Benjamin C. Zipursky, Ph.D., is the James H. Quinn ’49 Chair in Legal Ethics and the associate dean for research at Fordham University School of Law. He is a leading scholar of Torts, Jurisprudence and Legal Ethics and co-author of Torts: Responsibilities and Redress (Aspen, 2008) and The Oxford Introductions to U.S. Law: Torts (Oxford, 2010). In his decanal role, he helps cultivate the research productivity of Law School faculty.
You taught philosophy before you became a lawyer. How has your background in philosophy influenced the development of your scholarship?
“While I was teaching philosophy at New York University, I attended a weekly seminar on law, philosophy and political theory that was a big part of what led me to go to law school. After law school, I practiced at a law firm in products liability law and tort law, so it was quite natural for me, when I came back to academia, to combine what I had done as a practicing lawyer with my philosophical background.
“Unlike moral philosophy, tort law is entrenched in institutions that have power and that require people to do concrete things like pay money, or take various precautions when they are engaging in risky conduct, and so on. On the other hand, tort law is like moral philosophy in that it involves a lot of basic moral notions, such as the notion of duty or the notion of a right or a wrong.”
Your book Torts: Responsibilities and Redress is a textbook for law students. Does it have a specific approach to teaching torts?
“In most respects, it aims to cover the field in a thorough and engaging way, as most casebooks try to do. However, it would be fair to say that it has a certain perspective on tort law. For decades, the most common understanding among torts professors was that tort law was an indirect way of getting compensation to accident victims, through private people suing each other. More recently, however, the most influential view of what tort law is about says that, since we can’t trust people to be careful about not injuring others, we essentially penalize them financially. We tell them that whatever the cost of the injuries they inflict on others if they do not behave sufficiently carefully, they will have to swallow those costs themselves. This approach is sometimes referred to as ‘efficient deterrence’ theory.
“The framework used by myself and my co-authors John Goldberg and Anthony Sebok is different from both the compensation-system and efficient-deterrence approaches. Our framework says, look, when somebody sues another person because they say he or she is a terrible surgeon—‘You cut into this organ negligently and now I am suffering’—the person is trying to have the surgeon held accountable for having wrongfully injured him or her. A suit has the effect of deterring people, but that is not its essence: Its essence is really that a person is using the courts to have another person held responsible for what he or she did. Our book presents the subject in a way that displays this perspective.”
Can you discuss a specific case that encompasses that ethical essence of tort law, as judges might see it?
“There was a New York State Court of Appeals case, Lauer v. City of New York, about ten years ago. The parents of a three-year old boy brought him to the ER because he was gasping for breath. The child was sent home, but died the next day. The police became involved after the medical examiner’s report showed that the death was caused by severe trauma to the head. The father denied having done such a thing. Still, the DA indicted him, his wife left him, and he lost his job—all the while denying his guilt.
“About 17 months later, a New York newspaper broke a story indicating that the child’s death wasn’t caused by a blow to the head and that the medical examiner was aware of the father’s innocence. It turned out that the medical examiner had performed a second autopsy, and had discovered that they had erred in their first autopsy and that the boy’s death had been caused by an aneurysm. But the medical examiner’s office had never revealed their error to the police or the public. So the father sued the medical examiner’s office for the tort of defamation, or libel, and for the infliction of emotional distress.
“In tort we have a duty to other people to be vigilant not to cause physical injury or property damages, but frequently courts find that ‘emotional distress’ claims are far too broad: Life is full of emotional distress. Here, however, the plaintiff argued that this was an extraordinary set of circumstances—since the medical examiner had knowledge of the harm that would be caused if he didn’t correct the error, he really had a duty to be vigilant of that harm and to (publicly) correct his error.
“The New York Court of Appeals ruled for the medical examiner’s office in this case. It said the issue was not one of ‘duty,’ but rather it was a policy judgment about whether governmental offices should be embroiled in litigation when there is a mistake. I disagree. My view is that part of the reason we have a common law of torts is so that we can recognize responsibilities at a more fine-grained level and be sensitive to the moral dimensions of various kinds of cases. When the law uses the word ‘duty’ in tort law, it means to demand of judges that they think about whether this is a context in which there is a special obligation of care.”
What is your opinion on the recent case of Snyder v. Phelps, in which the Supreme Court upheld picketers’ rights to disrupt the funeral of a fallen soldier?
“I was not terribly surprised by the decision, but I was disappointed. My view is that the free speech argument on the side of the picketers wasn’t as good as the argument on the side of the family of the fallen soldier. Judges accept a fairly small number of scenarios where one person could sue another for intentionally inflicting emotional distress. Historically, the best-established cases were where someone interfered with a family’s attempt to grieve or mourn a spouse, a child, or a sibling.
“Our society has a well entrenched recognition that the kind of emotional vulnerability associated with grieving a close family member is extraordinary. Our morality has recognized it, our social norms have recognized it, and the law has recognized it as a special pocket for being able to sue for emotional distress.
“The Court’s decision is simplistic because it doesn’t take on the task of understanding our society’s special respect for those who are grieving and it doesn’t take into account how opportunistic and egregious the defendants’ conduct was.”
As an ethics chair, what would you say is the “lawyer’s ethical dilemma?”
“I teach a course on lawyers and responsibility. Lawyers have to be candid and truthful not only with their own clients but also with courts and adversaries. Obviously, our system is an adversarial one and a lawyer’s job is to put the best face on his/her client’s claim. But you have to possess a good-faith reasonable belief in the merits of your client’s case, if you are going to be asserting it.”