Erica Rachel Goldberg
Harvard Law School
July 21, 2014
Connecticut Law Review, (2015) Forthcoming
The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on a hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries.
This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology, and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law.
Number of Pages in PDF File: 68
Date posted: July 23, 2014 ; Last revised: October 7, 2014