Defense Against Outrage and the Perils of Parasitic Torts

Two prominent narratives in tort law scholarshipaddress the increasing recognition of claims for loss ofemotional tranquility and the expanding privilege to useforce in defense of self and others. This Article explores apuzzle in tort law that challenges these traditionalaccounts. Can force be used to defend against intentionalextreme or outrageous conduct threatening a person withsevere emotional distress? The answer in the case law andarticulated doctrine appears to be "no." The law permitsthe use of force to protect dignitary interests, in the case ofoffensive battery and assault, but seems to deny the use offorce to protect against IED.

No basis for this distinctionappears in the leading theoretical accounts of tort law-economics, corrective justice, and civil recourse theory.Rather, the basis of the rules seems to be the childhoodmaxim, "Sticks and stones. .," without strong theoreticalor policy justification.Two implications arise. First, the law continues toprivilege physical security above emotional well-being.Second, although it is arguably the most successful "new"tort of the twentieth century, lIED remains a tort whoseboundaries are murky and whose place in tort doctrine isunclear. The parasitic nature of IED has complicated theeffort to build clear doctrine around all but the mostessential elements of the claim.