Steven Schaus has posted to SSRN Harm, Relationships, and the Contours of Liability for Emotional Distress. The abstract provides:
In Reasonableness and Risk, Greg Keating argues that the law of torts is ”preoccupied” with harm — with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships — and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed — a serious setback to my interests — a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question for Keating’s view and suggest an answer: Harm to one spouse can impair the other spouse’s agency, I’ll suggest, because their relationship essentially involves a shared project. A harm to one can be a harm to the other, then, insofar as it frustrates the life project they share. I will suggest, finally, that a view of this kind can help us better understand the contours of liability for emotional distress too.