Ethereal Torts

Publication Date


Document Type



Tort litigation has extended liability over time and space, through toxic tort cases as well as unknown and perhaps unknowable risks in products liability cases. Different types of mass tort litigation have spawned different permutations of claims and theories. The movement toward multiple causation and accountability encompasses complex notions of responsibility among multiple parties to an occurrence. Modern torts have particularized mental-state requirements, and there has been a refinement in the approach to mental state generally. Finally, the judiciary's development of common law liability has been accompanied by an upheaval in the theoretical bases for tort liability: commentators have explored the courts' movement from individual to collective notions of responsibility, and have varied widely in advancing the rationales of deterrence, corrective and distributive justice, and compensation underpinning the imposition of liability.

This Article focuses on one aspect of the increasing uncertainty in tort law, termed "ethereal" or "ephemeral" substantive torts: causes of action for intangible or emotional injuries or deprivations of expectancy or reliance interests, the privacy torts, infliction of emotional distress, breach of confidence, breach of good faith, interference with economic expectancies, loss of a chance, or loss of choice. It traces the increasing "etherealization" of tort law over the past several hundred years: the movement of tort law historically from compensating only direct and tangible personal injury and property harms to the relatively modern compensation of emotional and expectancy interests.

It also discusses how advances in science, technology, and epistemology created many of the hazards giving rise to ethereal injuries and made possible the evaluation of their impacts. Jurisprudential influences from multiple divergent areas emphasized the importance of acknowledging probabilistic and relational injuries. Several barriers remain, however, that prohibit the full compensation of ethereal torts.

The principal impediment to recognition of emotional and probabilistic injuries is the devaluation of those types of injuries by society and courts. A number of institutional forces keep ethereal injuries from being fully recompensed. As new interests become legally cognizable claims, the tensions of the common law adjudication process-between the individualized goal of compensatory justice and the systemic goal of predictability in law-result in the dismissal of many meritorious claims. Although there is an attempt to confer predictability and legitimacy on new torts with the specification of particular elements, often the elements are inelegantly or too restrictively framed to capture the essence of the tort.

On the institutional level, the judicial forum has been particularly unreceptive to tort claims established by evidence from the sciences and social sciences. Part of the unwillingness to accept fully social science evidence supporting ethereal torts relates to the structure of the trial court decision-making process. More fundamental, however, a comparison of the scientific evidence that is accepted in parallel contexts with that which is rejected in ethereal torts cases suggests that the injuries at the heart of ethereal torts are both undervalued and ignored.

The article argues that ethereal torts should be taken seriously and explores a growing body of evidence from other disciplines about the biological, psychological, and psychosocial importance of disrupted expectations, lost chances, and unrepaired emotional injuries. The obligation to recognize and compensate intangible injuries is heightened because of the reconstructive nature of tort law: the messages that tort law sends about what "reasonable people" ought to feel and how they ought to behave. The individual expectancy, dignity, and autonomy interests that ethereal torts protect are intrinsically valuable. Further, recognition of these interests is promising on a collective level. Acknowledgement of these values will foster a more rational, pluralistic, and communitarian society.

Publication Title

George Washington Law Review