The Puzzle of the Dignitary Torts
In recent years there has been much greater legal attention paid to aspects of dignity that previously have been ignored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular, certain forms of tort liability are imposed in order to protect individual dignity of various sorts, and to compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonment fall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express attention in the tort cases or torts scholarship. The absence of a robustly-articulated conception of the interest in dignity that tort law protects is a puzzle. Why have notions of dignity and of dignitary torts been little more than labels, reflecting a value that has gone unanalyzed and undebated, despite its obvious and growing importance? The answers to these questions lie in the structure of the common law of torts, in the history of twentieth-century tort law scholarship, in the jurisprudence of doctrinal boundaries, and – perhaps surprisingly – in developments in constitutional law during the last four decades of the twentieth century. In the first analysis of the dignitary torts as a whole in half a century, this Article explores the puzzle of the dignitary torts. It argues that these torts have been under-theorized because of the very nature of the common law system, which poses a powerful obstacle to any doctrinal reorientation of tort law toward the understanding or creation of a unified species of dignitary torts. The law of torts may be fully capable of protecting the forms of dignity that our world increasingly recognizes and honors, but it turns out that it must do so in the same manner that it has always protected the interests that are central to our values, cause-of-action by cause-of-action.