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At the start of each academic year in 1L Torts, I introduce students to 20th-century legal scholar Roscoe Pound and his observation that tort law tends in a socially evolving society to redress ever more abstract injury, as if on a trajectory from physical trauma to mere hurt feelings (YouTube). I want students to see that it's important to put the brakes on this trend at some point, lest tort law so invade the province of everyday life that we refrain from social interaction for fear of liability. Much of the study of tort law is about this braking, drawing the line.
It was alarming, then, to hear a discussion on the National Public Radio (NPR) podcast It's Been a Minute describing what many people regard as "cheating" in a relationship, in tandem with the view that cheating can be equated with abuse. Host Brittany Luse related results of a YouGov poll: "55% of Americans believe flirting with another person is cheating. 64% say the same about holding hands with another person, and 73% say the same about forming an intense emotional attachment to another person."
Luse further explained, "Some people are claiming that cheating is abuse. There's actually a whole community of people that have been cheated on who call themselves Chump Nation, and some of them are really adamant about this interpretation." The Cut writer Kathryn Jezer-Morton suggested that from this perspective, which she did not endorse, cheating would effect a legal wrong, specifically, a breach of contract—or, I would suggest, in the absence of a contract, a tort.
Jezer-Morton aired my reaction to the proposition: "I don't feel comfortable equating cheating with abuse, personally." Just as overuse of tort law can strangle social and economic relationships, freelance culture journalist Shannon Keating worked out the unintended consequences:
I mean, I think one quite negative effect of [sensitivity to cheating] being so hyper-present in dating culture is that, if you think about how easy it is for someone to feel slighted and then go post about it online, there's high stakes just going into a relationship when you don't necessarily have the presumption of privacy. Or of being able to trust that you'll be able to work something out with your partner directly and give each other grace for tough stuff.
I get that an errant lustful look is adultery in the heart (Matthew 5:28). But I'm not sure that's a workable rule for legal liability. And in a romantic relationship, truth is essential, and grace is divine. In any event, and decidedly unlike physical abuse or the most extreme cases of infliction of emotional distress, these are matters of social norms and morality, not law.
On the moral front, meanwhile, I worry that mistrust is becoming endemic in our culture in more than just intimate relationships. I suspect that growth in mistrust is fueled by politicians' strategic sewing of hate.
In this vein, I was struck by a radio ad that aired incessantly as I was driving around Nevada for two weeks this summer with few channels to choose from. The ad was for a new kids' shoe by Skechers. Skechers online describes the new shoes and their special feature: "Each pair is designed with a secure, hidden pocket under the insole that perfectly fits most locator tags, so you can always know where their favorite shoes are."
So there are distressing implications if we are living in a society in which kids need to LoJack their $60 shoes. But you might've already worked out that missing shoes is not really the problem. My suspicions were aroused when, toward the end of the radio ad, the announcer said that the hidden compartment in the shoes would be undetectable to the wearer.
The website doesn't mention the "Find My Child" take on the "Find My Skechers" feature. But radio ad or not, the functionality has not been lost on consumers (e.g., Instagram reviewer, KTLA).
I don't put myself on any pedestal for parenting. It was a trial-and-error adventure. Sometimes I did well, sometimes not so much. And we did once flirt with phone tracking software. But we were all upfront about it. I don't remember ever thinking that secret surveillance would build healthy family dynamics.
Maybe kids victimized by Find My Skechers should be able to sue their parents for data protection infringement.
That should make the world better.
