial growth, will ultimately benefit the person hired in the employee’s
place more than it will harm the employee, and the fired employee will
actually be happier or better off in the long run, the termination of
employment might well cause a strong negative emotional reaction,
sometimes even resulting in short- or long-term depression.241 Allowing
this emotional distress to be generally actionable would place a thumb on
the scale against firing the employee, a socially inefficient decision in the
long run absent consideration of emotional consequences (and perhaps
even when considering emotional consequences). The fear of an
unmeritorious lawsuit alone might render an employer less likely to fire an
employee, even in the absence of negligence. Given that the negligence
standard will likely be ill-defined in cases implicating a general duty to
avoid causing emotional harm,242 there would be a justifiable concern that
a firing decision, or implementation of that decision, was made without
due care for a plaintiff’s emotional health. Firing decisions should be based
on the suitability of an employee to her position, not on the concern that
the decision will cause emotional distress to the plaintiff greater than the
gains in productivity to the company.243 Employers should not be forced to
subsidize the emotional stability—generically—of their employees.
Regrettable disincentives based on fear of lawsuits also exist in other
241
See Nunes–Baptista v. WFM Haw., LLC, Civil No. 11–00104 LEK–BMK, 2012 WL 1536075,
at *9 (D. Haw. Apr. 30, 2012) (granting summary judgment on an intentional infliction of emotional
distress claim where the plaintiff alleged that “[h]er termination caused depression, as she was
extremely emotionally upset that she was terminated for an unjust reason”).
242
The duty owed to others to avoid causing emotional harm would have to be borrowed from
cultural norms. One way to clarify this duty would be to tie it to violations of other, independent
interests, such as the duty to take reasonable care to avoid causing physical injury. See infra Part V
(proposing this solution).
243
Great social peril may accompany this over-consideration of others’ emotional well-being.
Consider a jilted lover who believes that if his beloved would just rekindle their romance, he would feel
so much happier. Individuals should not be held responsible in this way for others’ emotional welfare.
2015]
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areas of negligence, and in employment law generally, but this concern is
compounded in the emotional distress arena as the emotional distress to a
plaintiff is often offset by emotional gains to another party. Prevention and
harm are not the only variables when dealing with emotional harm; there is
the emotional gain, difficult to predict and measure, to third parties who
benefitted from whatever decision caused the emotional distress. The Hand
Formula breaks down because, while economic benefits to the company
can be accounted for,244 and while physical gains can offset physical
losses,245 emotional benefits that would offset predicted emotional
damages calculations would be nearly impossible to measure and
incorporate. If opening the door to emotional losses on one side of the
Hand Formula necessarily opened the door to emotional gains on the other
side, then courts would have to contend with negligent behavior that causes
physical harm where the defendant wants to include foregone emotional
benefits in the burden of avoiding the harm. Accounting for the emotional
highs and lows to every party involved in every decision would greatly
skew society’s vision of which actions are appropriate.
This is because almost every decision that increases overall social
welfare is accompanied by emotional distress for some party, and yet in
many cases such a decision also improves the emotional situations of other
parties. From giving a student frank but critical feedback on a paper, to
failing the student, to giving a romantic partner frank but critical appraisal
of his appearance, to terminating the relationship, the emotional gains and
losses are myriad. An event that causes a person emotional injury in the
short-term may actually make the person better off, even looking only at
the emotional axis, in the long run.
Benefits to an injured party and third parties that exceed losses are less
likely to occur when someone inflicts physical injury upon an individual.
With intentional physical injury, usually the only people who benefit, and
likely not in the long run, are the perpetrators or sadistic bystanders. In the
case of a negligently inflicted physical injury, there will be some gain to
the perpetrator from the benefits of the negligent action, like the ability to
drive faster or avoid cleaning ice in front of one’s store. These benefits can
be accounted for using the Hand Formula as part of the cost of preventing
the injury. Plus, when negligent action results in physical injury, the
defendant likely could have performed the action she wanted, and received
many of the benefits of performing that action, so long as she took
reasonable precautions to reduce the chances of physical injury. In many of
those cases, the defendant’s autonomy would be preserved and the injury
244
A company will stay in business if, after applying the Hand Formula and determining it must
prevent certain types of harm, its profits exceed those prevention costs.
245
A company can account for wear and tear on its employees when calculating the costs of
preventing particular accidents.
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would not have occurred. But no matter how gently an employer fires an
employee—and query whether society should incentivize treating people
as gently as possible—a great deal of emotional distress will arise from a
termination decision.
Thus, when an action causes physical injury, there are reasons to think
that it is more likely to be socially inappropriate or harmful than an action
that causes emotional harm. An action that causes physical injury is less
likely to have positive consequences, and it is more likely that the
perpetrator could have reaped many of the action’s benefits without
causing harm by taking more precautionary measures.246 It is also more
likely that the defendant can properly account for all the harms and
benefits that result from her behavior when making rational calculations
about whether to engage in the behavior.
Of course, emotional harm is still a true harm, and thus should be
reflected in the Hand Formula if courts wish to maximize social welfare.
But, to the extent that individuals wish to avoid emotional harm,247 the law
should create incentives for plaintiffs to minimize their own emotional
distress. Learning to cope emotionally is an important skill for all
individuals, and is linked to improved physical health as well as emotional
well-being.248 Creating a society where individuals believe that they have
control over their emotional destinies will inspire and encourage others to
face emotional adversity and take responsibility for overcoming it.
Individuals should not repress their emotions. However, focusing on the
indignation of an emotional upset tends to amplify the sense of distress.249
Knowing that someone has legally wronged you by breaching a legal
obligation to your emotional state would increase that sense of indignation.
If this harm is minimized, defendants can engage in more socially desirable
behaviors, and such autonomy promotes instrumental goals and has
inherent value.
246
Sporting events or dangerous tasks that often result in physical injury but are socially desirable
are not analogous to employment terminations, relationship strife, or offensive speech because often in
the latter-type cases, the emotionally distressed party did not wish for the precipitating event to occur.
247
If individuals do not seek to minimize emotional harms, choose to neglect their emotional
health in favor of other goals, or prefer to experience extreme emotional highs and lows, the law does
not, as Levit argues, mandate conformity. These individuals cannot, then, seek compensation from
others. See supra Part II.B. (discussing courts’ typical treatment of purely emotional injuries in the
eggshell psyche and parasitic damages contexts and how they do not award compensation for
emotional injuries unless such injuries manifest themselves in connection with some other independent
harm).
248
See supra Part III.A (discussing the ability of medical technology and neuroscience to improve
our understanding of emotional harms and how they interact with physical harms).
249
For an interesting account of the challenges of viewing individuals as victims, see Martha
Minow, Surviving Victim Talk, 40 UCLA L. REV. 1411, 1431 (1993) (“Describing yourself as a victim
has a self-fulfilling and self-perpetuating feature; and yet, failing to acknowledge or assert one’s
victimization leaves the harm unaddressed and the perpetrators unchallenged.”).
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Treating the defendant as insurer of the plaintiff’s emotional wellbeing also poses difficulties that do not exist in the realm of physical
injuries. Allowing broad compensation for emotional injuries creates
“moral hazard”250 problems. Knowing that a defendant must basically
insure the full extent of a plaintiff’s injuries “result[s] in inefficiently low
levels of post-injury care by plaintiffs and systematic overcompensation.”251 Creating a duty to mitigate emotional harm, similar to the duty
to mitigate physical injury, could alleviate this moral hazard problem, but
any possible standards for mitigation of emotional distress would be nearly
impossible to administer.252 Forcing injured plaintiffs to seek psychiatric
care or pharmacological intervention prior to suing, and then making these
treatments part of a court record, compromises plaintiffs’ autonomy and
privacy.253
This type of duty to mitigate others’ emotional distress also creates
second-order moral hazard issues that do not arise in cases of physical
injury. A plaintiff not needing treatments for emotional distress caused by
a defendant’s conduct may undertake them anyway, knowing that the
defendant must pay plaintiff’s mitigation costs.254 Psychotherapy and
unnecessary pharmacological solutions are much more appealing than
treatments for nonexistent physical injuries, and with the defendant as the
insurer, there is little reason for the plaintiff to consider these costs
efficiently. We may all benefit from extensive mental health treatment,
whether or not it is related to a particular emotional injury. However, the
vast array of mental health problems in the United States should not be
addressed haphazardly through the tort system255 by holding individual
defendants accountable for the emotional health of others.
Unlike physical maladies, mental distress is often difficult to trace to a
root cause. Any particular defendant should not bear the entire extent of
someone’s emotional experience, which may be informed by other past
events and traumas. The care of our nation’s mental health generally
should be dealt with systematically through public health insurance, other
public health initiatives, or using market-based solutions like private health
insurance systems through employers. Allowing widespread compensation
250
Moral hazard is a phenomenon where those with insurance tend to incur greater losses than the
uninsured. Tom Baker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237, 238–39 (1996).
251
Kontorovich, supra note 9, at 491.
252
Id. at 507–08.
253
See id. at 507–12 (discussing the ways that a duty to mitigate psychiatric damages would
uniquely cause problems regarding the autonomy and the privacy of the individual upon whom the duty
is imposed).
254
See id. at 510–11 (discussing the problem of the “merry mitigator” in this context).
255
Fifty percent of Americans will experience mental illness at some point during their lifetime,
and fewer than half of those people will ever get treatment. Rebecca Spain Broches, Creating
Continuity: Improving the Quality of Mental Health Care Provided to Justice-Involved New Yorkers,
21 GEO. J. ON POVERTY L. & POL’Y 91, 91 (2013) (citations omitted).
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for emotional injuries, even with a duty to mitigate, would incentivize
plaintiffs to seek more mental health care than the defendant’s conduct
made necessary. Because of the difficulties inherent in creating a duty to
mitigate emotional harm, Eugene Kontorovich has concluded that “courts
must limit moral hazard in emotional distress cases by limiting the scope of
liability or recovery.”256
Of course, there are many instances where a defendant’s intentional or
negligent conduct causes psychological issues that require a great deal of
time, attention, money, and often pharmacological intervention to remedy.
There will be instances where plaintiffs cannot be held responsible for their
emotional distress and should be compensated for these costs.257 However,
to the extent individuals have mental infirmities that render them more
susceptible to emotional upset, the law should encourage these individuals
to seek help ahead of time by making it clear that they ordinarily cannot be
compensated later. Overall, the law does not serve social welfare by
holding defendants responsible for behavior that might cause generally
unpleasant but tolerable levels of emotional distress, or serious yet
extraordinary emotional responses.258
Preventing and treating emotional upheavals, if individuals wish to
avoid them, is a burden usually best placed on the person experiencing the
emotion. Within reason, we want people to learn to take control of their
emotional lives and to take emotional issues seriously, both before an
emotionally disturbing incident and afterwards. Because we have more
control over our emotional responses than our physical responses,259 a
refusal to create a general duty to take reasonable care to avoid causing
emotional harm to others would place the burden on the least cost avoider,
the individual, to both seek therapy or medical assistance for pre-existing
mental health conditions and get help, or learn coping strategies, for
emotional injuries after the fact. An individual may not have the ability to
control his immediate emotional response to an event, but society expects
him to control his behavior,260 and he can control his long-term processing
of the emotion. To the extent that an emotional injury is so serious that it
overtakes or incapacitates a plaintiff who is not suffering from prior mental
256
Kontorovich, supra note 9, at 491–92.
See infra Part V (noting that in the context of criminal law, plaintiffs sometimes should be
compensated for emotional harm because the duty to maintain one’s emotional health is exercised
properly).
258
If an event or action is so distressing that it would cause serious mental anguish to a reasonable
person, then perhaps the balance of instrumental values should shift to allowing compensation for that
individual’s emotional injuries. Limitations on the duty to control one’s own mind will be discussed
infra in Part V.
259
This argument is fleshed out supra in Part IV.B.
260
Although suffering from extreme emotional outrage when committing crimes may receive
lesser penalties for those crimes, this type of emotional outrage does not completely excuse the crime
committed.
257
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261
illness, tort law may want to offer compensation, but this would not
entail creating a general duty of care to avoid emotional injuries or placing
no duty on plaintiffs to control their own emotional responses.
b. Corrective Justice: Notions of Fault Require Mental Control
Corrective justice is a deontological theory of tort law that treats the
tort-law duty to pay compensatory damages as a legal recognition of a
moral duty to repair incurred by an injurer who wrongfully causes harm to
a victim.262 The physical/emotional distinction, and a modern justification
based on duties to maintain our own emotional health, should consider
defendants less responsible, and therefore less at fault, for others’
emotional distress.
Fault is the animating principle of corrective justice.263 Defendants
must provide compensation for harm that is wrongful, thus repairing the
disequilibrium created by a wrongfully caused loss. There are various
forms of corrective justice theory; some focus more on repair and wrongful
losses, and some focus more on causation.264 As with law and economics,
many versions of corrective justice break down if emotional injury is given
parity with physical injury. A duty to maintain one’s own emotional health
would comport with theories based on corrective justice.
Corrective justice generally relies on human agency and does not fault
defendants for losses properly attributed to plaintiffs.265 According to Jules
Coleman, a major proponent of corrective justice, losses can be wrongful if
they invade upon a legally protected right, and “[t]o say that I have a right
to something is to say that I, not you or anybody else, has control over its
use.”266 Under Ernest J. Weinrib’s particular view of corrective justice, “a
wrongful act is one which shows disrespect for the equal free agency of
another and harms her in manifesting such disrespect or by injuring her
261
See infra Part V for proposals along these lines.
See Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 700
(2003) (“One who causes a wrongful injury to another is obligated to compensate the other for the
injury caused. The existence of such an obligation, quite apart from the law, flows from the fact that the
wrongful injurer is responsible for the injury wrongfully inflicted on the other.”).
263
See Jules L. Coleman, Tort Law and the Demands of Corrective Justice, 67 IND. L.J. 349, 351
(1992) (“In this essay, I want to present the beginnings of an account of tort law that takes the principle
of fault liability seriously. Fault is central both to the institution of tort law and, in my view, to its
ultimate moral defensibility. I want to provide here a moral foundation for the fault principle in the
principle of corrective, not retributive, justice.”).
264
See id. at 699 n.18 (cataloguing the theories of various scholars of competing schools of
corrective justice).
265
See G. Edward White, The Unexpected Persistence of Negligence, 1980–2000, 54 VAND. L.
REV. 1337, 1356 (2001) (“Corrective justice arguments would support this trend, suggesting that a
plaintiff’s recovery should be reduced to the extent, and only to the extent, that his fault contributed to
his injury.”).
266
Coleman, supra note 263, at 372.
262
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267
capacity to exercise free will.”
These statements work well when considering physical harms caused
by others. I control the use of my body, and any actions to which I did not
consent and that injure my body violate that right and impose upon my
ability to make decisions about my body.268 However, in the case of
emotional injury, someone’s wrongful action may have caused me to suffer
emotional upset, but, in most cases, my mind was not invaded by that
person’s actions and my free will was not disrupted. The harms are
therefore attributable to me.
Under corrective justice theory, this distinction between physical
invasions and mental invasions must hold. If my mind is invaded every
time someone’s actions cause emotional upset in the same way that my
body is invaded every time someone’s actions cause me physical injury,
then everyone’s mind is invaded for good or ill each time we interact with
others and experience new thoughts and emotions. The entire scheme of
free will, fault, and wrongdoing that corrective justice requires, even the
wrongdoing entailed in the defendant’s action that caused the emotional
upset in the first place, evaporates.
Corrective justice theory provides that “injurers are liable for all and
only the causal results of their agency.”269 This presupposes that each
individual generally exercises control over her own mind.270 You cannot
have fault principles without at least a weak notion of agency or free
will,271 and you cannot advance as strong a theory of free will without the
notion that, at least to some extent, individuals control their own emotions
and thoughts to a greater extent than they can control their bodies’ reaction
to physical harm.272
267
Ken Kress, Introduction: Formalism, Corrective Justice and Tort Law, 77 IOWA L. REV. i, iv
(1992).
268
This also accords with Richard Epstein’s strict liability theory of corrective justice. See
Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 152 (1973) (“The . . . theory . . .
of strict liability[] holds the defendant prima facie liable for the harm caused whether or not either of
the two further conditions relating to negligence and intent is satisfied.”).
269
Coleman, supra note 263, at 350.
270
However, “if the basic conditions for attributing moral agency to a defendant are lacking—as,
for example, when the defendant is pushed into the plaintiff by another party—then corrective justice
must excuse her.” Christopher H. Schroeder, Corrective Justice, Liability for Risks, and Tort Law, 38
UCLA L. REV. 143, 148 (1990).
271
Coleman believes that there can be fault without blame, such as in cases when a defendant acts
negligently and harms someone without purpose. To hold a defendant at fault still requires the view
that she is responsible for not taking precautions that could have prevented the harm. See
Coleman, supra note 263, at 370 (emphasizing that the corrective justice principle is concerned with
the consequences of the acts, not of the culpability of the actor, and that a person should be held
negligent if he or she does not comply with the objective standard of conduct).
272
In instances where a defendant’s actions have resulted in such emotional turmoil as to diminish
our understanding of voluntariness, the defendant then could be deemed at fault. See supra Part V
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Common sense experience, reflected in a good deal of legal
doctrine,273 informs us that emotional upset is, to a much greater extent
than physical injury, within our control.274 Although choices about diet,
exercise, sleep, and the amount of stress in our lives impact our
susceptibility to physical disease, we cannot “will” the disease away once
it manifests. Further, these lifestyle choices serve only to mitigate risk
factors for illness; they are often not choices everyone can afford to make;
and we often have very little ability, without great effort and expense, to
overcome physical injuries once they arise. There is little that can be done,
through force of will, to heal a broken bone, a gunshot wound, or even acid
reflux disease. If we can more easily control our minds, we should be less
inclined to think it has been invaded, even when others cause us emotional
harm.
The idea that we have relatively more control over our emotional state
than our physical state is connected to the notion that our mind is, in fact,
who we are. The functioning of our mind is inextricably connected with
our identity in ways that our physical presence is not. Losing a limb or
cutting one’s hair may change one’s behavior and even, to some degree,
one’s personality, and it may impact one’s identity to the extent that
someone’s identity is bound up in her physical capacities or physical
health. However, changes in one’s physical state do not impact one’s
identity in the same way as our mental, emotional, and psychological
growth. Further, we can use our rational faculties to promote that growth,
and to accept and surpass painful emotional responses.
An analogy to the phenomenon of hedonic adaptation can shed light on
this view. As noted earlier, individuals adjust to serious, disabling injuries
and often report similar levels of happiness pre- and post-injury.275 Sean
Hannon Williams, for example, writes that individuals who suffer extreme
physical trauma adjust to their diminished capacities and maintain their
levels of happiness by altering their goals, preferences, and ideals—the
very essence of their identities.276 A paraplegic former athlete, for example,
might develop an interest in music after suffering a disabling injury.277 To
Williams, this forced self-alteration, which causes an identity
(explaining the different theories and approaches that courts can take when dealing with emotional
distress tort cases, both when the damage is slight and when the damage is great).
273
See supra Part IV.B. (discussing a social science experiment that concluded that the
relationship between happiness and mental health is stronger than the relationship between happiness
and physical health).
274
See supra Part III.A. (explaining the history of the court’s reluctance to compensate for
emotional harm).
275
See Sean Hannon Williams, Self-Altering Injury: The Hidden Harms of Hedonic Adaptation,
96 CORNELL L. REV. 535, 540 (2011).
276
Id. at 566–67.
277
See id. (defining “adaptation” as when a person changes what he or she enjoys in order to
accommodate the new disability).
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“transformation[,] is almost certainly a harm from the perspective of the
predisability self.”278 Even if we accept that premise,279 the way we adjust
to emotional upset is to adjust who we are. Our emotional reactions, and
the new identities we form to deal with these reactions, are part of us.
People have profound abilities to find ways to mitigate their emotional
and psychological despair, and, as mentioned earlier, the law should
encourage this.280 Individuals should also be held responsible for doing so.
The way that they approach doing so is bound up in their identities. An
individual’s desire and ability to find that new approach, and the resulting
approach, are a fundamental part of her character. A duty to control one’s
own emotional state would acknowledge that we can control our own
emotional states, and, in fact, we are our emotional states. Under this
approach, the law should hold an individual responsible for attempts to
cope with emotional suffering, both because he has the capacity to respond
in productive ways to emotional distress and because the ways in which he
responds form part of his “self.”
Although it may be true that no action of the mind is truly “voluntary,”
and that we have very little control over our emotional states, our
conception of ourselves as our minds signifies that “we” are our emotional
states and how we regulate them. We are in control of that growth, because
that growth both is and becomes who we are. In even stronger terms,
Martha Nussbaum contends that our emotional responses are defined by
our evaluative judgments and based on our thoughts and ideas about the
state of objects that we deem necessary to our flourishing.281 Nussbaum’s
grief at the death of her mother, for example, is an experience of the
thought that her beloved mother is lost forever.282 This grief is a reflection
of the cognitive conclusion that she values the idea of mothers generally
and values her mother specifically, both for Nussbaum’s own flourishing
and for her mother’s sake.283 The emotions we experience are not
fundamentally different from our thoughts and, in fact, have been
overlooked as a source of wisdom in moral and ethical philosophy.284
Corrective justice faults defendants for wrongfully invading the rights
278
Id. at 567.
Many of these disabled individuals, and many people in general, report being glad for the
personal struggles in their lives, which have made them who they are. See id. (quoting a paralysis
patient saying that he or she did not have to mourn his or her losses in order to maintain a positive selfimage).
280
See supra Part IV.B. (explaining the various reasons why mitigating emotional damages is a
beneficial mechanism).
281
See MARTHA NUSSBAUM, UPHEAVALS OF THOUGHT: THE INTELLIGENCE OF EMOTIONS 69–70
(2001) (using examples to explain the difference between evaluative judgments and judgments that
arise in the context of particular situations).
282
Id. at 39.
283
Id. at 52–53.
284
Id. at 25–31.
279
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of plaintiffs, but breaks down unless we view our emotional responses as
part of our personal agency. If a plaintiff was not wrongfully injured in the
same way, then a defendant should not owe the same sort of duty to repair
as with physical injury.285
c. Civil Recourse Theory: Elevation of Human Agency
Civil recourse theory maintains that tort law empowers victims of
wrongfully inflicted injuries to respond to those who have injured them.286
Plaintiffs, however, should not be entitled to seek redress for injuries if
they have failed to heed their duty to exercise reasonable emotional
control.
The originators of civil recourse theory, John Goldberg and Benjamin
Zipursky, demonstrate in Unrealized Torts how their theory can be
invoked to salvage the disparate treatment of physical and emotional
injury.287 Civil recourse theory gives plaintiffs remedies in certain
situations, but the law “allocat[es] . . . responsibility for certain aspects of
plaintiffs’ well-being to the plaintiffs themselves.”288 By treating physical
and emotional harm differently, tort law sets the “normative ideal of
holding plaintiffs responsible for their personal responses.”289 Just as a
parent might downplay a child’s hurt feelings to minimize emotional
preoccupation with an incident at school,290 courts can discourage citizens
from making legal mountains out of personal molehills by refusing to
allow claims for pure emotional injury.291 This “provides a legal version of
norm-setting and norm-articulation, where the norm is one of fostering the
thick-skinned response of getting on with life . . . .”292
This account of tort law’s treatment of emotional harm necessitates a
belief in what Goldberg and Zipursky call the “agency concern,”293 the
285
If a plaintiff is able to have more control over his emotions, then a defendant should not be
held accountable for the consequences. See Coleman, supra note 263, at 370 (explaining that since
corrective justice relies on the theory of culpability and retribution, we should only punish those who
create negative consequences).
286
See Andrew S. Gold, The Taxonomy of Civil Recourse, 39 FLA. ST. U. L. REV. 65, 66–67
(2011) (“On the civil recourse view, where one individual violates the rights of another, the wronged
party is entitled to seek recourse in a court of law by initiating a private right of action. In other words,
private law is designed so that a wronged party may act against the wrongdoer through a state-provided
venue.”).
287
See Goldberg & Zipursky, Unrealized Torts, supra note 8, at 1679–83 (illustrating how a
person should control his or her emotions, but can recover damages in certain circumstances).
288
Id. at 1683.
289
Id. at 1681.
290
Id. at 1680.
291
Id. at 1680–81.
292
Id. at 1681.
293
Id. at 1677 (internal quotation marks omitted). As Goldberg and Zipursky explain, the
“‘equivalence-of-harms’ thesis” articulates the idea that, to someone who suffers harm, the type of
harm is irrelevant, and only the magnitude or severity of the harm matters. Id. at 1668. Tort law’s
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view that “[e]motional harm is often, though not always, in the control of,
and therefore the responsibility of, the victim.”294 In a narrative that
explains tort law’s reluctance to compensate plaintiffs for emotional
injuries, the agency concern encompasses the idea that individuals bear
responsibility for their emotional responses.295 Our legal system “refuses to
deem emotional injury as a fact impervious to the plaintiff’s own will.”296
According to the agency concern, “[e]motional distress is not simply an
uncontrolled or uncontrollable reflex, as is the bodily response to a blow or
a toxin. It is a response mediated by the mind of the plaintiff.”297 This view
echoes the instrumental and deontological reasons for treating emotional
responses as belonging to the plaintiff mentioned in the previous subparts.
Taking the concept of the agency concern further—and perhaps to
normative territory into which Goldberg and Zipursky would not venture—
I suggest that to allow plaintiffs to be compensated for their emotional
responses would either signal to individuals that these responses are not
within their control or would reward individuals for their lack of selfcontrol. Plaintiffs should not seek recourse from defendants, in the
ordinary course of things, for their emotional injuries, but should instead
look within themselves.298
The agency concern, and this Article’s more expansive articulation of
the idea that individuals have a duty to regulate their own emotional
distress, fits into a number of philosophical schemes regarding notions of
the self, autonomy, and consent. The perception of each individual as the
keeper of his own mind better enables individuals to be considered actors
with agency, empowered to make decisions voluntarily. The idea that we,
absent extreme circumstances, can be rattled into losing control of our
emotional states, and thus our ability to make rational decisions, would
nullify contracts, erode notions of fault, and allow the law an extremely
paternalistic reach.
3.
Echoes of the Physical/Emotional Hierarchy in Other Legal
Disciplines
To the extent that we value coherence in the law, maintaining the
treatment of emotional harm looks quite odd under the equivalence-of-harms thesis but is resolved by
presuming that courts account for the agency concern. Id. at 1668, 1677.
294
Id. at 1677.
295
Id. at 1683.
296
Id. at 1685.
297
Id. at 1681.
298
Of course, different people have different capacities for “toughing out” emotional injuries.
There is a tension in the law between protecting the vulnerable and facilitating positive manifestations
of strength. Resolution of this tension is not critical to this Article, which maintains that facilitating an
atmosphere that encourages personal responsibility for one’s emotions ultimately benefits most people,
although it may benefit some more than others.
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physical/emotional hierarchy based on a duty to regulate one’s own
emotional health can unify many of the foundational, and often
uncontroversial, insights embedded in tort law, First Amendment law, and
criminal law. These legal disciplines share common intuitions, including
greater solicitude towards physical harm and the view that physical harm
compromises voluntariness more than emotional harm.
a. The Emotional Costs of Free Speech
Tort law’s reluctance to create duties to take care against distressing
others is broadly consistent with America’s unique approach to free speech
law.299 The First Amendment, as articulated in modern times, stands
opposed to interventions by the government into the “marketplace of
ideas,” which both preserves individual autonomy and benefits the
collective.300 This approach, which distinguishes the United States from
other Western democracies,301 has been understood by the Supreme Court
to require the toleration of various forms of speech that predictably causes
emotional harm.302
In the twentieth century, as tort law expanded its protection of
emotional harms,303 First Amendment doctrine expanded in the opposite
direction, refusing to safeguard society from offensive, uncivilized, and
hateful speech.304 Courts consistently reject the calls by scholars and
aggrieved plaintiffs to remove “hate speech” from the ambit of protected
299
According to Kathleen Sullivan, two competing visions of free speech exist in some tension:
free speech as political equality and free speech as liberty. Kathleen M. Sullivan, Two Concepts of
Freedom of Speech, 124 HARV. L. REV. 143, 144–45 (2010). Recent decisions, like Citizens United,
represent a victory for the libertarian conception of free speech, which “treats with skepticism all
government efforts at speech suppression that might skew the private ordering of ideas.” Id. at 145; see
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365 (2010) (holding that a federal law—
which prohibited unions, corporations, and non-profit organizations from broadcasting campaign
commercials within a certain time period of elections—violated the First Amendment as an
unconstitutional restriction on free speech).
300
See, e.g., Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 537–
38 (1980) (“If the marketplace of ideas is to remain free and open, governments must not be allowed to
choose which issues are worth discussing or debating . . . .” (internal quotation marks omitted) (quoting
Police Department of Chi. v. Mosley, 408 U.S. 92, 96 (1972))); Roth v. United States, 354 U.S. 476,
484 (1957) (“[The First Amendment] was fashioned to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the people.”).
301
Arguably, America’s free speech protections are more expansive in vision than anywhere else
in the world. See Robert A. Sedler, An Essay on Freedom of Speech: The United States v. The Rest of
the World, 2006 MICH. ST. L. REV. 377, 379 (“[T]he constitutional protection afforded to freedom of
speech in the United States is seemingly unparalleled anywhere else in the world . . . .”).
302
See, e.g., Rebecca Tushnet, More Than a Feeling: Emotion and the First Amendment, 127
HARV. L. REV. 2392, 2395 (2014) (“[T]he deliberate infliction of emotional distress on specific targets
is . . . regularly protected by the First Amendment.” (emphasis omitted)).
303
See supra Part II.
304
See G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in
Twentieth-Century America, 95 MICH. L. REV. 299, 300–01 (1996) (discussing how First Amendment
issues have pervaded American constitutional jurisprudence in past decades).
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306
speech, as is the norm in most other Western democracies. The claim
that bigoted, vitriolic speech causes unique emotional injury and can
silence members of socially vulnerable groups has had little traction in the
face of modern free speech doctrine.307 The Supreme Court has explicitly
stated, at least when speech involves matters of public concern, that
individuals must bear the emotional costs of speech as part of living in a
free society.308 Courts have often minimized or devalued these emotional
costs, cautioning individuals that they need to develop a “thick skin” to
allow for robust debate and free expression.309
Indeed, the fact that a behavior has emotional costs is, in large part,
what renders the behavior speech under the First Amendment. Without the
distinction between physical and emotional harm, our rationales for
protecting speech are undermined. The somewhat blurry line between
speech, which is presumptively protected, and conduct, which is generally
regulable, is premised at least in part on the notion that pure speech is a
communicative act that directly causes only emotional harm, whereas
conduct involves direct, physical, tangible interactions and harm.310 Speech
305
For an influential, although ultimately unavailing, example of arguments in favor of
restrictions on hateful speech, see generally MARI MATSUDA ET AL., WORDS THAT WOUND: CRITICAL
RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT (1993).
306
See Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative Analysis,
24 CARDOZO L. REV. 1523, 1524, 1529–30, 1541 (2003) (arguing that freedom of speech in the United
States is “shaped above all by individualism and libertarianism,” whereas in other Western
democracies, freedom of speech is shaped by “honor and dignity”).
307
Cf. David Goldberger, Sources of Judicial Reluctance to Use Psychic Harm as a Basis for
Suppressing Racist, Sexist and Ethnically Offensive Speech, 56 BROOK. L. REV. 1165, 1166 (1991)
(“One of the most puzzling aspects of the judiciary’s stance protecting racially, ethnically and sexually
offensive public speech is that it has rarely questioned the validity of the claims of harm. On the
contrary, the judiciary has often conceded that offensive speech causes emotional harm while ruling
that such speech, nonetheless, is entitled to constitutional protection.”).
308
In the Supreme Court’s eight-to-one majority opinion in Snyder v. Phelps, 131 S. Ct. 1207
(2011), which set aside a multi-million dollar jury award for intentional infliction of emotional
distress, id. at 1214, 1221, Chief Justice Roberts asserted:
Speech is powerful. It can stir people to action, move them to tears of both joy and
sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot
react to that pain by punishing the speaker. As a Nation we have chosen a different
course—to protect even hurtful speech on public issues to ensure that we do not
stifle public debate.
Id. at 1220.
309
E.g., Besler v. Bd. of Ed. of W. Windsor-Plainsboro Reg’l Sch. Dist., 993 A.2d 805, 823 (N.J.
2010) (“[F]ree speech is not for the fainthearted. [Public] officials must be thick-skinned enough to
tolerate the uninhibited and robust debate on public issues that the First Amendment demands.”).
310
See Kathleen M. Sullivan, Resurrecting Free Speech, 63 FORDHAM L. REV. 971, 976 (1995)
(“The distinction between mind and body—or, as it is usually called in this context, speech and
conduct, or expression and action—holds that speech is privileged above conduct in the sense that
government may properly regulate the clash of bodies but not the stirring of hearts and minds.”). But
see John Greenman, On Communication, 106 MICH. L. REV. 1337, 1340 (2008) (“Some scholars argue
that communicative acts are those directed at the mind and not the body, but activities like
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leads to tangible, physical changes in society only indirectly when people
choose to act on that speech.311 The emotional effects of speech are not
considered equivalent to the direct, external changes incurred from
conduct.312
Scholars argue that the distinction between speech and conduct is
artificial and unworkable,313 but assessing this divide in emotional/physical
terms has significant explanatory power. Consider expressive conduct,
which is conduct relating to the physical world that serves to communicate
ideas.314 The government can regulate this expressive conduct so long as
the law furthers a significant government interest that is unrelated to the
expression of ideas.315 Thus, the government can proscribe destroying a
draft card if the physical act of destruction affects the administrability of
the draft system, but not because of the emotional and psychic effects of
the message.316
The view that the physical/emotional divide underlies the distinction
between protected speech and unprotected conduct is strengthened when
psychotropic-drug use and subliminal advertising are directed at the mind and still not protected from
regulation.” (footnote omitted)). Greenman’s dismissal of the connection between the mind/body
distinction and the speech/conduct distinction falls short, however. The regulation of psychotropic
drugs, which he believes affect only the mind, may also be based on the drugs’ physical effects on the
body. Further, these regulations control the physical act of selling or taking the drug. As for regulations
on subliminal advertising, all advertising, as commercial speech, is subject to less speech protection.
311
See Sullivan, supra note 310, at 976 (“Normally, if speech offends your sensibilities or causes
you anger, resentment, or alarm, the free speech consensus says your solution is not to call the sheriff
but to turn the other cheek.”).
312
See Wendy B. Reilly, Fighting the Fighting Words Standard: A Call for Its Destruction, 52
RUTGERS L. REV. 947, 958–59 (2000) (arguing in favor of eliminating the protection for certain types
of hurtful speech and claiming that “[t]he Supreme Court has constructed a false dichotomy between
physical and emotional pain as it relates to the regulation of speech and conduct through the fighting
words doctrine”).
313
See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 827 (2d ed. 1988) (“The
trouble with the distinction between speech and conduct is that it has less determinate content than is
sometimes supposed.”); Louis Henkin, Foreword: On Drawing Lines, 82 HARV. L. REV. 63, 79 (1968)
(“A constitutional distinction between speech and nonspeech has no content. A constitutional
distinction between speech and conduct is specious. Speech is conduct, and actions speak.”); Stephanie
M. Kaufman, The Speech/Conduct Distinction and First Amendment Protection of Begging in
Subways, 79 GEO. L.J. 1803, 1821 (1991) (claiming that a distinction between speech and conduct in
First Amendment jurisprudence is, inter alia, “inevitably false”); Laurie Magid, First Amendment
Protection of Ambiguous Conduct, 84 COLUM. L. REV. 467, 474 (1984) (asserting that the Supreme
Court’s distinction between speech and conduct in cases involving expressive activity is tenuous).
314
See United States v. O’Brien, 391 U.S. 367, 376 (1968) (describing expressive conduct, also
known as “symbolic speech,” as “communication of ideas by conduct” (internal quotation marks
omitted)).
315
See id. at 377 (“[G]overnment regulation is sufficiently justified if it . . . furthers an important
or substantial governmental interest . . . .”).
316
See id. at 377–78 (concluding that the U.S. government’s draft card registration system
furthers a significant government interest insofar as the system serves as a “substantial administrative
aid” for the exercise of Congress’s constitutional war powers and that legislation upholding this system
passes constitutional muster).
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examining the exceptions to speech protections. Many categories of speech
that are unprotected, like true threats, fighting words, or even the classic
example of yelling “fire” in a crowded theater, are bound up in the
protection of bodily integrity or against fear of imminent bodily injury.317
Even the ban on child pornography is justified by the fact that child
pornography is “‘intrinsically related’ to the sexual abuse of children.”318
Some types of speech that have been deemed unprotected, like
obscenity, libel, invasion of privacy, or hostile work environment
harassment, do not directly concern harms to bodily integrity. However,
courts justify their removal from protected status largely based on effects
or interests that are unrelated to emotional harm, and are sometimes related
to the body. Obscenity was originally deemed unprotected because it
caused a “form of immorality which has relation to sexual impurity” based
on its “tendency to excite lustful thoughts.”319 Libel concerns a reputational
interest and often also has an economic component.320 For sexual
harassment under Title IX to be unprotected, it must be so severe and
pervasive as to deny a plaintiff an educational opportunity, a separate
important interest.321
First Amendment law’s protections thus complement, and essentially
depend on, the hierarchy of physical and emotional harm in tort law. First
Amendment law goes even further than tort law: it prohibits the
government from intervening when the primary harms resulting from the
speech are emotional and are unrelated to bodily integrity or other,
significant interests. If the physical/emotional distinction collapsed, our
strong free speech protections would likely be seriously compromised, at
least in theory if not in practice.
317
See, e.g., Virginia v. Black, 538 U.S. 343, 359 (2003) (“‘True threats’ encompass those
statements where the speaker means to communicate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group of individuals.”); Cohen v. California, 403 U.S.
15, 20 (1971) (holding that fighting words, or “those personally abusive epithets which, when
addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke
violent reaction” are unprotected).
318
Ashcroft v. Free Speech Coal., 535 U.S. 234, 249 (2002) (quoting New York v. Ferber, 458
U.S. 747, 759 (1982)).
319
Roth v. United States, 354 U.S. 476, 486 (1957).
320
See supra Part III.A (discussing the traditional tort doctrines and their treatment of the
distinction between physical and emotional harm).
321
Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999) (“Moreover, we conclude that
such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it
effectively bars the victim’s access to an educational opportunity or benefit.”). To survive First
Amendment scrutiny, a hostile work environment sexual harassment claim must allege conduct that is
so severe and pervasive that it creates an abusive work environment. See Eugene Volokh, What Speech
Does “Hostile Work Environment” Harassment Law Restrict?, 85 GEO. L.J. 627, 628 (1997)
(providing the basic elements for speech to be punishable as workplace harassment).
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b. The Physical/Emotional Distinction in Criminal Law and the
Voluntariness Component of Fifth Amendment Doctrine
In criminal law, the element of “bodily injury” is an important way in
which courts distinguish between criminal and non-criminal conduct.322
Further, in the context of the Fifth Amendment’s right against selfincrimination, courts have given police officers wider latitude to
manipulate suspects emotionally than to threaten them physically. To the
extent that uniformity in the law is a virtue, a tort duty to regulate one’s
own emotional health reasonably finds support in criminal law as well.
The term “bodily injury is an element in defining crimes”—including
menacing, simple assault, unlawful arrest, resisting arrest, aggravated
kidnapping, and aggravated robbery.323 Although state criminal codes vary,
the vast majority of states do not include mental injury or impairment
within the definition of “bodily injury.”324 “The most common definition of
bodily injury . . . is ‘physical pain, illness, or any impairment of physical
condition.’”325 Other states include language specifying how severe a
physical injury must be or the types of physical marks needed.326 Montana,
one of the few states to include mental injury within the category of bodily
injury, defines bodily injury as “physical pain, illness, or an impairment of
physical condition . . . includ[ing] mental illness or impairment.”327 Thus,
although different from tort law in scope and purpose, criminal law also
properly distinguishes between bodily injury and emotional harm,
prioritizing bodily harm as more worthy of protection.
The Fifth Amendment’s right against self-incrimination also privileges
bodily injury over emotional distress. The Fifth Amendment protects
criminal defendants against coerced confessions.328 In determining whether
physical or emotional manipulation during police interrogations is
unconstitutional, Fifth Amendment doctrine grounds analysis in the
concept of voluntariness. Confessions violate the Fifth Amendment only to
the extent that they are involuntary,329 or not a product of a “free and
322
See Shen, supra note 21, at 2044 (“In a variety of criminal and quasi-criminal contexts, this
legislative line drawing between criminal and non-criminal behavior invokes the concept of ‘bodily’ (or
‘physical’) injury.”).
323
Id. at 2045–46.
324
Id. at 2048.
325
Id. at 2047.
326
Id. at 2047–48 (discussing the variations in the standard for physical injuries across states).
327
MONT. CODE ANN. § 45-2-101 (West 2013); Shen, supra note 21, at 2048 (internal quotation
marks omitted).
328
See U.S. CONST. amend. V (“No person . . . shall be compelled in any criminal case to be a
witness against himself . . . .”).
329
See Miranda v. Arizona, 384 U.S. 436, 464 n.33 (1965) (“It is now axiomatic that the
defendant’s constitutional rights have been violated if his conviction is based, in whole or in part, on an
involuntary confession, regardless of its truth or falsity.”); Bram v. United States, 168 U.S. 532, 542
(1897) (adopting voluntariness as a constitutional requirement for admissibility of confessions).
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330
rational will.”
A confession is considered involuntary when a
defendant’s will is overborne due to coercive questions, physical
mistreatment, or emotional manipulation.331
Although courts and scholars have fared no better than philosophers in
confronting issues related to voluntariness and free will in the Fifth
Amendment context,332 some instructive guidelines have emerged that
roughly track common sense experience with consciousness, the
physical/emotional distinction in tort doctrine, the “agency concern” in
civil recourse theory, and notions of free will in corrective justice. As in
other legal disciplines, physical compulsion is considered more corrosive
to free will than emotional harm. Suspects subjected to physical violence
are automatically considered to be acting involuntarily, whereas
“psychological coercion provokes no per se rule.”333 Just the fear of
physical violence from even a non-state actor renders a confession
involuntary, if a government agent is exploiting that fear.334 Physical
confinement—where a suspect is not free to leave a police station—causes
a confession to be presumptively involuntary unless Miranda warnings,
informing a suspect of her right to remain silent and receive an attorney,
are given.335
Emotional or psychological pressures become a Fifth Amendment
violation only when the government’s actions, not the subjective
infirmities of the suspect, overbear the will of the suspect.336 The mental
sophistication and emotional state of the defendant are relevant in cases of
psychological coercion only if known to and exploited by the police.337
Deception is permitted unless it rises to the level of overbearing the will of
330
See Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621,
625 (1996) (“Only confessions that were the product of a free and rational will were admissible.”).
331
Specifically, courts analyzing the voluntariness of a confession ask “whether a defendant’s will
was overborne by the circumstances surrounding the giving of a confession.” Dickerson v. United
States, 530 U.S. 428, 434 (2000) (internal quotation marks omitted).
332
Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for
Identifying Compelled Self-Incrimination, 93 CALIF. L. REV. 465, 468–70 (2005).
333
United States v. Miller, 984 F.2d 1028, 1030 (9th Cir. 1993).
334
See Arizona v. Fulminante, 499 U.S. 279, 288 (1991) (finding a confession coerced because “it
was fear of physical violence, absent protection from his friend (and Government agent) Sarivola,
which motivated Fulminante to confess”).
335
Charles D. Weisselberg, Mourning Miranda, 96 CALIF. L. REV. 1519, 1525 (2008).
336
See Colorado v. Connelly, 479 U.S. 157, 170–71 (1986) (explaining that the rationale of the
Court’s holding in Miranda was based on governmental coercion and, if the Court held that a waiver of
Miranda rights constituted coercion for any other reason, it would be overreaching beyond the holding
in Miranda and the Constitution).
337
See Smith v. Mullin, 379 F.3d 919, 934–35 (10th Cir. 2004) (admitting the confession of a
defendant whose “cognitive abilities were similar to those of a twelve-year-old” because the police
questioned him slowly and did not exploit his cognitive impairments). In Part V, I will argue that this
type of analysis should also be used in the tort context when dealing with emotional harm.
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338
the suspect. The police may lie about the strength of the evidence, may
falsely flatter the defendant, and may understate the moral reprehensibility
of the crime in an attempt to procure a confession.339 Psychological
manipulation does not render a confession involuntary in the same way as
threats of violence or physical force.340
Legal doctrine in the criminal law context also relies on the divide
between physical and emotional harm. Emotional harm is considered akin
to physical harm only in limited cases. Just as in tort law and free speech
doctrine, this distinction is based on notions of responsibility, agency, and
social utility. Yet there are certain cases where the hierarchy does and
should collapse because a duty to maintain one’s emotional health is
properly exercised.
V. IMPLICATIONS AND DOCTRINAL MODIFICATIONS
Responsive to criticisms of the physical/emotional distinction, a new
conception of the duties that we owe to protect ourselves and others from
emotional harm is consistent with much of existing doctrine. Further
attempts to expand emotional duties to others, however, should be
considered in light of this new conception.
Without devaluing the significance of emotional harm, the previous
Section argued against a general duty to protect others from emotional
injury, based on a duty to maintain our own emotional health.341 However,
there should be limitations to this duty to protect oneself. The justifications
for a categorical physical/emotional distinction do not hold in certain
situations. This Section explores exceptions to the general duty to maintain
one’s emotional health and how to handle cases where an event causes
both physical and emotional injury.
A. Emotional Duties and Eggshell Psyches
A duty to maintain and control one’s emotional health would require
individuals to reasonably handle their emotional responses, both before and
after distressing events. This duty justifies most courts’ rejection of the
338
See Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Miranda forbids coercion, not mere
strategic deception by taking advantage of a suspect’s misplaced trust . . . . Ploys to mislead a suspect
or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak
are not within Miranda’s concerns.”).
339
Christopher Slobogin, Lying and Confessing, 39 TEX. TECH L. REV. 1275, 1282 (2007).
340
See Captain Frederic I. Lederer, The Law of Confessions—The Voluntariness Doctrine, 74
MIL. L. REV. 67, 82 (1976) (explaining that determining the involuntariness of confessions which are
psychologically manipulated are more difficult to make and will “depend upon the character and
background of the suspect”).
341
See supra Part IV.B. (arguing that we should be subject to a legal duty to maintain our
emotions and that legal obligations to protect others should therefore be limited, particularly in tort
law).
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342
“eggshell psyche” rule.
Plaintiffs are compensated for emotional injury
only if the emotional injury results from conduct that would cause an
ordinarily constituted person to suffer such an injury.343 The seriousness
requirement ensures that plaintiffs are compensated only after they have
exercised their own duty to tolerate and handle emotional upset, and the
reasonableness requirement ensures that plaintiffs are held to a uniform
standard when doing so.344 Just as we require defendants to exercise a
reasonable duty of care to avoid causing others physical harm regardless of
defendants’ capacities,345 plaintiffs should be required to adjust and adapt
to life’s upsets reasonably, and to seek help for pre-existing conditions that
might render them “unreasonably” susceptible to emotional distress.
Compensating emotional injuries only in cases where a plaintiff
reasonably suffers serious emotional harm does penalize those who are
more sensitive yet undertake valiant efforts to manage emotional harm. As
mentioned above, this unfortunate effect is based on a unitary standard that
is not unlike holding defendants of varying capacities to an objective
standard of care. It is also necessary both conceptually and practically.
From a prudential standpoint, it is difficult to determine and prove which
plaintiffs are hypersensitive. Plaintiffs would have increased incentive to
depict themselves as possessing less capacity for emotional control.
Conceptually, the virtues of establishing a duty to exercise reasonable care
of one’s own emotional health, much like the duty to exercise reasonable
care to avoid causing harm to others, requires courts to maintain a unified
standard. Holding everyone to the same standard of reasonable emotional
responses cultivates beliefs in self-help and agency, allows for optimal
autonomy of defendants, and comports with various tort law theories, as
well as doctrines in other legal disciplines.346 Defendants can rely on
possessing spheres of autonomy in which they do not have to worry about
modifying their behavior in deference to others’ emotional wellbeing.
342
See Thierault v. Swan, 558 A.2d 369, 372 (Me. 1989) (“When the harm reasonably could
affect only the hurt feelings of the supersensitive plaintiff—the eggshell psyche—there is no
entitlement to recovery.”).
343
See supra notes 81–82 and accompanying text (noting that for emotional harms to be
compensable, they must meet a seriousness requirement and they must be the kind of harms that an
ordinary person would have suffered).
344
Id.
345
See Kenneth W. Simons, The Restatement (Third) of Torts and Traditional Strict Liability:
Robust Rationales, Slender Doctrines, 44 WAKE FOREST L. REV. 1355, 1379 (2009) (“The objective
test of reasonable care formally imposes a duty of care even on those who lack the mental capacity to
satisfy that duty.”).
346
See supra Part IV (describing, inter alia, the challenges to maintaining the physical/emotional
distinction and the support for the distinction).
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347
However, as in the Fifth Amendment context, unreasonable emotional
distress could be compensable in certain situations if a defendant knew
about and exploited the plaintiff’s psychological or emotional infirmities.
For example, if an employer purposely treated a psychologically
vulnerable employee differently and caused serious emotional distress, this
should be compensable because the employer’s change in behavior falls
outside the sphere of autonomy that the physical/emotional distinction
promotes.
Thus, an eggshell psyche rule, which would allow plaintiffs to assert
emotional injury based on their subjective distress even if they are
hypersensitive, should not apply to the duty inquiry for either negligent or
intentional infliction of emotional distress. Further, even if a plaintiff
demonstrates that he reasonably suffered serious injury, he should receive
damages only to the extent that a reasonable person would require
compensation. Thus, unlike the current state of the law, a rejection of the
eggshell psyche rule should apply not just at the duty inquiry—when
determining whether a defendant can be held liable at all—but also at the
damages inquiry. Individuals can then navigate the world without having
to account for emotional responses that are unreasonably severe.
B. Compensable Emotional Injuries
Even after exercising a reasonable amount of control over his
emotional state, there are situations where a plaintiff would experience
serious emotional distress. Our emotional duty to ourselves becomes less
relevant when psychological distress compromises our voluntary ability to
exert emotional control or is bound up in either promotion of bodily
integrity or some other independent and protectable interest,348 which is
protected by a separate duty imposed on the defendant. In cases where
most people would become emotionally distraught to the point of needing
care or treatment, an emotional injury should be compensable, if the
recognition of the emotional harm does not unduly compromise the
autonomy rights of either party.349
347
Cf. supra Part IV.B.3.b. (discussing “the context of the Fifth Amendment’s right against selfincrimination” and how courts often permit police officers to manipulate criminal suspects
emotionally).
348
See Dianne M. Tice et al., Emotional Distress Regulation Takes Precedence Over Impulse
Control: If You Feel Bad, Do It!, 80 J. PERSONALITY & SOC. PSYCHOL. 53, 54 (2001) (“Ample
evidence has indicated that self-regulation (especially impulse control) tends to deteriorate during
periods of emotional distress.”).
349
An example of this would be courts’ refusal to compensate emotional injuries in cases where
protected speech is at issue. See Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2010) (involving protected
speech). Even some cases involving sexual harassment may infringe too far into the speech interests of
the defendant. See Volokh, supra note 321, at 647 (concluding that harassment law burdens workplace
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When an event is so distressing that it overtakes a plaintiff’s ability to
temper his own emotions, tort law does provide redress for plaintiffs.350 As
Goldberg and Zipursky note, “[t]here are situations in which a reasonable
person cannot be expected to keep a stiff upper lip; she cannot be expected
to avoid responding by tumbling into severe emotional distress, that is,
situations in which the mountain is a mountain, not a molehill.”351 This is
why negligent infliction of emotional distress and intentional infliction of
emotional distress claims allow compensation for injuries in certain cases
that are likely to provoke a reasonable person to serious emotional
injury.352
It will be difficult for courts to determine when a plaintiff has properly
exercised his duty to manage his own emotional health and is nonetheless
still suffering from serious emotional injury. Courts should start by
considering cases where an independent duty of care (owed to something
other than plaintiff’s emotional well being) is breached by the defendant.
First, courts should recognize that the protection of bodily integrity is a
primary concern of tort law, given the physical/emotional distinction.353
Emotional injuries that stem from fear of one’s life or physical safety, and
perhaps the physical safety of others, are more likely to be reasonable, in
both an empirical and a normative sense.354 Courts could even reframe
these emotional injuries as injuries caused by a defendant’s breach of her
duty to take care not to cause physical harm to the plaintiff. Although no
physical harm results,355 the defendant has negligently placed the plaintiff’s
bodily integrity in jeopardy, leading to serious emotional injuries like
fright and anxiety. Thus, if the defendant negligently hits the plaintiff’s
automobile in a way that reasonably causes the plaintiff emotional trauma,
the defendant should compensate the plaintiff for these emotional injuries,
to the extent that they are reasonable.
speech even though speech may be political or not severe or pervasive enough). The emotional duty to
temper our own emotional states could thus include a normative, as well as an empirical, component.
350
Goldberg and Zipursky explain that fright from fear of a bullet whizzing past one’s head or an
automobile accident provokes a response that is “visceral, immediate, and unthinking. In this context, it
makes little sense to hold the plaintiff responsible for the response and makes much more sense to think
of the plaintiff as a victim who exercised little or no agency.” Goldberg & Zipursky, Unrealized Torts,
supra note 8, at 1685–86.
351
Id. at 1687.
352
See supra text accompanying note 77 (“Most courts bar recovery for stand-alone emotional
injury, like negligent infliction of emotional distress, unless a defendant’s actions are of a sort that
would cause serious emotional distress, even to a person of reasonable or ordinary resilience.”).
353
See supra note 71 and accompanying text (“Tort law is less willing to protect emotional
injuries that are unrelated to either bodily integrity or to an independent, non-emotional interest.”).
354
Indeed, some courts have held that “while physical injury is no longer a necessary element of a
cause of action to recover damages for negligent infliction of emotional distress, such a cause of action
must generally be premised upon conduct that unreasonably endangers the plaintiff’s physical
safety.” Losquadro v. Winthrop Univ. Hosp., 216 A.D.2d 533, 534 (N.Y. App. Div. 1995).
355
If physical harm resulted, the plaintiff would primarily be suing for a physical injury.
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Further, if some other independently recognized interest of the
plaintiff’s is harmed, and the plaintiff reasonably suffers emotional injury
as a result, there are cases where the plaintiff should be compensated for
those emotional injuries. This would cover interests like libel, workplace
harassment, and discrimination, if state law independently protects these
interests. Although courts should fully protect these interests qua interests,
courts should be less protective of the emotional harms stemming from
these interests. Courts should consider whether it is reasonable to suffer
serious emotional injury and the extent of the injury it is reasonable to
suffer in these types of cases. There will be instances where plaintiffs may
reasonably be expected not to suffer serious emotional injury, for example,
once their interests are vindicated, their economic losses are compensated,
and their jobs are restored.
Tort law should not concern itself with generally protecting emotional
tranquility. Thus, in cases where an interest can be vindicated, this
vindication should be the court’s primary goal. However, if an interest
cannot be vindicated, courts should allow emotional distress damages to
the extent that they are reasonably serious. For example, a court allowed
emotional distress damages against a store for negligently reporting to the
police that a customer was counterfeiting money.356 The interest in not
being falsely arrested and imprisoned overnight could not be vindicated, so
emotional distress damages in that case both compensate for the emotional
injury and serve to vindicate the interest.357 Cases involving violations of
independent interests, leading to emotional harm, differ from the cases
above where bodily integrity was put in jeopardy, causing emotional harm.
In the latter cases, the interest in bodily integrity cannot be vindicated
because no physical harm has occurred.
This approach would leave intact a good deal of the Restatement’s
treatment of emotional injuries,358 although bystander liability could be
limited or expanded, depending on a court’s view of the desirability of
rules versus standards. The Restatement’s approach to negligently-inflicted
emotional distress carves out rules for when bystanders can receive
compensation for their emotional injuries.359 These rules are likely
356
Pool v. City of Oakland, 728 P.2d 1163, 1176 (Cal. 1986).
Cf., Drew Alan Hillier, Note, The Necessity of an Equity and Comity Analysis In Younger
Abstention Doctrine, 46 CONN. L. REV. 1975, 1983 (2014) (“[O]nce a criminal charge has been
publically levied, the harm that the charge alone causes cannot be compensated for by damages.”).
358
See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM § 47 (2012)
(recommending that the actor who causes emotional harm to another because of negligent conduct
should be subject to liability if they “place[] the other in danger of immediate bodily harm and the
emotional harm results from [that] or [it] occurs in the course of specified categories of activities . . . .
where negligent conduct is likely to cause serious emotional harm”).
359
Currently, bystanders to the infliction of serious bodily harm to another can recover if the
bystander “(a) perceives the event contemporaneously, and (b) is a close family member of the person
357
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intended to approximate situations where the worst emotional harm occurs.
Courts could also use a voluntariness standard instead of applying
categorical rules, allowing compensation for bystanders’ emotional distress
in cases where a reasonable person’s capacity in tempering emotional
responses would be compromised. Or, courts could rely on bright line rules
establishing stricter (no bystander liability unless the plaintiff’s safety was
directly jeopardized) or less strict (all bystanders who witness death or
serious physical injury of a familiar party) rules for compensation. Any of
these approaches would be consistent with adherence to a
physical/emotional hierarchy based on a duty to exercise care for one’s
own emotional health, and the right approach would depend on a court’s
views of the ability to administer fairness and justice, not to mention other
pragmatic concerns like crushing liability and limited funds.
In negligence cases, to demonstrate that a bystander’s emotional
distress reasonably compromised voluntariness in cases where no duty of
physical safety has been breached, however, the plaintiff should be
required to show a clinically diagnosable mental health condition.360 This
extra requirement, which would limit potentially expansive bystander
claims and focus on those for whom bodily integrity was jeopardized,
should not exist in cases where the defendant has breached a separate duty
to the plaintiff’s physical safety, as in the automobile example above. It
should attach only when the defendant has solely breached a duty to
plaintiff’s emotional well-being. In cases where a duty to exercise
reasonable care to protect the plaintiff’s physical safety has been breached,
even if the plaintiff suffered no physical injuries, he should be required to
show only that he reasonably suffered serious emotional distress. In this
way, the physical/emotional hierarchy is preserved by privileging those
whose emotional injuries stem from defendant’s jeopardizing their physical
integrity, while also allowing those who have reasonably experienced
serious emotional injury to be compensated.
Thus, at the duty stage, one approach would be to require plaintiffs to
demonstrate an emotional injury that is either severe or clinically
significant to the extent of reasonably compromising voluntariness, or
serious and closely related to jeopardizing a plaintiff’s physical integrity or
an interest that cannot be fully vindicated. Plaintiffs should also
demonstrate that the extent of their damages is reasonable, and not greater
suffering the bodily injury.” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL
HARM § 48 (2012).
360
This is what Betsy Grey would require for compensation of all emotional injuries. See supra
Part III.A. (describing Betsy Grey as a proponent for the English unitary view of tort law, which
abolishes the distinction and treats emotional harm as an aspect of bodily harm). She, however, would
disband with any of the other heightened pleading requirements for emotional distress, and would
likely not endorse a duty to maintain one’s own emotional health.
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than the extent a reasonable person would experience. In allowing for
compensation of certain types of emotional injuries, courts should
recognize that, as noted by those who wish to blur the physical/emotional
distinction, emotional harm increasingly can be proven. Courts should
create standards for assessing and demonstrating emotional harm as
technology improves and mental illness becomes better understood.
C. Parasitic Physical and Emotional Damages
A duty to reasonably regulate one’s own emotional health would alter
how courts treat parasitic injuries—emotional damages that flow from
physical injury or the violation of an independent interest—in addition to
physical injuries that flow from the violation of one’s emotional
tranquility.
Unlike current doctrine, when a physical injury causes emotional harm
or pain and suffering, a plaintiff’s parasitic emotional injuries should still
be subject to the requirement that they be reasonably serious.361 If what
separates physical injury from emotional injury is a duty to regulate one’s
own emotional health, this duty should apply equally to parasitic damages
for emotional injury as to claims for stand-alone emotional injury. In the
case of parasitic damages, it will be relatively easy to demonstrate a
reasonably serious emotional injury, especially if the physical injury is
serious. However, because the emotional losses from physical injury are
usually less enduring than people think,362 perhaps plaintiffs’ emotional
damages should be limited in time, at which point they will no longer need
treatment or intervention for their emotional injuries. To the extent that
physical pain persists, and to the extent that damages for “suffering”
captures the intangible costs of lost capabilities, these damages should not
be limited in time.363
This Article departs most dramatically from the Restatement in its
approach to physical harms that result from emotional distress. The
361
Many courts allow damages for all of a plaintiff’s emotional distress and pain and suffering
consequent to a physical injury. See Bligh v. Travelers Home & Marine Ins. Co., No.
HHDCV106016059S, 2013 WL 4421312, at *9 (Conn. Super. Ct. July 29, 2013) (“A plaintiff who is
injured by the negligence of another is entitled to be compensated for all physical pain and suffering,
mental and emotional suffering, loss of the ability to enjoy life’s pleasures, and permanent impairment
or loss of function that she proves by a fair preponderance of the evidence to have been proximately
caused by the negligence of another.”).
362
See supra Part III.B. (“[I]ndividuals often overestimate the hedonic losses from physical
injuries . . . . because ‘human beings are unexpectedly resilient . . . .’”).
363
There is significant debate about how best to calculate pain and suffering damages. Some
scholars propose awarding damages to tort plaintiffs, even if they have hedonically adjusted to physical
injuries, based on lost capabilities. See, e.g., Rick Swedloff & Peter H. Huang, Tort Damages and the
New Science of Happiness, 85 IND. L.J. 553, 577–80 (2010) (arguing that none of these awards are
granted without consideration of adaptation, even if implicitly); see generally MARTHA NUSSBAUM &
AMARTYA SEN, THE QUALITY OF LIFE (1993).
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Restatement provides that bodily injury that results from emotional distress
should be treated as a physical injury, and thus not subject to the
heightened pleading requirements of reasonableness and severity that
attach to stand-alone emotional harm.364 However, given an emotional duty
to ourselves, only physical injury that reasonably results from emotional
injury should be compensated. If a pregnant woman miscarries because she
experiences extreme fear from a negligently caused accident, her fear
response is likely reasonable, especially if her physical safety was placed
in jeopardy. But, if someone commits suicide after being subject to
extremely limited libel, or mild workplace harassment, or perhaps even
after witnessing a minor accident that injured another, courts may well
consider this an unreasonable emotional response, even though it led to
bodily injury; nonetheless the Restatement would treat it as a bodily
injury.365 While tragic, the unanticipated and extreme responses of the
emotionally and psychologically vulnerable should not be taxable to
defendants unless they purposely exploited this vulnerability. The
reasonableness component of the emotional duty to oneself should thus
also attach to bodily injury that is brought about solely through the medium
of emotional harm.
This treatment of physical harms that cause emotional harms, and
emotional harms that result in physical harms, would unify the law’s
conceptualization of the physical/emotional distinction, even in areas
where both harms are at issue. Breaches of emotional integrity should be
treated differently than breaches of physical integrity. Because of a duty to
maintain one’s emotional health, heightened requirements should apply at
the liability and damages stages for emotional injuries or at instances
where physical safety is not placed in jeopardy. Physical injuries that arise
through the medium of emotional injuries should also be subject to
reasonableness requirements, but if they are based on jeopardizing the
plaintiff’s physical integrity they will generally be considered reasonable.
Physical injuries that arise through impact or physical trauma are not
subject to heightened pleading requirements, and are afforded the eggshell
plaintiff rule, and emotional injuries that result therefrom will generally be
considered reasonable. A duty to avoid causing others physical harm exists
generally, whereas a duty to avoid causing others emotional injury exists
only in limited cases.
364
Supra notes 76–77 and accompanying text.
More should be said here about bullying, especially bullying of children, or bullying of
children by children, but that is beyond the scope of this Article, especially as children are held to
different standards of care in tort law, see Presumptions Based on Age, 42 AM. JUR. 2D Infants § 127
(2010), and thus should also be held to different emotional duties to maintain their own emotional
health.
365
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VI. CONCLUSION
This Article has begun to establish theoretical justifications for the
physical/emotional distinction in tort law. Imposing an emotional duty to
maintain one’s own emotional health would not only explain and justify a
good deal of tort law, it would unify its principles with other legal
disciplines. Ultimately, this duty would benefit both plaintiffs and
defendants and send a message that emotional health is serious, that it must
be tended to prior to traumatic events, and that it can be within our own
control.