Private Law Theory

In their contribution to this New Torts symposium, Professors Kenneth Abraham and G Edward White advance the interesting thesis that the ancient tort of offensive battery, initially recognized under the writ of trespass, and later substantiated in the three iterations of the Restatement of Torts, has experienced a newfound popularity in its linkage to federal statutory claims of sex discrimination under Title VII and constitutional deprivation of civil rights in Section 1983 cases. In Part I of this Essay, I will provide a broader context on the long history of misconduct generating a tort claim for ‘offensive’ behavior without physical harm. Then, in Part II, I will indicate the many pathways of a far more expansive conception of recoverable stand-alone emotional harm that rests on cultural change in a distinctly modern-day setting. Finally, I will offer some concluding observations.

Robert L Rabin, Stand Alone Emotional Harm: Old Wine in New Bottles, 73 DePaul Law Review 733 (2024).