Shadow Tort Law: Lessons From The Reptile

For over a decade, a battle has been raging in the trial courts of this country over something called the "reptile theory," often simply referred to by insiders as "the reptile." The term comes from the book Reptile: The 2009 Manual of the Plaintiff's Revolution. The book's thesis is that the way for plaintiffs to win tort cases and secure large verdicts is to appeal to the reptilian part of jurors' brains, which (like threatened snakes) reacts with anger at threats to their security. This reaction is created mainly by subtly modifying the applicable standard of care in negligence cases. At the core of the reptile battle, then, is a dispute about the meaning of negligence. Though it is notorious among trial lawyers, the reptile has been invisible or barely visible to torts scholars, because the issues it poses are governed by a body of trial-level substantive tort law that is unreviewed, and for practical purposes largely unreviewable, by the appellate courts. This is what I call "shadow tort law," arising from rulings on questions that can be asked prospective jurors on voir dire, on motions in limine intended to preclude use of the reptile strategy, and on what counsel may and may not argue during closing argument. In order to uncover how the reptile figures in the development of shadow tort law, this Article first describes what the reptile is and how its proponents and opponents deal with it pre-trial and trial settings. The Article then turns to the meaning of negligence as applied in these settings, analyzing the arguable gap between what the reptile strategy prescribes and what the law of torts provides, as well as the significance of that gap. Finally, the Article reflects on the jurisprudential implications of the analysis. It turns out that a lesson of the reptile controversy is that the law of torts (and arguably other bodies of law as well) is not always a single, continuous body of doctrine running from the filing of a complaint through to a final appeal. Rather, tort law is to a meaningful extent partly discontinuous, often operating in different, largely autonomous domains.