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22/23Torts LAW: Cases, Perspectives, and
Problems.
Tort law provides monetary compensation to redress a plaintiff ’s claim that
the defendant injured her, interfered with her property, invaded her privacy, or
invaded another legally protected interest. In some circumstances, where
future harm is threatened, equitable relief, usually in the form of an injunc-
tion, may be available. While the circumstances that led to the harm might
also support a criminal prosecution, claim for breach of contract, or other civil
law complaint, the law of torts focuses on non-contractual rights and liabilities
arising where no one promised to pay for the damages and without regard to
whether the government could prosecute the actor for a crime. DAN B. DOBBS,
THE LAW OF TORTS § 1, p. 1 (2001) (“A tort is conduct that amounts to a legal
wrong and that causes harm for which courts will impose civil liability.”). See
also Thomas C. Galligan Jr., Deterrence: The Legitimate Function of the Public
Tort, 58 WASH. & LEE L. REV. 1019, 1022 (2001) (torts is about redress or equi-
table relief to prevent or restrain injury).
Major technological advances create new forms of injury that require updat-
ing the law of torts. See, e.g., Nicolas P. Terry, When the “Machine That Goes
‘Ping’ ” Causes Harm: Default Torts Rules and Technologically-Mediated Health
Care Injuries, 46 ST. LOUIS U. L.J. 37 (2002). In the 1960s, products liability
evolved to address the social problems caused by marketing dangerously
defective products. Today, tort law is evolving to address new injuries from the
vulnerabilities of Internet networks. Society faces new threats related to
cybersecurity, software, and the mutual vulnerabilities of the networked world.
, Software vulnerabilities negligently enable cybercrimes such as the misap-
propriation of trade secrets, computer crimes and abuse, and economic espio-
nage. Creative lawyers apply ancient personal property torts, such as trespass
to chattels, to counter threats such as computer viruses and the disruption of
massive amounts of e-mail spam. Old torts counter new Internet-related
threats such as the enablement of cybercrime, inadequate cybersecurity, online
privacy, and identity theft. See Michael L. Rustad & Thomas H. Koenig,
Rebooting Cybertort Law, 80 WASH. L. REV. 335 (2005); Nicolas P. Terry,
A Medical Ghost in the E-Health Machine, 14 HEALTH MATRIX 225 (2004);
Cyber-Malpractice: Legal Exposure for Cybermedicine, 25 AM. J. L. & MED. 327
(1999); Legal Pitfalls of Cybermedicine, MED. ETHICS 4, LAHEY CLINIC, (Winter
2000) Tort law offers a unique opportunity for insight into the legal system far
beyond the comprehension of a set of legal rules that defi ne the various torts.
The new law student will gain an appreciation of the fundamental value con-
fl icts faced by judges, legislators, administrators, and juries who must resolve
tort claims. The tort system is a site for struggles between the societal need for
containment of risks and freedom to take action. The student should refl ect on
the process by which the legal system attempts to resolve these disputes and
the ethical dilemmas that arise out of the litigation process. A true apprecia-
tion of the public policy implications of tort law requires refl ection on the
immediate and long-range impact of the tort system. As Justice Mathew O.
Tobriner observed, while commenting on “this risk-infested society:” “Our cur-
rent crowded and computerized society compels the interdependence of its
members.” Tarasoff v. Regents of the University of California, 551 P.2d 334, 347
(Cal. 1976).
Over the past few decades, tort law has been at the center stage of public
policy debates. William L. Prosser, in his classic tort treatise, described tort law
as a “battleground of social theory.” W. PAGE KEETON, ET AL., PROSSER AND
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