ABSTRACT
Privity reinvigorated in the current century comes with a few tradeoffs, to be sure. It does not have the pre-MacPherson sweeping power to vaporize an unwanted complaint, especially one alleging physical injury, but in some respects it is more useful for entities that line up on Team Defendant. If pre-MacPherson privity had been a citadel looming large and fierce on the horizon, twenty-first century privity is an electric fence. Or, to continue down the lane of metaphor, the contemporary version of privity, called Privity 2.0 in this Article, is software code slipped into a machine at the apparent initiative, but without any conscious acceptance, of the person who gets blocked by this barrier. Affecting an air of liberal enlightenment, Privity 2.0 acknowledges that duty of care is the norm and tort immunity the exception. Of course a person or business engaged in an activity that risks physical injury when done carelessly owes care to foreseeable plaintiffs. Of course injured persons may seek damages in court. Right to jury trial? Of course. Does a plaintiff need a contractual relation with the defendant to bring a tort action? Of course not! American tort law celebrated the MacPherson centenary years ago. This revision of duty understands human beings to have an entitlement to integrity-integrity of their bodies very much included-and a correlative right to tort redress when they suffer a wrong. Instead of casting injured persons as strangers to the defendant, invisible to it and unworthy of its regard, Privity 2.0 celebrates their freedom by purporting to honor the deals they made. Privity back in the day had told injured individuals they lacked a credential necessary for relief. They weren’t good enough to deserve ordinary care. Because rich people have always enjoyed an enlarged share of contract rights and remedies comparable to the enlarged share of cash they also enjoy, the application of privity that defeated nineteenth-century plaintiffs pushed the same button that makes people feel ashamed of being poor. Twenty-first century privity, the spelled-out kind, dishes out no humiliation to anyone for lacking wealth. Quite the contrary. It celebrates the strength of ordinary persons to read at a high level, exercise choice, negotiate, and focus on their interests. Aided by the insights of microeconomics-a discipline that had no overt influence on law in the old privity era-privity as revived can even say why it isn’t necessarily perverse to renounce one’s remedies.
Bernstein, Anita, Privity 2.0 May Be Even Better for Tort Defendants (May 22, 2024), Florida State University Law Review, volume 49, no 4, 765, 2022; Brooklyn Law School, Legal Studies Paper No 770.
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