Fair Notice As A Defense To Novel Tort Liability

• Published date: 01 April 2024
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Class Actions
• Law Firm: Butler Snow LLP
• Author: Mr P. Thomas Distanislao

Thanks to our former colleague Mitch Morris for his contributions to the article.

I. Introduction

A core principle of our Constitutional Republic is that the Government cannot "deprive any person of life, liberty, or property, without due process of law[.]"¹ Notably, the Framers did not distinguish between these ideals, treating property as worthy of protection as life and liberty.²

That said, few have commented on the intersection of the Federal Constitution's Due Process Clauses and tort law.³ Amorphous by design, tort law generally has remained flexible enough to meet the established fact patterns that arise under it while retaining enough rigidity to allow for predictability. That system has endeavored to secure the safeguards against unjust deprivations of property enshrined in the Due Process Clauses.

However, these once established principles are now in flux. Over the last three decades, the United States has seen a rise in class action lawsuits and other aggregated litigation, along with the radical expansion of novel tort theories that bear little resemblance to those that traditionally existed at common law. Businesses and other would-be defendants now face an increasing likelihood that they may be held liable for past conduct that was not clearly (or even conceivably) tortious at the time it occurred.

An example of this trend is the Supreme Court's 2019 decision in Air & Liquid Systems Corp. v. DeVries,⁴ where it announced a new test under which manufacturers may be retroactively liable for failing to warn end consumers about other companies' products decades before such a duty was imposed.⁵ As dissenting Justice Gorsuch insightfully observed, the majority's holding poses a "fair notice problem."⁶ It puts manufacturers "at risk of being held responsible retrospectively for failing to warn about other people's products . . . a duty they could not have anticipated then and one they cannot discharge now."⁷

So what are businesses and others to do? Stand at risk of being held responsible for failing to comply with duties they could not have anticipated and cannot travel back in time to discharge? Or, as Justice Gorsuch questioned, "can [they] only pay"?⁸

The answer is that defendants must find new ways to defend against novel theories of tort liability. As a result, we recommend freshly assessing what due process requires to try to curb tort law's seemingly inexorable expansion.

"Fair notice" is not a novel concept'it lies at the very heart of our justice system. It mandates "fundamental fairness" at all times, in all circumstances, and for all defendants, regardless of context,⁹ and without exception for corporate manufacturer defendants or cases with sympathetic plaintiffs.¹⁰

We begin by analyzing the historical foundations of fair notice. We then consider the Supreme Court's current conception and application of fair notice principles, focusing on the Due Process Clauses' limitations for punitive and aggregated statutory damages, before addressing how those considerations bear on tort liability as a whole.

II. The Historical Concept of Fair Notice

It is beyond dispute that "[f]rom the inception of Western culture, fair notice has been recognized as an essential element of the rule of law."¹¹ Indeed, from the Code of Ur-Nammu to the Laws of Eshnunna, the Code of Lipit-Ishtar, the Code of Hammurabi, and, perhaps most famously, the Ten Commandments, the written law has been enshrined as a cornerstone of equity inherent to our collective sense of justice. Indeed, written law not only provides notice to the governed, but also imposes significant restraints on those governing.

Thus, fair notice principles have always extended to the civil realm, promoting social efficiency by allowing the public to order its behavior to an established legal framework.¹² Put simply, people and corporate entities are more confident taking the business risks that drive our economy when they are sure they know, and are complying with, the applicable laws.¹³

In framing the historical underpinnings of fair notice, we begin with Ancient Greece. There, in the 7th century B.C., the Athenians were governed by an oral law often manipulated by the aristocracy. In response, the people demanded publication of the laws to prevent those in power from changing the rules to suit their own needs. Though they may have gotten more than they bargained for in the infamous Draconian Constitution, its enactment resulted in the law being housed at a central location, accessible to anyone, and freely available to be read by the literate public. This development marks one of the earliest examples of the citizenry demanding a written law to provide boundaries to those in power. Indeed, the principle encapsulated in the maxim nulla poena sine lege'or "no punishment without law"' "dates from the ancient Greeks" and is among the most "widely held value-judgment[s] in the entire history of human thought."¹⁴

Of course, publication was not ubiquitous. In the early days of English justice, for example, there was no promulgation at all. Crime and tort were indistinct concepts, neither of which was governed by written law.¹⁵ As a...