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As an early-career beneficiary of Jotwell, I often use my annual platform to spotlight the work of emerging or underappreciated scholars. Robert Rabin is emphatically not a member of that group. Why, then, is Stand Alone Emotional Harm: Old Wine in New Bottles by Robert L. Rabin, the thing I like lots right now? The piece elegantly observes – and joins – an incipient movement to recenter in tort non-physical injuries that tarnish American social life. These claims have long been ridiculed by mainstream tort, so they need a prominent champion like Rabin.

Rabin’s contribution to the 2023 Clifford Symposium on Tort Law and Social Justice¹ is compact but undeniable. In eleven short pages, he makes the case that much maligned non-physical injuries actually have a centuries-long pedigree in tort. The drunken hatcheteer in I de S. v. W de S.,² for example, was made to pay the tavernkeeper who escaped the blade because assault doctrine recognized a personality interest extending beyond the body. The same expansive notion of personality, he observes, has been driving judges since the nineteenth century to order compensation for those suffering “serious emotional distress” at the hands of others.³ Over time, he suggests, these exceptions have come to look a lot like a new rule, one willing to stigmatize one-on-one behavior that inflicts non-physical social harm.

He begins with the nineteenth century expansion of consortium claims to cover not just a husband’s loss of a wife’s services but any spousal loss of companionship.⁴ From there, he identifies turn-of-the-century forerunners to the intentional infliction of emotional distress tort (IIED), including the chestnuts Wilkinson v. Downton⁵ and Nickerson v. Hodges,⁶ in which women ridiculed by community jokes won compensation for their long-term trauma. He sees the tort of negligent infliction of emotional distress as a cousin to IIED in its willingness to forego a physical injury requirement and instead compel compensation for “pure unadulterated distress and grief” experienced by those who narrowly escape harm or watch loved ones suffer it.⁷

Rabin next documents how even torts that do not allude to emotional distress legitimate it as an interest. For example, twentieth century privacy law treats as worthy of legal recognition a personal interest in dignity and control over one’s physical surroundings and intimate information.⁸ And twenty-first century privacy law has attempted to deter revenge pornography and sexualized deepfake imagery.⁹ Finally, given his expertise in health care and compensation systems, it is unsurprising that Rabin finds tributaries of emotional harm protection emerging in both arenas, via intensified informed consent requirements and the introduction of emotional distress as a component of workers compensation awards.¹⁰

This history shows the length and breadth of tort’s concern for non-physical injury; it neatly refutes the canard that tort has limited itself to body and property. That alone, coming from Rabin, should afflict the comfortable. But he is not content to simply offer an alternate history of psychic harms in tort. He also aims to offer a theoretical justification for placing these harms in the modern mainstream. Here, too, his voice is critical and welcome. Body and property are physical artifacts, knowable to all and bearing objective properties, so there is general agreement on the equity of holding actors liable for injuring them. In contrast, non-physical injury does not take up space in the observable world. Thought to reside exclusively in a plaintiff’s psyche, it is often condemned as too “subjective” and “untethered” to deserve tort recognition.¹¹

Rabin takes this objection seriously. He responds by offering an unusually precise taxonomy of tort’s non-physical interests, extracted from both doctrine and caselaw. So, for example, loss of consortium and bystander NIED awards treat, as real tort injuries, “grief and despair” at the loss of expressive family relationships.¹² The various privacy actions treat as real tort injuries invasions of “personal inviolability” and “dignity.”¹³ Informed consent, too, protects patient dignity and individual autonomy.¹⁴ Workers’ compensation awards for non-physical harm reflect a legal interest in avoiding the depression, fear, and occasional guilt that may arise from accidents and injuries in the modern workplace.¹⁵ Finally, Rabin tackles the least bounded tort of all, IIED. He acknowledges that tort is wary of declaring an interest in deterring “rude” or “uncivil” behavior but suggests that in the twenty-first century, the tort expresses the law’s rejection of the “abuse” that is too often visited on women and people of color.¹⁶

Will this sincere attempt to concretize tort’s interests in non-physical harm satisfy the emotional injury naysayers? Plaudits to Rabin aside, I’m not sure. It is true that a new generation of tort scholars, myself included, are entirely sympathetic to the idea that non-physical injury is real and that tort duties are not limited to the physical world.¹⁷ But we, and Rabin, too often draw from a menu of soft, aspirational words like “dignity,” to describe the preferred interest; and equally soft condemnatory words like “distress” or “abuse,” to describe the wrongs at issue. Once tort ventures into the intangible, skeptics pounce.

Luckily, these words do have meaning. A right to “dignity” can be understood as an expectation of equal worth,¹⁸ while “abuse” is arguably a wrong because it connotes a “using up” of someone else’s worth.¹⁹ Of course, in life generally, and American capitalist life specifically, we use others with some regularity. When does the “implied license of the playground”²⁰ exhaust itself? Hard to know.²¹ Perhaps, contra Rabin,²² the concept of “insult” does have a useful role to play in identifying the line between rightful gumption and wrongful aggression. Insult originally meant to “trample on,”²³ and, later, identified behavior that was considered “exulting” or “arrogant.”²⁴ It conjures an actor who assumes he is “up here,” while others – often by virtue of socially constructed hierarchies – are “down there.”²⁵

Notably, this concept aligns almost precisely with the cases Rabin uses to illustrate the past, present, and future law of non-physical wronging. The barkeep expected to open her tavern at the whim of a tippler?²⁶ A woman. A spit-upon battery plaintiff?²⁷ A man whose net worth was one percent of his assailant’s. The proto-IIED plaintiffs?²⁸ A would-be widow, and a mentally fragile spinster. The NIED plaintiffs?²⁹ A frightened child and two mothers grieving offspring killed by malfunctioning machinery. The privacy plaintiffs?³⁰ A quadriplegic woman filmed for a reality television show and a teenaged girl whose portrait was used unbeknownst to her to advertise flour. In virtually every case, the plaintiff belonged to a gender, class, or race identity group with limited access to economic or social capital, while the defendant belonged to a corresponding identity group with generous access to those resources. And in almost every case, the defendant seemed to assume this status gap justified the intentional or careless treatment of the plaintiff as unworthy in relation to him. Thus, the dignitary injuries in each case are grounded in status hierarchies and might more plausibly be called tortious insults than tortious indignities or abuses.

Friendly amendments notwithstanding, Rabin’s typically incisive commentary comes at a crucial time. The American Law Institute is deep into work on the Remedies and the Defamation and Privacy sections of the Restatement (Third) of Torts,³¹ and if they pay attention to it, Rabin’s powerful work of history and theory has the potential to modernize tort’s approach to interpersonal wrongs and remedies for the current age.

1. 29th Annual Clifford Tort Symposium Discusses New Torts, Clifford L. Off.
2. Id. at 733 (citing I de S. v. W de S., Y.B. Lib. As. Folio 99, placitum 60 (Assizes 1348)).
3. Id. at 734.
4. Id. at 735.
5. Id. at 736 (citing Wilkinson v. Downton, 2 Q.B. 57 (1897)).
6. Id. (citing Nickerson v. Hodges, 146 La. 735 (1920)).
7. Id. at 738.
8. Id. at 738-40.
9. Id. (citing, inter alia, Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)).
10. Id. at 741-43.
11. See, e.g., Cristina Carmody Tilley, The Tort of Outrage and Some Objectivity about Subjectivity, 12 J. Tort L. 283 (2019).
12. Rabin, supra note 1, at 736.
13. Id. at 738.
14. Id. at 741.
15. Id. at 742-43.
16. Id. at 736-37.
17. See, e.g., Scott Skinner-Thompson, Anti-Subordination Torts, 83 Ohio St. L.J. 427 (2022).
18. Dignity, Online Etymology Dictionary (last visited Oct. 1, 2024).
19. Abuse, Online Etymology Dictionary (last visited Oct. 1, 2024).
20. Vosburg v. Putney, 50 N.W. 403, 404 (Wis. 1890).
21. See, e.g., Anita Bernstein, Reciprocity, Utility, and the Law of Aggression, 54 Vand. L. Rev. 1, 8-9 (2001).
22. See, e.g., Restatement (Second) of Torts § 46 cmt. d (Reporter William L. Prosser noting that “mere insults” and “petty oppressions” are “trivialities” to which recipients must simply “harden” themselves in a society with “rough edges”). See also Rabin, supra note 1, at 737, (ruling out “rudeness” as wrongful).
23. Insult, Online Etymology Dictionary (last visited Oct. 1, 2024).
24. Id.
25. See, e.g., Jeffrie G. Murphy, Forgiveness and Resentment, in Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy 25 (1990).
26. Rabin, supra note 1, at 733.
27. Id. at 734 (citing Alcorn v. Mitchell, 63 Ill. 553 (1872)).
28. Id. at 736 (citing Wilkinson v. Downton, 2 Q.B. 57 (1897); Nickerson v. Hodges, 146 La. 735 (1920)).
29. Id. at 737-38 (citing Dillon v. Legg, 441 P.2d 912, 914 (Cal. 1968); Porter v. Jaffee, 417 A.2d 521 (N.J. 1908)).
30. Id. at 738-40 (citing Shulman v. Group W. Prods, Inc., 955 P.2d 469 (Cal. 1998); Robertson v. Rochester Folding Box Co., 64 N.E. 442 (1902)).
31. See, e.g., Restatement (Third) of Torts: Remedies Tent. Draft No. 2 (April 2023) §§ 21-22 (discussing emotional distress and dignitary harm).