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15 Harv. Negot. L. Rev. 195
Harvard Negotiation Law Review
Spring 2010
Article
TORT LITIGATION BETWEEN SPOUSES: LET’S MEET SOMEWHERE IN THE MIDDLE
Benjamin Shmuelia1
Copyright (c) 2010 Harvard Negotiation Law Review; Benjamin Shmueli
Abstract
In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the
family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The
present essay will address this question by examining the possibility of establishing a delicate balance between the
individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and the
family-collectivist approach, which attempts to determine what is best for the family as a whole and is concerned that legal
intervention in the family’s affairs may be more detrimental than beneficial.
Although this essay explores a claim under tort law, rather than under family law, and although the claim at issue may be
consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. Moreover, since
these are particularly charged, emotional claims, the real remedy desired may at times not *196 be financial compensation at
all, but some other remedy: an emotional one, which the laws cannot provide, but which might be provided specifically
through extrajudicial proceedings. Nonetheless, requiring the parties to take part in such a proceeding under the auspices of
the court (e.g., mandatory mediation) is itself problematic, since such a proceeding is supposed to be voluntary.
I propose a model that balances the individualistic approach and the family approach. This model will present a theoretical
and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts, while
also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes.
Contents
II.
I. Introduction
To Recognize or to Block? Considerations for and Against Recognition of Tort Litigation
Between Spouses
A. The Individualistic Approach vs. the Family Approach
B. The Individualistic Approach: Considerations in Favor of In-Principle Recognition
1. The Individualistic Approach: Introduction
2. The Goals of Tort Law in the Eyes of the Individualistic Approach
a. Compensation
b. Corrective Justice
c. Distributive Justice
d. Deterrence
3. Additional Support for the Individualistic Approach
C. The Family Approach: Considerations Against In-Principle Recognition
1. The Family Approach: Introduction
2. Family Harmony as an Argument for Blocking Intrafamilial Claims
3. Fear of Insurance Fraud
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III.
IV.
4. The Floodgates Argument and the Slippery Slope
5. The Goals of Tort Law in the Eyes of the Family Approach
a. Compensation
b. Corrective Justice
c. Distributive Justice
d. Deterrence
The Desirable Situation: Theory and Practice
A. The Proposal: An Intermediate Approach Combining Individualistic and Family
Approaches
B. The Preliminary Stage: Recognition of Tort Claims That Pose No Risk to Family
Harmony
C. Dispute Resolution: Mandatory Participation in Mediation
1. Handling of Familial Torts
2. Why Mediation is Appropriate for Intrafamilial Claims
3. The Court’s Ability to Mandate Mediation
4. Mandatory Mediation in Intrafamilial Claims
5. Mediation and the Goals of Tort Law
6. The Intermediate Proposal and Mediation
D. The Trial Phase
1. Emotional Remedies
2. Expanded Interpretation of the De Minimis Defense
3. The Use of Aggravated and Punitive Damages in Cases of Intentional and Severe Torts
Conclusion
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*197 I. Introduction
Tort litigation against a family member is an instrument that exists in various countries for various causes of action. For
example, children may sue their parents for neglect, physical assault, or sexual assault. Spouses may file tort claims against
each other for abuse, assault, defamation, property damage, breach of promise to marry, breach of visitation rights, and even
damages when one spouse kidnaps the children while both spouses have shared custody.
Such suits are tort claims rather than family law claims, and in general they have no connection with family law--they do not
interact with it, critique it, or attempt to change it. Nevertheless, despite their label as purely tort claims, these suits differ
from the typical *198 tort claim in a significant respect: there are members of the same family on both sides of the lawsuit.
This essay does not set out to analyze various justifications for specific torts, nor will it delve into the multitude of torts that
one spouse may commit against the other. The main purpose of this essay is to discuss an initial framework that is both
theoretical and practical as to whether tort litigation against a family member should be permitted. The essay will deal with
the following questions, in keeping with modern tort law: Should there be special treatment for tort litigation against a
spouse? Should such litigation be restricted? Or should such cases be heard in the same manner as tort litigation between two
strangers?1
The debate over the fate of tort litigation between family members has historically been waged between two distinct
ideologies: the individualistic approach and the family-collectivist approach. I would like to offer a nuanced treatment of the
issue by examining the possibility of establishing a delicate balance between these two ideologies. The individualistic
approach focuses on realizing the autonomy of the individual to sue for harm done to him. This approach recognizes tort law
as an appropriate mechanism for realizing the rights of an individual who has been harmed by his or her spouse. This
approach also views tort law as an important tool for the empowerment of the victim, since without a remedy the power gap
between the victim and the tortfeasor is perpetuated. The family approach, on the other hand, attempts to determine what is
best for the family as a whole. It posits that an intrafamilial claim cannot be treated like any other claim, and that procedural
and fundamental adjustments need to be made in light of the family relationship.
This essay presents an intermediate approach between the two competing ideologies, an approach that grants that
intrafamilial litigation is generally tortious in nature (and not part of family law) but that also reflects special sensitivity to the
reality that there are spouses on both sides of the case. The essay will try to explain why an intermediate approach would be
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appropriate to serve the needs of tort litigation between family members. In turn, it will attempt to *199 balance a worldview
that sees the family as a collection of individuals--whose disputes should be resolved as part of private law--and a worldview
that sees the family as a unique sphere, in which legal intervention may at times be more detrimental than beneficial. The aim
of this essay is to provide an initial framework for the question of whether family tort litigation should be blocked from or
heard by the courts.
Part II of this essay will analyze factors both in favor of and against accepting tort litigation between spouses. Part II will also
demonstrate the need for progress toward a more balanced, intermediate model. Part III will discuss the intermediate
approach as a desirable model to entertain tort litigation between family members. It will present a compromise solution
between the individualistic approach and the family approach in which spousal tort litigation is permitted but faces stringent
restrictions at various stages in the ligitation. Part III will also make clear that although the intermediate approach places
more weight on considerations in favor of allowing intrafamilial claims, it emphasizes that such claims should be hear only in
limited cases; permitting some intrafamilial tort claims does not amount to blanket recognition for all such claims.
Part IV will attempt to outline a legal policy that can later serve as the basis for a more extensive discussion of the specific
elements and defenses of torts (negligence, assault and battery, defamation, etc.) that one spouse may commit against the
other.
II. To Recognize or to Block? Considerations for and Against Recognition of Tort Litigation Between Spouses
A. The Individualistic Approach vs. the Family Approach
Tort litigation against a spouse does not exist in a vacuum. Numerous factors must be taken into account when determining
whether to permit such litigation, including whether the court is the appropriate institution for making a determination in
intrafamilial torts or whether it would be more appropriate to leave this area outside the realm of legal intervention.
The issue of justiciability usually hinges on which one of the two sometimes contradictory approaches--the individualistic
approach *200 and the family approach (which derives from the collectivist approach)--predominates within legal
institutions.2 The individualistic approach treats the individual as autonomous and separate from the group to which he
belongs. The goal of this approach is to allow the individual to realize his autonomy. 3 It is based on the worldview that the
individual has a unique independence and that although the individual may belong to several groups simultaneously (family,
community, population sector, tribe, etc.), no group defines his complete identity or his behavior. This approach dispenses
with society’s traditional perception of the family as a whole unit; instead, each member of the family unit is perceived as an
individual. In turn, if an individual is harmed through a tort, the individualist approach would allow him to sue the tortfeasor
even if the latter is a close relative.
The family approach, on the other hand, focuses on the collective--in the case at stake, the family unit--and attempts to
determine in a paternalistic way what is best for the family as a whole.4 This approach espouses the idea of acknowledging
the dynamic that exists within the family unit, in order to allow it to conduct itself in a natural and free manner. The family
approach’s main concern is that legal intervention may harm the family’s affairs, autonomy, and privacy. 5 This approach sees
the restoration of sanctity, privacy, and *201 harmony to the family unit as a supreme value that legal intervention may harm
or impair. It is based on the worldview that the family unit constitutes an important unit--perhaps the most important
unit--within society.6 According to this approach, the family unit is a separate, unique sphere, in whose affairs one ought not
to intervene, even if the rights of the individual harmed by a tort must be set aside for the benefit of the family as a whole.7
The justiciability of intrafamilial torts depends on the implications and variations of these two approaches. Should
intrafamilial torts follow the goals of regular tort law as an expression of the individualistic approach, which seeks to
re-establish the status quo ante by requiring that the tortfeasor repair the damage done to the injured party through
compensation? Or should the court, using the family approach, attempt to bring the litigating couple back to a state of
domestic harmony, even at the expense of the rights of the injured party? To answer these questions, the following
paragraphs will analyze the justifications for the use of the individualistic approach and the family approach to grant or
restrict judicial access for familial torts.
B. The Individualistic Approach: Considerations in Favor of In-Principle Recognition
1. The Individualistic Approach: Introduction
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From the individualistic standpoint, every individual has rights of his own; these rights are personal and separate from those
of his spouse or other family members. Therefore, a person is entitled to realize his right to sue any person, including his
spouse, for harm he *202 has suffered. The individualistic perspective is inconsistent with restricting a spouse’s right to sue
on the ground that a suit could be contrary to the best interests of the other spouse or the family unit. This approach rejects
the view that negative externalities for the rest of the family unit should be a basis for restricting judicial access for familial
torts. Indeed, the approach embodies the view that even if some legal claims affect others who are not direct parties to the
dispute, society would still generally protect the individual’s right to sue.
For proponents of the individualistic approach, a person who was the victim of a tort should not be in a worse position simply
because the tortfeasor is his spouse. On the contrary, in such a case, the proponents of the approach would not only prefer
that the law not block such claims, but they would also prefer that the law encourage the claims, or at least not stand in their
way. If one spouse injures the other spouse, the tortfeasor should be held accountable for his actions in the civil sphere, as the
tortfeasor has violated the victimized spouse’s right to autonomy and has breached a unique duty of trust. 8
2. The Goals of Tort Law in the Eyes of the Individualistic Approach
In-principle recognition of tort claims by one spouse against the other is also consistent with the general goals of tort law:
compensation, corrective justice, distributive justice, and deterrence. 9
a. Compensation
The goal of compensation is to ensure that the tortfeasor pays the monetary equivalent of the injury suffered by the victim. If
one spouse has carried out a tort against the other, then the tortfeasor must provide full compensation to the victim as an
expression of the *203 need to return the situation to the status quo ante.10 Monetary compensation can enable the victim to
improve his situation by funding physical or psychological therapy in line with the type of harm suffered. In addition to
resuming the status quo, monetary compensation also has a psychological, symbolic, and educational effect, as
reimbursement to the victim forces the tortfeasor to assist in the recovery and rehabilitative process and signifies the
unacceptability of the tort. For example, a dependent woman who is harmed by her husband (e.g., verbally or physically
abused) can liberate herself from dependence on her husband by means of monetary compensation.11
b. Corrective Justice
The goal of corrective justice is to repair damage done in the past, focusing on the tortfeasor and the victim and ignoring any
matter or factor external to the incident.12 The tortfeasor himself must rectify the injustice that he has caused to the victim, to
the extent of the damage caused.
Corrective justice is different from the goal of compensation because underlying corrective justice is the principle of fault and
retribution against the tortfeasor. Corrective justice holds that it is specifically the tortfeasor who must pay for the damages
he caused to the victim. On the contrary, a compensation-based regime may not be fault-based and may require a third party
to pay, even if that third party is not at fault, as long as the victim receives compensation for *204 his injury. In the family
context, however, corrective justice and compensation may often overlap, because it is likely either that the tortfeasor is not
insured or that any insurance would not cover the event. Thus, although corrective justice and compensation are conceptually
different, because third-party insurance is unlikely to play a role in familial torts, under these two goals of tort law the
tortfeasor will almost always pay the victim for the damages.
The corrective justice principles of fault and retribution are closely intertwined with the individualistic approach, as they both
emphasize rectifying violations of individual rights. Corrective justice supports the realization of individual rights as it forces
the tortfeasor, who is the person responsible for the breach of trust, to bear the burden for the breach. The individual approach
falls in line with corrective justice in holding that instead of society bearing the cost of compensation and treatment for the
victim,13 violators of individual rights should compensate the victims regardless of the negative externalities such
compensation places on the family.14
Corrective justice is of significant relevance in tort litigation against a spouse, because compensation serves as a public
declaration that the action within the family was indeed tortious and wrong and should be rectified by the tortfeasor, who
should bear responsibility for his actions. 15 Under corrective justice, the focus remains solely on the two parties to the tort,
even though the conduct of the proceedings or the remedy awarded may have a negative effect on both the plaintiff’s and the
defendant’s family (just as there may be a negative effect on each individual family in a case between two strangers). Many
argue that conducting such a case in the name of corrective justice may impair the harmony of the family; however, the very
act of filing a suit against a spouse indicates that family harmony no longer exists. In general, spouses do not hasten to
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destroy family *205 harmony,16 and if a spouse files a tort claim it is indicative that the relationship has already significantly
deteriorated.17 Furthermore, the filing of a tort claim under the perspective of corrective justice may serve as leverage in an
attempt to rebuild the family. A successful tort suit compels the tortfeasor to cease his tortious behavior and take
responsibility for his actions. Moreover, restricting access to the courts for familial torts would be inconsistent with the goals
of corrective justice. Sanctioning non-compensation of the victim would allow the tortfeasor to avoid responsibility, would
not settle the injustice suffered by the victim, and would allow the victim to become a burden on society, obliging society to
compensate the victim.
Under the traditional perspective, family members are perceived as a single economic unit, making it impossible for one
family member to sue another; such a suit would be the akin to someone taking money from his left pocket and putting it into
his right.18 In line with the goal of corrective justice, however, the traditional perspective is irrelevant; corrective justice is
only concerned with two individuals, one of whom harmed the other. Hence, when courts adjudicate familial torts, they must
consider whether there is room to rectify the damage and whether any remedy is warranted--that and nothing more. This view
of corrective justice is fully consistent with the individualistic approach because the existence of a common family purse
would be insufficient to prevent the realization of a lawful right. Corrective justice views individuals as unique and is not
concerned with negative externalities or the impact on the collective unit.
In addition, the perception of the family as a single economic unit is perhaps outdated because modern families are more
complex from an economic point of view. In contemporary family settings, many couples hold separate accounts or sign
pre-nuptial agreements, live apart and are married only “on paper,” or are temporarily or permanently separated. Thus, the
perception of the family as a single economic unit should not result in a refusal to adjudicate the lawsuit. If a tort has been
committed, the damage must be corrected and compensation must be awarded. Under the corrective justice perspective,
judges should not concern themselves with whether the victim chooses to continue to participate in the common household
with the *206 tortfeasor, effectively rendering the court’s judgment meaningless. Instead, judges must ensure that a suit be
adjudicated in principle, even if the victim does not collect the compensation in practice.
Corrective justice also favors tortious adjudication when a tort claim is brought subsequent to the dissolution of a
relationship, even if the tort was caused accidentally at a time when the couple was happily together. In such a situation, the
fundamental right to rectify a previous injustice still exists, even though the victim chose not to sue for damages when the tort
occurred. Since the right to sue exists upon occurrence of the tort rather than the time of the dispute, it has the potential to
make couples excessively suspicious or petty. Thus, the courts may need to consider the application of general principles,
such as a good faith doctrine, to bar claims that are raised because the relationship is in disarray--e.g., a spouse suing for a
forgotten tort that was actually forgiven at the time. 19
c. Distributive Justice
Distributive justice connects all potential parties--not just the tortfeasor and victim, as in the goal of corrective justice--to the
distribution of wealth, resources, and benefits in society in order to advance societal goals.20 The standpoint is sectoral, but of
course this societal goal affects the status of single tortfeasors and victims, after their classification to sectors. In this context,
distributive justice considers various sectors of the population, such as rich vs. poor, weak vs. strong, the simple man vs. the
large organization, women vs. men, and children vs. adults. Considering several different segments of the population may
certainly be relevant in tort litigation between spouses, especially if the tortfeasor and the victim belong to different groups,
e.g., the strong and weak groups. In many cases, the spouse who suffered injury at the hands of the other spouse is in a
clearly inferior position from the perspective of sectoral belonging. For example, consider the situation of battered women,
where the husband holds physical or economic power over the wife. An individualistic approach implements the
plaintiff-victim’s human right to file a suit to allow the victim to attain a position of power against the aggressor *207 family
member.21 Increased consideration of the weaker sector is thus consistent with distributive justice. Even if one accepts the
principle of the family unit having certain autonomy, the stronger members within the family--traditionally the husband or
the parents--must be made aware that there are limits to the tortious actions that they may inflict on the weaker family
members. Adjudicating a tort claim and awarding compensation in appropriate cases may balance the gap that exists between
those sectors.
On the surface, tort litigation between spouses involves no interaction between tort law and family law. 22 Tort claims against
a spouse are often submitted for non-monetary damages. Family law, on the other hand, deals primarily with monetary
aspects, such as maintenance payments and division of property. Family law rarely deals with the inequalities that are the
result of a tort involving non-monetary harm. Here, tort law (particularly the goal of distributive *208 justice) fills the gap.
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Tort law can complete the picture in those instances where family law provides no response. One should not accept the
perspective that, since the tort lawsuit is only a part of the overall dispute, its solution should be left to the realm of family
law. This last point does not apply only to distributive justice or to cases of clear power differences between the parties;
nonetheless, the point is particularly significant in instances where such differences are an element of the overall dispute
between the couple.
d. Deterrence
In-principle recognition of a tort claim by one spouse for harm caused by the other spouse is also consistent with the desire to
deter the commission of torts within the family unit. Permitting litigation and compensation, in appropriate cases, will serve
as a deterrent both for the specific spouse being sued and for other potential tortfeasors. 23 Blocking these claims is thus
contrary to the goal of deterrence.
Legal recognition of such claims sends the message that even if a tort is committed within the intimate framework of the
family unit, the law will intervene, liability will be imposed, and the tortfeasors will bear the cost of their behavior. 24 Tort
law sends the message--both to the specific tortfeasor and to potential tortfeasors--that there are certain values that society is
not willing to compromise. Imposing liability warns the tortfeasor that if the behavior exhibited within the boundaries of the
intimate family unit is not consistent with societal values, there will be appropriate legal sanctions.
The deterrence provided by tort law is particularly important in the context of family disputes as family law moves to a
no-fault model. Family law, especially in the framework of financial disputes, makes an effort to divide the couple’s assets
fairly and equally based on clear, fixed criteria. It often divides the assets without reference *209 to who is to blame for the
disolution of the family unit (e.g., through the infidelity of one of the parties)--that is, without considering deterrence. In
familial disputes, as family law strays away from considerations of deterrence, tort law’s deterrence gains significance as it
fills the gap and promotes behavior that does not cause physical and mental harm to the spouse. Deterrence is important for
torts within the family framework because familial torts constitute a breach of the spouse’s trust and respect that stands in
opposition to natural law. Hence, based on the goal of deterrence, as a matter of policy it would be appropriate not to block
family tort claims.
A tort, particularly an ongoing one, within the four walls of the family home has been symbolically compared to a kind of
false imprisonment that severely infringes the victim’s liberty and makes his life unbearable in the place that is considered to
be his castle. In certain instances, since the tortfeasor and the victim still live under the same roof (even if they no longer
share a common purse and in effect are no longer living as a couple), such torts become so extensive and ongoing that there is
an urgent need to rectify them. If the couple is living under the same roof and sharing a common purse, moving money from
one pocket to another does not have much significance from an economic perspective. In those instances it may be necessary
to identify some other remedy, apart from monetary compensation, or to lean toward extrajudicial solutions (something that
will be expanded upon below). If, however, the parties maintain separate accounts, compensation may still have value.
Permitting a tort claim between spouses is consistent with the economic approach to torts, even though the economic
argument is interested more in the question who should win the case, rather than why to hear it from the outset. According to
the economic theory of torts, the party who is best able to avoid the harm should be held liable. This permits optimal
deterrence. In most cases, the tortfeasor is himself the cheapest and most efficient avoider of harm, if not the only avoider.25
Were it not for his actions, no harm would have been done. In many cases, avoiding harm has no cost--avoiding violence,
avoiding emotional abuse, etc.--and so the precautions are significantly less costly than the expectancy of bodily or emotional
harm. According to the economic theory of torts, therefore, the tortfeasor should be held liable. 26
*210 If intrafamilial tort claims are blocked, tortfeasors will not be held liable for their actions and the system will not
maintain the optimal level of deterrence. This will have negative externalities on society, which might be forced to fund
physical or psychological treatment for the victims, as well as on the victims themselves.
One general criticism of the economic approach to torts is that insurance distorts individuals’ motivations and is not always
consistent with the goal of deterrence. This criticism is not as relevant in intrafamilial tort suits, because insurance will not
likely be available to compensate the victim. Insurance usually applies to unintentional torts; often it is not possible to insure
against intentional torts such as assault and battery, abuse, or intentional destruction of property. 27 An insurance contract that
did purport to insure such events may be void as against public policy. Moreover, one of the true remedies often sought in
tort claims against a family member-- revenge--is of course much more relevant when there is no intermediate party, such as
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an employee or insurer, paying instead of the tortfeasor.
3. Additional Support for the Individualistic Approach
There are additional policy arguments that support the individualistic approach. For example, if spousal tort claims were not
granted access to the courts, it would effectively make this area of law nonjusticiable. According to the proponents of the
individualistic approach, creating an area without legal intervention would encourage the tortious activity, which would
perpetuate the power gap between the victim and the tortfeasor. 28 Frances Olsen notes that, at times, judicial non-intervention
in the existing situation--for example, not legislating family laws beyond those that already exist--creates internal
contradiction and disharmony. The contradiction exists because, although the state refuses to recognize intrafamilial tort
claims and effectively establishes immunity against such claims, the *211 state nonetheless intervenes in family disputes for
some of the very same acts and responds to would-be tortious conduct through the enforcement of criminal law. 29 The state
would act more consistently if it rendered all claims justiciable, even (or perhaps especially) within the family unit and not
only in criminal proceedings.
Legal recognition intrafamilial torts will neither flood the court with such suits nor create an incentive for the increased
submission of tort claims.30 Spouses are not often eager to sue each other in court over torts. On the contrary, spouses will
initially seek alternative ways of resolving their dispute. In sum, there are weighty arguments in favor of recognizing suits
brought by one spouse against the other.
C. The Family Approach: Considerations Against In-Principle Recognition
1. The Family Approach: Introduction
According to the family approach, when one spouse sues the other in tort, more is at stake than merely the right of the
individual to sue. An appraisal of the merit of familial tort litigation, under the approach, should incorporate what is best for
the family unit as a whole. Taken to its extreme, the family approach supports blanket exclusion of familial torts--or at the
least a serious restriction of such litigation--and supports immunity for the spouse being sued.
In traditional common law, the doctrine of parental immunity against intrafamilial suits governed both suits by children
against a parent (particularly in the United States) and suits between two spouses (in both the United States and England). To
understand the rationale behind the family approach, it is important to understand the evolution of the family unit--from
Biblical times onward--and its transformation through the evolution of the common law.
The rationale for immunity from intrafamilial torts in common law stems from the perception that the husband and wife are a
single entity, or one person, and a person cannot carry out a tort against himself. The source of this view is the Biblical verse,
“Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh,”31 which
was interpreted as one person in law. The view that a married couple was only one person under the law in effect entitled the
husband to the wife’s services, property, and *212 earnings, in return for the obligation to provide for her and to pay her
debts (even those incurred prior to the marriage). Under this traditional view, the wife lacked the right to sue (or be sued)
independently during the marriage; this right was merged with that of the husband such that neither of them could sue the
other.32 In 1962, however, England abolished such immunity, and the law began to treat spouses like two unmarried persons
rather than a single legal entity. This development may be ascribed to the increasing influence of the individualistic approach,
as it is derived from personal and human rights principles, feminism, promotion of women’s status in society, and the
development of the right to sue in tort. Still, the rationale behind forbidding intrafamilial torts has been preserved to a certain
extent. English legislators permitted the courts, in a somewhat paternalistic step, to issue a stay of proceedings in certain
cases between spouses out of a desire to preserve the wholeness of the family unit. 33
In American law, spousal immunity derived initially from a similar reasoning that considered the husband and wife a single
unit.34 Full immunity was gradually abolished in most American states in the beginning of the 20th century, particularly
following the enactment of Married Women’s Property Acts and the Emancipation Acts in the 1940s. These Acts granted
women property rights as well as the ability to sue in tort for infringement of those rights (e.g., economic remuneration for
damage to property or trespass). These Acts removed the initial justification for immunity based on a marriage creating a
joint person and led to the independence of the wife. 35 *213 However, when the Acts were enacted, suits for negligence,
intentional torts, and personal injury torts (such as assault and battery, intentional infliction of emotional distress, and other
torts not directed at property) were not yet recognized between spouses.36
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Intrafamilial suits based on negligent and even intentional torts were barred in the United States during the 19th century
based on the fundamental belief that domestic harmony, tranquility and harmony should be preserved at any cost. 37 Courts
believed that tort litigation could hasten divorce, separation, and the dissolution of the family unit, whether such litigation
derived from negligent or intentional behavior.38
For proponents of family harmony, the happiness of the couple, their children, and the family as a whole was of public
importance.39 This belief provided the impetus for blocking familial torts in the case *214 of married couples, particularly if
they were living together under a single roof,40 and particularly if they had children. The family harmony view posits that tort
law should focus not only on the individualistic rights of the plaintiff, but also on the happiness of the children, who could be
harmed as an outcome of filing a tort. The children have an interest that their parents, even if separated, maintain a cordial
relationship. Moreover, the domestic harmony argument exists even when the couple has no children, simply out of a desire
to promote family life and to enhance even the slightest chance that the couple could reunite. 41
Some states have made significant improvements with regard to claims for bodily harm and other torts that occurred while
the parties were still a couple. Many courts have ruled that there is no necessary connection between blocking such suits and
the harmony of the family unit, and that it is inappropriate to block personal claims while accepting property claims. 42 The
development of the mechanism for submitting tort claims in general has also contributed to this view. 43 Indeed, the
Restatement now no longer differentiates among types of suits, stating, “A husband or wife is not immune from tort liability
to the other solely by reason of (the marital) relationship.”44 Although the Restatement does not bar tort suits between
spouses, it does imply that suits against spouses should nevertheless be treated differently from those against non-relatives.45
Some states have abolished *215 the immunity completely as a result of this standard 46 and have rejected the claim that only
the legislature can repeal the immunity.47
Today, in about half of the states in the United States, the doctrine of spousal immunity to tortious suits has been completely
abolished, either through judicial rulings or by legislation. The reasoning for the abolition has been mainly constitutional,
since maintaining the immunity “would amount to a repudiation of the constitutional guarantee of equal protection under the
law.”48 However, most American courts do not easily accept such suits, and some states have not completely severed the
connection to the concept of immunity.49 Before imposing liability, states still typically respect the “subtle ebb and flow of
married life.”50 To respect the “ebb and flow,” some states have established that the revocation of immunity applied only in
certain circumstances that do not threaten family harmony, such as traffic accidents, cooking mishaps, and other domestic
accidents.51 Some states have revoked immunity in cases where one spouse is no *216 longer living.52 Others have cancelled
immunity only in cases of intentional or outrageous torts, as opposed to negligent torts, based on the assumption that the tort
itself, rather than the lawsuit, has destroyed the fabric of the family relationship. 53
In the states where immunity officially exists,54 judicial decisions have created exceptions. Some courts have carved out
exceptions for torts carried out prior to the marriage (a problematic exception in regard to couples who are not officially
married).55 *217 Others permit suits after divorce or separation, even if the tort had occurred previously. 56 In some
jurisdictions, immunity is unavailable in instances in which it is clear that no harmony exists in the spousal relationship. 57
Similarly, some states do not allow claims that do not involve intentional harm, claims where the damage is intangible or
purely economic, and claims that are not accompanied by bodily harm. 58
Thus, the key rationale that underlies common law immunity is that recognition of tort litigation between spouses endangers
the harmony of the family unit, which is against society’s interest in the completeness of the family unit. In a more refined
version of the argument, such claims should be barred only when there is a chance of restoring family harmony. The family
approach does not want to bar all intrafamilial claims, but it wants to make sure that such claims benefit the family as a whole
if they are heard. By withdrawing such claims from judicial treatment when there is a chance of restoring tranquility to the
family, there is a legitimate, appropriate preference to the interest of the family as a whole, over the narrow interest of one of
the individual family members.59 The assumption inherent in this view is that spouses do not always correctly assess the
implications of their legal actions when they choose to sue each other in tort; they only see the short-term remedy and not the
risk to their relationship as a whole.60
States differ in their legal treatment of this issue. Although there is greater legal intervention today in relations between
spouses than in the past,61 the intervention has yet to garner universal approval. The current situation in the United States
regarding familial torts remains precariously lodged between complete immunity and an absolute abrogation of the
immunity.62
*218 2. Family Harmony as an Argument for Blocking Intrafamilial Claims
The argument for family harmony is rather broad, consisting of a cluster of similar rationales that give credence to the idea
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that tort litigation between spouses should not be recognized. These rationales, which comprise the foundations of the family
approach,63 include: the justifiability of the claims and the appropriateness of the legal discussion in these claims; the
complexity of the claims and the need to hear them along with divorce proceedings; the assumption of the risk doctrine as a
basis for blocking the claims; the need to deal with the claims in an extra-judicial forum; and the fear that the tortfeasor will
have access to the compensation monies that he has paid.
One school of thought believes that claims within the family unit are not justiciable due to their sensitive nature and the
inappropriateness of discussing family relationships in a public forum. 64 Lord Atkin explains the difficulty of judging
families and the need for independence of the family unit in a rather creative way: “The parties themselves are advocates,
judges, courts, sheriff’s officers and reporter.”65 In contrast to Lord Atkin, some draw a distinction and say that even if such
relationships are justiciable in principle, they are not appropriate for legal-tort discussion given their nature.66 The underlying
intimacy of such relationships is inconsistent with the normal concepts of negligence and strict liability that underlie tort
law.67 The legal treatment of these issues should remain either within the sphere of family and divorce law or within the
public sphere, where such issues should be dealt with using penal law, under which it is the state that conducts the
proceedings as a result of an offense against societal norms. Immunity can also be justified by the desire to grant privacy to
the family unit and the unwillingness (rather than *219 the inability) to intervene legally in the personal and intimate
relations therein.68
Another school of thought believes that these claims should be blocked because intrafamilial disputes are more complex than
the specific tort the plaintiff wishes to litigate and are generally a symptom of a broader family problem. 69 Therefore, it
would be more practical to join the tort claim to the divorce proceedings, if such proceedings are in progress, which would
lead to savings in the cost and duration of litigation. 70 Those who oppose such a step argue that it may lead to delays in
dealing with important decisions, such as child custody, and that it combines substantive and procedural issues that should be
treated differently.71 (This view differs from the individualistic approach with respect to the goal of distributive justice, under
which tort law was seen as completing the picture of the dispute as a whole.)
An additional argument proposes that these torts should be blocked based on the common law defense of assumption of
risk.72 According to this argument, adult spouses who have willingly entered into a binding relationship must have evaluated
the risk of being exposed to slight assaults or minor instances of negligence within the family, even if the couple had not
explicitly consented to the occurrence of such incidents. 73 Taking the argument to its extreme, one may even argue that a
battered wife could be considered as having willingly endangered herself, or that her own contributory negligence led to her
situation, as she did not take action and leave her abusive *220 husband. This argument, however, is obviously problematic
and inappropriate, because even if we accept contributory negligence as the guiding standard, the line for barring intrafamilial
torts should be that between intentional and unintentional torts. Assumption of the risk does not make sense when dealing
with intentional torts; it cannot be argued that spouses have evaluated the risk of being exposed to intentional torts. 74
An alternative to the legal system, which would not have such a negative effect on family harmony, is to refer intrafamilial
tort claims to an alternative forum, such as counseling or pastoral services, particularly when there is a chance for the
restoration of domestic harmony.75 Compared to litigation, extrajudicial proceedings are perceived as more natural and
accessible for the family unit. Because the availability of litigation would minimize the use of these alternative proceedings,
it would be better for the family if such claims were not justiciable. 76
Finally, opponents of intrafamilial torts are also concerned that the tortfeasor-spouse will ultimately have access to the
compensation monies he has paid. However, concern over the tortfeasor’s access to compensation monies cannot be
remedied by preventing the right to sue. Even if the tortfeasor does have access to the money, such access may not be a sign
of the tortfeasor aggressively seizing control of the money, but rather a sign of reconciliation between the parties. 77
Furthermore, if the parties are no longer living together and no longer share a common purse, the chances of the tortfeasor
gaining access to the compensation monies are low. Thus, although a tortfeasor’s access to the compensation monies is of
great concern for intrafamilial torts, because this access could be mitigated in several ways, access to compensation monies
cannot be a self-sustaining reason to block intrafamilial torts.
*221 3. Fear of Insurance Fraud
There are other arguments, aside from family harmony, that support blocking tort claims and granting immunity from
litigation. One consideration is the possibility of insurance fraud. Commentators and courts fear that members of the same
family would submit fictitious claims that would enrich the family at the expense of the insurance companies. 78 Employers or
others who often bear the brunt of compensation in tort claims may be similarly defrauded by such claims. 79 Yet the courts
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accept direct claims against employers, insurers, or anyone else that may be vicariously liable for the spouse’s tort, rather
than blocking such claims, based on the rationale that the immunity is personal and that “[o]thers may not hide behind the
skirts of his immunity.”80 At the same time, the assumption that “[n]o wife would want to sue her husband for a negligent
tort except as a raid on an insurance company”81 certainly no longer holds. Moreover, it seems that the courts are well
enough equipped to examine this issue; the insurance companies have an effective tool in cross-examination82 and the costs
of litigation that insurance companies expend trying these cases would ultimately be reflected in the cost of the premiums
paid by the consumers. Conditions established by insurance companies that include an interspousal exemption have been
rejected in some courts in the United States as contrary to public policy.83 It has also been determined that concern for
insurance fraud should not serve to block a lawful right to sue 84 and that there *222 is nothing unique in this rationale in
regard to family members.85 The question of the existence of insurance coverage and the effect of litigation on the insurance
cannot have relevance for the determination of liability itself.86 Furthermore, the typical tort claims for violence, abuse, rape,
neglect, or defamation are generally not covered by insurance. Nevertheless, many states have granted immunity in cases
covered by insurance, a move that has drawn extensive criticism from scholars. 87
4. The Floodgates Argument and the Slippery Slope
Some courts refuse to recognize spousal tort claims for fear that accepting them would breach the floodgates and lead to a
deluge of such suits, which could clog the judicial system and hinder its effectiveness. 88 This concern is particularly real if it
would be possible to sue over minor issues. It is unclear whether society would herald the regulation of family relations
through the courts. However, this concern is not realistic. In most cases of familial torts, the parties would consider
alternative channels for resolving the problem prior to turning to the courts. 89 The search for alternative dispute resolution
avenues would greatly reduce the number of suits filed over inconsequential grounds, although such claims would not be
totally unexpected.
Those who favor immunity also cite a slippery slope argument, positing that even if judicial rulings limit spousal tort claims
to the most severe instances, the chance remains that suits would be filed against family members in less serious instances,
allowing many unforeseen issues that may not be justiciable to enter the legal realm.
Nonetheless, these two arguments need not be given significant weight within the totality of considerations, nor do they on
their own justify rejecting intrafamilial claims. There is no evidence that permitting tort litigation in the family framework
has led to the courts being flooded with such cases. Even if there were an increase, it would not clog the system, because in
many instances of claims against a family member, the injuries are purely emotional rather than monetary or physical. The
problem of proving emotional harm *223 and proving causation between the emotional harm and the tortious behavior serves
as a natural filter; it ensures that many claims would not be accepted. Therefore, it is not clear that the floodgates would be
breached.90
5. The Goals of Tort Law in the Eyes of the Family Approach
On the surface, it seems that the goals of tort law are met by the individualistic approach. But the same goals can also be met
by the family approach. In the following sections, compensation, corrective justice, distributive justice, and deterrence will be
dealt with from the family approach perspective.
a. Compensation
Although blocking claims would also block court-awarded compensation, this situation does not pose a significant problem
for the family approach, because compensation is often neither desired nor beneficial. According to general principles of tort
law, the spouse who has been harmed should receive monetary compensation for the harm done. However, when discussing
highly charged claims on the basis of a long-term relationship, at times the plaintiff may be interested in a remedy that is
beyond the power of the law to provide. This limitation often prevents the court from uncovering the true wishes of the
plaintiff and awarding him the remedy that he truly seeks. When individuals sue family members in tort and ask the courts to
award compensation, sometimes this is the appropriate remedy, but at other times it is the remedy sought only for lack of any
other option. An extrajudicial proceeding such as therapy or mediation may be of assistance where tort law is limited in its
ability to order the remedy that is truly desired.
b. Corrective Justice
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In terms of the goal of corrective justice, the tortfeasor himself must compensate the victim for the full damages. On the
surface, strict adherence to this goal does not leave any alternative to the individualistic track, and it is the tortfeasor (and not
other mechanisms) who must pay. But when the same family is on both sides of the divide, repairing the injustice done to the
victim-plaintiff may seriously damage family harmony, possibly leading to the destruction of the family. One cannot
realistically look at a dispute between two *224 family members through a purely corrective justice perspective without
feeling compassion towards the components of the family unit and the destruction that may be caused to the family as a
whole.
The relationship between spouses is a long-term one, by virtue of both nature and the law, and it is based on the idea of
intimacy. Therefore, an intrafamilial tort has aspects similar to relational contracts, 91 analysis of which should influence our
analysis in a number of aspects. First, a tort suit is meant to conclude a dispute between the spouses, which does not
necessarily imply the termination of their ongoing relationship. Second, the dispute often influences third parties such as the
couple’s children,92 even if the parties themselves have terminated or will be terminating their relationship. The traditional
perception of corrective justice is less suitable in intrafamilial torts, since one has to consider other interests: those of the
family as a whole and those of the children. Thus, corrective justice should be interpreted with more flexibility in the
intramilial tort context.
A strict corrective justice viewpoint must be softened in familial torts because compensation for the tort paid to the plaintiff
may come at the expense of the welfare of other family members--e.g., in cases where the father who is paying child support
sues the mother. In addition, the plaintiff may be perceived as the enemy of the family *225 and responsible for its collapse
and not as a legitimate plaintiff whose rights have been infringed; the children, for example, might view the plaintiff in such a
negative light. Ostensibly, in this respect, the idea of family harmony no longer seems important, especially if the couple is
divorced and the family unit no longer exists. This idea of harmony seems to become even more irrelevant if the suit was
filed for some issue that arose subsequent to the couple’s separation, such as breach of visitation rights or defamation.
However, it is still important that a minimal level of proper relations between the couple be maintained, even if only to
ensure a “smooth” handover of the children between visits or participation of both parents in the children’s lives. Meanwhile,
care must clearly be taken not to use the welfare of the child as leverage in the suit. If the other family members’ interests are
not taken into account, then even when the plaintiff and defendant are no longer together, the influence on the other family
members may be severe and destructive, particularly when there is still a chance to salvage the couple’s relationship.
Some believe that tort proceedings are easier on the family than criminal proceedings. 93 However, since a tort claim is
voluntary, unlike a criminal proceeding which is initiated and controlled by the state, the plaintiff retains the choice to submit
the tort or to withdraw it. This fact brings the plaintiff and the defendant into open opposition. In the case of intrafamilial
torts, because the parties are (or were) a couple, this dispute is more charged than other civil suits. A legal proceeding that
commences with the submission of a legal claim invites direct confrontation, which includes mutual recriminations,
examination of witnesses who are well known to both parties, the use of sensitive material obtained by private investigators,
and more. Given that in certain circumstances the parties will continue to reside under the same roof throughout the case and
even thereafter, the situation may become unbearable from the moment the claim is served. Hence, a legal treatment that is
insufficiently delicate, because it focuses solely on the need to “coldly” rectify the injustice between the tortfeasor spouse and
the plaintiff spouse, without any consideration of the children and even other family members, may result in the destruction
of the whole family unit. In other words, the theory of corrective justice must be relaxed when dealing with intrafamilial
torts. Considering pure corrective justice without taking *226 into account the interests of other family members is almost
impossible and definitely inappropriate. The rationale for corrective justice must be more flexible and adjusted to the familial
circumstances.
Moreover, when individuals enter into the framework of a family relationship, there is an understanding or agreement--if not
express, then at least by implication--that not every issue between them ought to be litigated, even if technically a tort has
been committed. Not every insult, verbal slight, curse, vulgarity, or even some threat arising from the tensions of daily life
should be grounds for suing a family member in tort. 94 This provides further support for the idea that the goal of corrective
justice is not fully compatible with intrafamilial tort suits.
c. Distributive Justice
Because distributive justice (unlike corrective justice) deals with sectors, it deals with parties other than those immediately
related to the tort. Therefore, it is possible that the children who may be harmed from the claim will be considered as weak
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parties for the sake of distributive justice, and their status will be taken into account when dealing with the claim or deciding
to block or to reject it or to refer it to extra-judicial proceedings.95 The familial approach to tort litigation best allows the
system to meet this distributive justice goal of considering all relevant parties’ interests.
d. Deterrence
As with the goal of corrective justice, it is also questionable whether the goal of deterrence is totally appropriate in
intrafamilial tort litigation. In torts that are caused by pure emotion or impulse, it is not altogether clear that the individual
will be deterred by the possibility of the future imposition of tort liability. Nor it is clear that imposing liability would have an
effect on potential tortfeasors, particularly since such torts come about from hard-to-control urges or prior disputes. Given
that even criminal law lacks the desired deterrent effect on those who are motivated by extreme feelings, it is not clear how
tort law might be successful. Even the fear of monetary loss may not be effective when it comes to highly charged or tense
disputes. As noted above, there are instances in which the economic *227 approach, inherent in optimal deterrence, may not
be appropriate for dealing with spousal disputes, particularly if the spouses are living under the same roof and sharing the
housekeeping. Transfer of money from one to the other when the purse is held in common cannot bring about an increase in
the aggregate welfare and is therefore meaningless.96
Overall, it is clear that some of the goals of tort law correlate to the justifications for the family approach, whereas others
should be interpreted with more flexibility due to the delicate structure of the family and the fact that the lawsuit may
influence family members other than just the plaintiff and defendant.
III. The Desirable Situation: Theory and Practice
A. The Proposal: An Intermediate Approach Combining Individualistic and Family Approaches
The discussion in the previous section illustrates that the rationales both for and against acceptance of spousal tort claims are
credible. Although weighty arguments were presented on both sides, the central consideration against recognition of spousal
torts--family harmony--has contracted over time. As family harmony arguments constricted, the rationales for allowing
judicial determination of familial torts based on the individualistic approach have had a greater impact, expanding notions
such as individual autonomy, personal rights, and the right to sue in tort.
Thus, we return to the fundamental question of how the judicial system should determine whether to restrict access or to
permit judicial intervention in familial tort litigation. Modern law should establish a balance between the family approach and
the individualistic approach and should avoid extremes in either direction. Even if a suit in tort could disturb family harmony
or could be more harmful than helpful, blanket immunity from litigation is inappropriate. 97 *228 When a tort suit is initiated,
family harmony has often fully dissipated, and even if some family harmony lingers, the individual’s right to sue should not
be ignored--despite the delicate framework of intrafamilial relations. Preservation of the family unit should not be considered
such a supreme and noncompensatory value that invocation of family harmony blocks tort claims under all circumstances.
Such a claim could be a symptom of a broader dispute between the spouses, and it could also serve as a legitimate tool in a
power struggle between the parties. The litigation should be allowed, even if the couple has not yet separated and even if
preservation of family harmony is still possible.
By not dealing with tort claims, family law does not provide a response to the physical or psychological harm that is the
result of a spouse’s aggressive attitude. It is natural that tort law should step into this vacuum and stop these injuries, mostly
non-monetary in nature, from engulfing the overall interspousal dispute. Tort law should evolve with society and break its
connection with the rationale for common law immunity by eradicating the treatment of the husband and wife as a single
legal entity. As the doctrine breaks away from common law immunity and moves towards the individualistic approach to
human rights, a clear change in norms will become necessary. Tortious litigation, while embracing greater autonomy, should
retain some function for the rationale of family harmony. The balance between the approaches will be reflected by limitations
on blanket acceptance of intrafamilial torts rooted in the family approach’s arguments against recognition of such claims. In
other words, the starting point needs to be the individualistic approach’s fundamental recognition of the tort claim, as
opposed to its restriction. The limits to such recognition, on substantive and procedural grounds, will derive from the
rationales underlying the family approach, primarily the issue of family harmony. The limitations will ensure that recognition
of these claims will not become over-inclusive and will not apply to all cases.
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Paving a path between the individualistic approach and the family approach requires caution. The intermediate approach
needs to identify members of the family unit as individuals who have rights, who may sue one another, and who do not enjoy
absolute immunity. At the same time, the approach needs to preserve the perception that the family as a unit should be treated
uniquely. There is no significant reason why this approach would not work both in theory and in practice.
*229 Various intermediate approaches have already been presented in other contexts. Bush and Folger present a relational
worldview in regard to mediation.98 They hold that an approach that focuses solely on the individual and his separateness is
inappropriate. They also find inappropriate the collectivist-communitarian approach--which is similar to our family
approach--that emphasizes connection and devotion, because the approach annuls the rights of the individual and overstates
the importance of the collective.99 The relational worldview does not reject either of these approaches, but it avoids applying
them independently.100 It sees the approach of separateness--in effect, the individualistic approach--as one dimension of a
more complex totality, animated by the understanding that human nature does not focus solely on separate personal interests,
but also on the reactions and attitudes to the society to which it belongs. According to this worldview, man is simultaneously
separate and connected, and to function within society one needs to integrate separateness and belonging. 101 Such integration
will come about through finding points of contact between the two approaches, each of which is lacking in balance. 102
The relational worldview attempts to maintain the dichotomy between the individual and the collective, with all its
ambivalence. It seems that this intermediate approach raised by Bush and Folger in regard to mediation is particularly
appropriate to civil disputes within the family unit. There is room, under this approach, for tort litigation against a spouse, but
there is also room for balance and restriction. On the one hand, a great deal of criticism has been expressed regarding
granting rights to the family as a unit, since such rights perpetuate power gaps within the unit (particularly those between
strong and weak, with the latter generally meaning women and children).103 Thus, adopting the family approach on its own,
without individualistic considerations, may encourage torts within the family unit and allow the tortfeasor, generally the
stronger individual, to persist with his tortious acts. On the other hand, it is inadvisable to fully adopt an approach that grants
family members full independent rights toward one another, similar to rights between *230 strangers. Family members still
share a certain measure of collectivism. As Karst once stated, “‘we’ exist as something beyond ‘you’ and ‘me.”’104 Indeed,
some hold that the language of rights, which focuses on the private interests of the members of the family, is not appropriate
for family life and may harm the intimacy and love within this unit.105 A common critique of the individualistic approach
holds that these rights are less necessary when there is love and an atmosphere of happiness. However, a tort within the
family framework would indicate a lack of happiness, and would certainly indicate the need to herald individual rights
because of a rift or crisis within the family unit.106 In the end, the truth may be found somewhere in the middle, since even
when the family is in crisis, there is a certain importance to the family unit’s harmony. Therefore, when there is a chance of
healing the rifts, enforcing a legal remedy against the infringement of an individual right may not be best for the individuals
or the family as a whole.
Scholars believe that there is also room for an intermediate worldview when discussing the family. Kagitcibasi recommends a
structure that expresses the connection between the individual and the collective. Such a structure would encompass culture,
family structure, the values of membership, and the mutual relationships within the family. This structure would be more
complex than simply analyzing the individual or the collective alone. 107 Minow and Shanely take a similar path; they suggest
that members of a family should be viewed as possessing independent rights that are nonetheless inseparable from their
family relationships.108
These approaches should be translated into reality in the tort claim context by moving them from the general, declarative
level to the specific, practical level. This essay proposes a model that is based on an intermediate approach that is neither
absolutely individualistic nor completely based on the family approach. The intermediate *231 theory presented below will
be the focus of the proposed solution at the three different stages of tort litigation between spouses. The solution will relate to
each of the three phases of the litigation: the preliminary stage, the stage in which an attempt is made to resolve the dispute
peacefully after the claim has been submitted, and the trial phase itself. I propose that such litigation not be blocked, based on
the individualistic approach. However, I recommend that it be treated delicately, with an attempt to involve extrajudicial
solutions in the legal process based on a moderate application of the family approach. The solutions proposed at the various
stages will form a theoretical and practical framework for discussing tort litigation between spouses, within which it will be
possible to add, at a later stage, more information beyond the scope of the present essay.
The intermediate proposal begins with the individualistic approach, which sees the tort claim as a realization of the right of
the individual to sue. The intermediate solution will be formulated by restricting blanket recognition of intrafamilial torts, and
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by differentiating them from other tort claims. The family approach will limit the individualistic approach in a more moderate
way than currently practiced in some American states, in which tort claims are blocked altogether.
B. The Preliminary Stage: Recognition of Tort Claims That Pose No Risk to Family Harmony
Tort litigation between spouses should be permitted when such a suit would in no way harm the family unit. Suits should be
permitted, for example, when the legal structure of the suit--with one spouse suing the other--is just a formality, when in
reality the claim is intended against a third party, like an insurer or employer. 109 Since the intent is to sue a third party, there
is no risk to the autonomy of the family. This would be the case, for example, if one spouse negligently injured the other,
with no malicious intent, and the family hopes to recover from an insurance company. It would also be the case if any
damages caused by the tortfeasor spouse would *232 be paid by that spouse’s employer. In such cases, there is not an actual,
direct conflict between family members, despite the legal structure of the suit. 110 Such litigation does not lead to the
destruction of the family, but rather provides economic aid to the family unit. There is no reason not to allow claims that are
only formally against the family member who carried out the tort. Indeed, in this instance, in order to reach the situation in
which a third party pays compensation to the spouse, it becomes necessary to hold liable the family member who carried out
the tort. But if the interests of the two parties are to win that money from that third party, there is no impingement on family
harmony. As noted above, there are still concerns about insurance fraud, but such concerns should not serve as grounds to
block spousal tort claims altogether.
Tort claims between spouses should also be accepted when one spouse is deceased, as again there is no risk to family
harmony. Claims should be permitted against or by an estate, particularly if doing so does not harm the surviving spouse and
children (for example, if the main beneficiaries of the estate are third parties who are not related or who are only distantly
related). In this situation there are also very few problems of direct confrontation that may harm the family as a whole, since
one or both of the parties to the problematic confrontation are no longer alive, and the claim does not bring other close
relatives into conflict.
Litigation between former spouses who are completely separated and have no children should also be permitted, because the
family harmony argument would have no significance.
In sum, part of the intermediate approach involves sifting out claims in which the family harmony justification does not
apply, such as claims against a third party, an estate, or a former spouse, and fully permitting litigation in such cases.
C. Dispute Resolution: Mandatory Participation in Mediation
1. Handling of Familial Torts
The situations described above, in which family harmony is not at risk, are not the only situation in which tort litigation
would be permitted under this intermediate model. There are other situations, which do implicate family harmony, in which a
tort may still be filed. In such situations, an intermediate approach would treat such torts *233 differently from non-familial
torts. In order to construct an intermediate approach at the stage at which a tort claim against a family member has already
been submitted, two assumptions are needed. The first is that the claim should be heard rather than blocked. The second is
that the court should play an active role in an attempt to restore harmony and tranquility to the relationship between the
parties. The court can restore harmony either through the legal proceedings themselves or by sending the parties to an
extrajudicial proceeding. Such a step may have advantages for all kinds of litigation, both from a substantive perspective 111
and from the perspective of its effectiveness.112 But it is especially relevant when dealing with family disputes.
Classic claims between spouses are fundamentally different from claims between two strangers, even if they are based on
traditional tort grounds. The limitations of the law do not allow the court to uncover the plaintiff’s real desires and to order
the real remedy the plaintiff seeks. Although many plaintiffs seek monetary relief when claims are highly charged and
emotional and involve an ongoing relationship, a financial reward may not be the only form of relief sought. 113 For many
plaintiffs, the law serves as a platform for expressing arguments and as a mechanism to obtain remedies such as *234
retribution, punishment, revenge, reconciliation, or regret. The court’s institutional inability to offer the desired remedy
means that from the outset, the plaintiff is forced to request the usual remedies provided in tort law, foremost among them
being monetary compensation.
In cases where the real remedy sought is something other than compensation and where tort litigation is not suitable for
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resolving the dispute, there are two potential solutions. One solution is an increased effort by the judges to aid the parties in
resolving the dispute by means of a compromise or settlement. However, this option is not always possible; judges cannot
work miracles with feuding parties.
Another possible solution is to resolve the dispute through non-judicial means. The judge could send the parties to mediation,
counseling, or therapy. Mediation is a process in which the two parties, with the assistance of a neutral mediator,
systematically isolate issues within their dispute and create options or consider alternatives that could lead to an agreement
that serves the needs of both parties. This is a subjective, reconciliatory process, as opposed to legal proceedings, which are
objective processes based on rivalry and abstract laws.114
This solution is adapted here as part of the intermediate approach for handling intrafamilial tort claims. Under the
intermediate approach, parties would be forced to go to two sessions of mediation, after which the parties, the mediator, or
the judge could request that the claim go back before the judge. This proposal, as well as its theoretical and empirical
underpinnings, are described in more detail below.
2. Why Mediation is Appropriate for Intrafamilial Claims
Mediation is designed to be a just, fair, and speedy process of dispute resolution. It typically has several stages: first, the
parties present their stories and the mediator assists them in reaching agreement; then the parties submit the agreement to
their attorneys and the attorneys formulate the agreement in legal terms for submission to the court; and finally, the court
gives the mediation agreement the force of a legal judgment. 115
*235 The adversarial approach encourages parties to blame each other, and consequently is less appropriate than mediation
for intrafamilial disputes. In instances of domestic violence, the adversarial approach may even exacerbate the violence,
making mediation even more appropriate.116 Because the parties are directly involved in mediation, the outcome is based
more on their true interests and less on their legal rights. In fact, mediation focuses on the problem, whereas litigation focuses
on mutual confrontation. Mediation proceedings help to preserve intrafamilial relationships, without intensifying the rivalry
between the parties.117 Unlike the adversarial approach, which focuses on attributing blame for the events of the past,
mediation focuses on the future and serves as a source of empowerment for both parties, encouraging them to express their
individual needs in order to reach mutual agreement. 118 In addition, mediation empowers victims by encouraging them to
take an active role in formulating the agreement.119 Furthermore, in mediation, the parties meet voluntarily in the presence of
a neutral mediator and in a confidential proceeding. The process encourages mutual agreement through concessions on both
sides.120
Mediation may bring to the surface the true desires of the parties, while not limiting them to the remedies provided by legal
proceedings. The special non-adversarial ambiance may help generate a solution to the problem, even if it does not lead to
lasting domestic harmony. If there are children in the family, termination of the dispute in a reasonable manner may influence
them positively. The mediation proceeding also allows recognition of intangible interests, which are often the real motives
for the dispute. In the case of a dispute between spouses, mediation thus expands the spectrum of possible solutions. In
addition, when the couple participates in creating the solution, they are more likely to reach an optimal solution--and they are
statistically more likely to comply with it.121
The main problems with mediation are the high cost of private mediators and the difficultly of dragging the tortfeasor family
member into such a proceeding. Mediation settlements are voluntary, based on the desire of the two parties to recognize that
a problem *236 exists and their willingness to solve the problem and reach an agreement. A reluctant spouse can derail the
process.
Mediation is not a magic solution for all family disputes, tortious or non-tortious. There are concerns over the conduct of the
proceedings. For example, the proceeding may exacerbate existing power gaps between the litigants.122 Mediation is
particularly problematic in instances of domestic violence, as the model of mediation presumes an equal balance of power
between the parties. Domestic violence, on the other hand, shifts the balance of power in favor of the aggressor-spouse by
lessening the other spouse’s feeling of self-worth.123 In addition, where one party’s bargaining power has been damaged, the
mediator’s ability to find a balance between the parties may also be affected. 124 The victim of domestic violence may not
possess the ability to make a decision that is free of coercion, and thus mediation may actually work to his detriment. 125
However, even in instances of domestic violence, if clear boundaries are established and the mediator takes steps to manage
the balance of power, mediation can enhance the victim’s security and serve as a fitting alternative to the courts.
3. The Court’s Ability to Mandate Mediation
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The advantages of mediation proceedings have led both state and federal courts in many states to adopt a kind of
court-referred mandatory mediation proceeding. This process was resisted at first, due to the early 20th century conception
that “[t]he jurisdiction of our courts is established by law, and is not to be diminished, any more than it is to be increased, by
the convention of the parties.”126 Later, however, the system began to recognize the choice of the parties to resolve disputes
by alternative means. The acceptance of alternative forums was gradual, beginning in the 1920s when legislators began to
recognize the limited ability of the courts to promptly and justly consider all disputes. The institution of arbitration appeared
as a *237 practical alternative to litigation in court,127 leading to the enactment of a federal arbitration law in 1925.128
In the 1950s, as the profession of mediation developed, limited judicial use of mediation began as a way to solve minor
disputes in family and criminal matters.129 Alternative dispute resolution (ADR) proceedings gained popularity in the late
1960s as a solution to the overburdened case load in the court system and delays in litigation. 130 Local communities
established neighborhood justice systems as an alternative means of solving disputes between neighbors, between consumers
and sellers, between tenants and landlords, and between family members.131 In addition, various organizations across the
United States established committees to examine the orderly application of ADR proceedings within the legal system. 132 In
the 1970s, the process acquired additional impetus. 1976 saw the Pound Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice. This conference included the first serious discussion of the possibility of applying ADR
within the American legal system.133 Many see it as the event that launched the modern ADR movement. 134 Over the next
few decades, the use of ADR has grown. Even the Supreme Court has begun to display sympathy toward the idea. 135
Early jurists saw ADR as a way of reducing the court’s docket. Litigators saw it as a mechanism that reduced costs and
allowed for quicker determination of issues that did not raise new legal questions. Social lawyers rejoiced at the opportunity
to resolve the disputes of those who could not afford ordinary litigation. 136
*238 Today, court-referred ADR exists in the United States on both the federal and state levels. Rule 16 of the Federal Rules
of Civil Procedure, enacted in 1938 and amended a number of times since, regulates the Pretrial Conference, which allows
the court to require the parties’ attorneys or unrepresented parties to appear for one or more hearings in a court-referred
proceeding.137 The purposes of the Pretrial Conference are set forth in paragraph (a):
Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear
for one or more pretrial conferences for such purposes as:
(1) expediting disposition of the action;
(2) establishing early and continuing control so that the case will not be protracted because of lack of management;
(3) discouraging wasteful pretrial activities;
(4) improving the quality of the trial through more thorough preparation; and
(5) facilitating settlement.138
The rule proceeds to detail various procedures. Rule 16 served as a basis for the first application of mandatory ADR. Federal
courts found in this rule the authority to require the litigants to turn to an ADR process, although the rule did not require them
to reach agreement.139 In 1990, Congress passed the Civil Justice Reform Act,140 which was also a milestone in this area but
which is no longer in effect.141
*239 In 1998, Congress enacted the Alternative Dispute Resolution Act.142 This is today the most comprehensive of all the
laws dealing with the subject. Its purpose was to present innovative ways of solving disputes and advanced methods that
would lead to greater efficiency.143 One of its goals was to reduce the backlog of cases in the federal courts.144 ADR is
defined in the Act as follows:
For purposes of this chapter, an alternative dispute resolution process includes any process or procedure, other than
adjudication by a presiding judge, in which a neutral third party participates to assist in the resolution of issues in
controversy, through processes such as early neutral evaluation, mediation, minitrial, and arbitration as provided in sections
654 through 658.145
The law empowers the federal district courts to refer parties, under local laws, to ADR programs (including mediation, early
neutral evaluation, minitrial, and arbitration) which are to be set up in the states. ADR should be available for all appropriate
instances of civil complaints, with the inappropriate cases excluded from such proceedings following consultation with the
specific bodies listed in the law.146 Parties may be required to participate in mediation or early neutral evaluation. 147 The law
also includes a provision making such proceedings privileged and protecting the privacy of the participants. 148 This provision
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is particularly relevant to mediation because the whole process is directed by a party who is not part of the legal system. 149
The influence of the federal law on the state courts is only indirect. If federal courts limit the use of the ADR statute, the use
of ADR in state courts will likely be limited as well.
In addition to the federal statutes, there are laws in various states that allow the state courts to refer the parties to ADR. In
states including Alabama, Delaware, Florida, Indiana, Louisiana, *240 Maine, Minnesota, Montana, Nevada, and North
Carolina, state legislation allows the courts to require the parties to participate in mediation. 150 Mandatory mediation is
typically used in certain areas of law,151 including family law,152 labor law,153 bankruptcy,154 and medical negligence--but
not tort law in either the general or the family context. 155
4. Mandatory Mediation in Intrafamilial Claims
Mandatory mediation, like mediation in general, has many advantages. It has been suggested that mediation has a positive
influence on society, as it causes society to be more accepting of bargained dispute resolution and to have more faith in the
results.156 Empirical studies indicate that most of the participants in mandatory mediation are more satisfied than those
whose cases were determined in court.157 Studies have also shown that the mandatory nature of mediation has no influence
on the likelihood of reaching agreement; there is almost no difference in rates of settlement between voluntary mediation and
mandatory mediation.158 The parties usually understand that the court, which sends them to mandatory mediation, is in fact
working for their benefit.159 In addition, involvement in the proceedings generally has a positive influence on the parties’
relationship. Mediation is based on the consent of the parties. The adversarial method has the nature of a conflict and as a
result may ultimately leave relations between the parties scarred. Hence, parties who expect to have some future interaction
(something that is *241 obviously very relevant to the issue at hand) may profit from the mediation proceedings, because
these help preserve future relations.160 Indeed, the mediation process requires cooperation and as such may also serve as a
role model for future interactions between the couple, which is particularly important when the couple has children
together.161 Mediation also involves negotiation with concessions and achievements. Each party gives up on what it sees as
less important, in exchange for receiving what it perceives as more important. Unlike the typical legal proceeding, the
outcome of mediation does not yield a “winner” or a “loser,” for each side in a mediation feels that it has achieved
something.162 Moreover, mandatory mediation does not infringe on constitutional rights, because the parties still have the
right to litigate; at most, the right to litigate is merely postponed. 163
However, sending parties to mediation as a mandatory matter may still be problematic or ineffective, since mediation is
supposed to be, at its core, voluntary. Coercion may cause mediation to lose many of its advantages. Moreover, forcing the
parties to attend mediation could cause parties to develop an antagonistic attitude toward the proceeding, due to its being
forced upon them. Both parties may feel that they would fare better in court, as mediation often requires concessions and
compromise. On the surface, the parties, the court, and society have nothing to lose from an attempt at mandatory mediation
or therapy, since the default in any case is a return to litigation. But there may be something to the view that requiring this
extra step could, in certain instances, actually deepen the rift and exacerbate ill feeling between the parties. The extrajudicial
proceeding may uncover or even reinforce power gaps between the parties. The defendant may push for a compromise and be
very influential through rhetoric and body language. 164 Nevertheless, extrajudicial proceedings can counterbalance worries
about power gaps because they can *242 provide the weaker party a balanced forum where such power gaps are obscured or
reversed.165
Success of the mediation process (whether mandatory or voluntary) depends on the willingness of the relevant parties to
participate in the process in a meaningful way.166 There is concern over implicit coercion to compromise; such coercion
undermines the whole purpose of mediation because the agreement is no longer the sole product of the party’s
deliberation.167 Of course, such coercion may also exist in legal proceedings, but it may be more dangerous in mediation
because of the power gaps between the parties and the seeming neutrality of the process. However, mediation can temper
coercive outside influences through promises made by the parties--both in writing and orally--that, although they are required
to participate in the mediation process, they are not required to compromise. In addition, mediators can alleviate outside
influences because they are forced to follow a clear code of ethics under which any undue pressure on the parties would be
forbidden.168
Moreover, there is the concern that mediation under court auspices may become too similar to the legal proceedings
themselves; that is, such mediation will adapt in various ways to the values and *243 norms of the court system. Similarities
in the processes are enhanced by the fact that mediation takes place within court buildings and that the mediation panel often
sends formal notices, collects filing fees, and uses legal language in the mediation framework.169 Another similarity between
the legal system and mediation is the perception that mediators are assessed or assess themselves by the number of files they
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have closed; many litigants perceive that the real purpose of mediation is purely case processing. 170 Some of these problems
can be solved with an approach that gives the mediation process a separate identity. For example, at least part of the
mediation process could be carried out at a location other than the court, and those mediation sessions held in the court
building could take place in a room designed to elicit a warmer feeling. 171 The mediator should encourage flexibility in the
process. Topics for discussion can extend beyond purely legal aspects, and the mediator should encourage the parties to tell a
“human” story regarding their dispute, rather than a legal one. 172
Some argue that the courts have too broad discretion regarding whether to mandate participation in mediation. 173 Because
this feeling is widely held, it is not surprising that proposals made over the years for mandatory mediation have been
perceived as problematic from the perspective of the principles underlying dispute resolution methods, and that some states
still do not have court-referred mandatory mediation. If the process is not done voluntarily and willingly, not only is it
technically difficult to bring the parties to participate in this process, but it is extremely difficult to expect that they will
ultimately reach a satisfactory arrangement. On the other hand, the legal process is not a voluntary one; the defendant must
appear and play his role on the court’s stage. Although an extrajudicial process may be very helpful and has many advantages
compared to the legal process, mediation is not always successful, and no mandatory *244 obligation to participate will alter
the reality that mediation does not have a one-hundred percent success rate.
In addition, one cannot ignore the autonomy of the plaintiff and his right to sue for a legal remedy. In this respect, mandatory
mediation may abridge individual rights. The right to sue is a derivative of the individualistic approach that realizes an
individual’s ability to choose among various options. In our liberal age of human rights, it is problematic to adopt a
paternalistic approach that determines in advance what is good for the plaintiff, by blocking his claim and de facto referring
the claim to an extrajudicial channel where it is uncertain whether his case will be rightfully resolved. Not everyone will
accept the argument that the right to sue has merely been postponed, not extinguished. However, the argument that
mandatory mediation abridges the individual right to sue is overstated, because the result of mediation need not be followed,
and one can always return to litigation.
Thus, a voluntary extrajudicial process may be quite appropriate in family disputes because it allows access to the remedies
in which the victim is really interested. However, there is no way to force the tortfeasor to participate, and even if such a
possibility existed under the law, such a process would not be effective. As opposed to the voluntary extrajudicial process,
the mandatory legal process is one-sided, for only the plaintiff wishes to open proceedings, while the defendant may not. The
legal process is also limited as to what remedies it offers, and it is not sufficiently sensitive to the delicate intrafamilial
relations. Hence, both mandatory mediation and the unfettered legal process are problematic, as is blocking the claim by
creating immunity. Therefore, it is necessary to find an integrated solution that, on the one hand, preserves the possibility of
referral to mediation or therapy, in light of the nature of the relationship (according to the family approach), but that on the
other hand preserves the power of the plaintiff to win a remedy should the extrajudicial process not be successful (in line with
the individualistic approach). The rationale underlying such a proposal must be the preservation of the court’s authority and
oversight of the process. The proposal must, therefore, tread the fine line between the impossibility of forcing the parties to
participate in an extrajudicial proceeding and the problems of a purely legal hearing.
*245 5. Mediation and the Goals of Tort Law
On the surface, the proposal to require mediation appears to belong to the “family” aspect of the dispute and not to the
“tort-individualistic” aspect. However, mediation is not completely outside the goals of tort law. In the specific circumstance
of tort litigation against a spouse where the real remedy sought is not compensation, referring the parties to therapy or
mediation, even as a mandatory step, complements the goals of tort law in a manner that is not artificial. As seen below,
mediation can help achieve the four goals of tort law: compensation, corrective justice, distributive justice, and deterrence.
At first glance, it appears that the goal of compensation is not achieved if the outcome of mediation or therapy is an
agreement without compensation. However, the real remedy sought in many familial tort cases is not necessarily an award of
monetary value. Hence, if the court can bring the parties to an agreement that may not include full compensation or any
monetary compensation at all, but that does include the desired remedy, then mediation would be consistent with the goal of
compensation.174 In such cases, the real compensation for the injustice is not monetary, and the law assists the plaintiff in
obtaining the real remedy that he seeks. Non-monetary forms of compensation are consistent with tort law, which even in
formal legal proceedings sometimes provides other relief such as nuisance abatement orders, injunctions, privacy protection
orders, orders against the distribution of publications that may contain defamatory statements, apologies, retractions, or
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corrections post facto.
Mediation can also achieve corrective justice by providing the injured party with a remedy that meets his true motivation for
the tort suit, monetary or not. The goal of corrective justice does not solely involve money; it has aspects of fairness 175 and
the need for appeasement between the parties.176 The tortfeasor will perhaps have a better understanding of the injustice of
his actions through mediation. The tortfeasor is also more likely to take responsibility for his actions and can promise as part
of the agreement that he will cease his tortious activity (in the case of an ongoing tort) and will *246 contribute to the
family’s harmony. As a result of mediation, the victim may once again enjoy the human dignity that he had lost, improve his
status, increase his relative independence within the family framework, and return to normal family life. The law can not
always bring the two parties to such an outcome. Nevertheless, if the law, within the prescribed limits, can contribute to the
realization of the plaintiff’s true wishes, and if the plaintiff exits the process satisfied, then the injustice has been rectified in
the most successful way.
In addition, the goal of corrective justice should be interpreted more flexibly in intrafamilial disputes to allow consideration
of third parties, such as family members, who are particularly relevant in intrafamilial claims. Where the couple has children,
even if the children are not involved in the dispute, a peaceful conclusion to the dispute in the best possible atmosphere (even
if the outcome is an agreement to separate) will have a positive influence on the children. And mediation best allows for a
solution that takes into account the viewpoints of all parties involved, not merely the plaintiff and defendant, and allows
justice to be done. In fact, it is hard to conceive of corrective justice in such a pure form as to ignore the children, even those
that are not a formal party to the tort suit. The children are influenced by the tort; moreover, the children may influence the
tort, as they are an important part of the family.
Mediation will also be consistent with the goal of distributive justice if the solution benefits the weaker party to the dispute
when there is a power gap.
Mediation, despite its extrajudicial nature, may still be consistent with the goal of deterrence. The tortfeasor will have to
make some concessions and will have to participate in a process that forces him to face up to his wrongs. He will see
firsthand the effect of his torts on the defendant and other family members. The power of deterrence is not solely based on the
reward awarded after the extrajudicial proceeding is completed; rather, the very act of bringing the matter to court and going
through a judicial or extrajudicial process can serve as a deterrent. Such a proceeding may also enlarge the aggregate welfare,
since the tortfeasor will cease carrying out the tort and the victim will cease suffering. If there are children involved, an
extrajudicial settlement that tries to deal with the overall dispute can stop the children from suffering.
6. The Intermediate Proposal and Mediation
It is clear that mediation is in line with the goals of tort law and has the potential to serve as a more productive dispute
resolution *247 method than traditional litigation. Mandatory mediation, however, poses some serious drawbacks due to its
lack of voluntariness. Therefore, an intermediate proposal should incorporate mediation in a way that still preserves the
autonomy of the parties and the court’s control of the suit. In an ideal situation, the spouses would voluntarily choose
mediation. If, however, one spouse files a claim against the other without having tried mediation voluntarily, the intermediate
solution proposed here would allow the court to utilize its discretion to send the couple to mediation as a mandatory step in
their case.177 The judge assigned to the case would determine whether filing the suit and the plaintiff’s desire to litigate are
an expression of an irreparable breach. If he makes such a determination, the tort proceedings should continue along their
normal path. However, if the judge thinks that there is some chance of restoring domestic tranquility and harmony to the
family unit and that there is still some family dynamic in operation (particularly if there are children), 178 the judge would
have the discretion to send the parties to a quasi-mandatory mediation process. Using an active order, the court could send the
parties to mediation prior to hearing the case or in the interim to delay proceedings in the case. In this way, the law will
encourage the use of extrajudicial proceedings, while simultaneously preserving the court’s power to hear the case should the
mediation prove to be ineffective.
The quasi-mandatory mediation process could take many forms. Some have proposed mandatory mediation when it is
important to protect the future relations between the parties; 179 as noted above, however, there are shortcomings to this
compulsion. Some have suggested conducting a semi-mandatory “lightning mediation,” typically lasting no more than one or
two days.180 But lightning mediation does not fully exhibit the potential for a real chance for agreement through dialogue. It
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has also been suggested that the legislature establish a limited possibility for the parties to opt out of the *248 mandatory
mediation as a result of individual circumstances.181 These are desirable solutions that may be suitable for the present case.
Yet, it is possible that an even better solution than these might be proposed.
The proposed approach would necessitate that all the states adopt an arrangement under which the judge, if he determines it
proper, could require the parties to attend two sessions of mediation or professional therapy. The judge would suspend the
proceeding while the ADR sessions were underway, and the confidentiality and immunity of the mediation or therapy
sessions would be preserved. The first session would be a familiarization session, in which the mediator or therapist would
explain the expected process and the possibility of reaching an arrangement outside the court. The second session would
consist of actual mediation or therapy. After those two sessions, the mediator would submit a report to the court. The court
would then decide, based on the wishes of the parties and the opinion of the mediator or therapist, whether there is any reason
to proceed with the extrajudicial process under the supervision of the court. If the extrajudicial process would not provide a
fair alternative resolution, then proceedings would be rescheduled to continue along the legal track, allowing the plaintiff to
fully utilize his right to litigate. Refusal by one of the parties to continue the mediation or therapy process beyond those two
sessions would be enough to bring the proceedings back onto the legal track. In line with convention, refusal to continue in
mediation would not affect the rights of that party in the legal proceedings.
This approach differs from traditional mandatory mediation. It reflects the understanding that the mediation process and the
agreement that comes out of it cannot be imposed, as mediation depends on voluntary participation. Also, the approach
retains the ability for the plaintiff to exercise his legal right to litigate in tort. In addition, the importance of legal counsel for
the parties should not be overlooked, especially if they are entering into an extrajudicial process. If the parties come to this
process prior to filing the statement of claim, in many instances they are not represented, which raises the concern *249 that
the weaker party may be exploited in the extrajudicial process. On the other hand, with mandatory referral to one or two
mediation or therapy sessions after submission of the claim, the parties will likely already be represented. With representation
there is a greater chance that the parties’ wishes will be implemented in the best possible way, within the framework of the
extrajudicial process, in line with the legal advice received from their attorneys regarding their rights under a possible
arrangement. When both parties are represented, the obligation to attend two mediation or therapy sessions is not as coercive,
as the parties’ attorneys can provide counsel regarding the feasibility and advisability of proceeding with the mediation.
Representation ensures that the parties are giving informed consent. It also ensures that the mediation serves a greater
purpose than merely pushing the parties to reestablish domestic harmony while the legal proceedings are suspended.
There may be some resistance to this approach by judges, who may see mandatory mediation as a kind of threat to their
status. However, judges must understand that the law, particularly in intrafamilial tort disputes, is insufficient; the remedies
that it offers may not be appropriate for the dispute in question, and on occasion may deepen the rifts. Because legal remedies
are sometimes inadequate, judges should direct the parties toward a more appropriate forum, such as an extrajudicial process,
to resolve their dispute, without ceding their overall supervision of the case. Judges need to understand that the law cannot
always provide for the plaintiff’s real wishes, particularly in such highly charged cases. And even under a scheme where the
case is sent through the extrajudicial process, the courts remain in a position of power for they never relinquish their ability to
adjudicate the issue. Given its discretion and impression of the case, the court’s ability to require the parties to participate in
at most two extrajudicial process sessions constitutes remote control of the process. Proceedings in the tort litigation are
frozen or suspended during mediation, but they may be reopened at any time following those sessions, should the parties so
desire. Consequently, this proposal provides supervision of the progress of the extrajudicial process and the success of its
various stages. The court has control over the proceedings, since it is the body that decides whether to refer the parties to
these two sessions of mandatory mediation or therapy; if after these sessions one of the parties or both do not desire to
proceed, full control returns to the court. Therefore, the judge does not lose his grip on the issue, but has control over it all the
time.
*250 This portion of the proposed solution, which applies to the stage following the filing of the claim, limits the
individualistic approach through considerations based on the family approach. This solution may be very beneficial in many
cases. However, it is clear that this portion of the solution cannot solve the dilemmas ideally in each and every case. By its
nature, mediation is voluntary. Even though the quasi-mandatory referral of the parties to two mediation or family therapy
sessions is not an affront to the essence of this process, imposing such an obligation may not always help. In severe cases
(such as rape and severe abuse), or in cases of de facto separation, such a process may not be applicable. But this is actually
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one purpose of the extrajudicial process--to sort and separate those instances in which there is a chance of reestablishing
family harmony from those in which there is no such chance. Hence, it seems appropriate to attempt to use this tool, which
would require suitable legislation in all American states, to allow the court the discretion to mandate such a process following
the filing of the claim, when the parties are already represented and acting on the advice of their attorneys. It is true that this
solution may not work in all cases, but on the whole it comprises a necessary balance of the individualistic and family
approaches that can provide significant benefits to many feuding families.
D. The Trial Phase
Once the claim has reached trial, it should for the most part be treated like any other tort claim. But, as has been emphasized
throughout this essay, one cannot ignore the family aspect of the claim, especially at this stage of hearing the case itself. The
framework created here for dealing with familial torts should apply regardless of the specific grounds for individual claims.
In future development, this general framework will need to be augmented by discussion of the specific torts themselves, but
the bulk of the framework is relevant to any tort that may be carried out against a spouse. This section suggests three
innovations for intrafamilial torts in the trial phase: legislation of new remedies of apology and expression of regret; an
interpretation of the de minimis defense that posits that small or insignificant torts for which a reasonable person would not
sue should not be taken into account by the court; and the use of aggravated or punitive damages in appropriate instances.
*251 1. Emotional Remedies
Due to the nature of the torts within the family unit, and the fact that the true remedy sought is often not a traditional legal
remedy, there is room to legislate suitable alternative remedies for familial torts. Such remedies could include an apology or
an expression of regret.182 Judges should be allowed to make a ruling awarding “emotional remedies,” either on their own or
in conjunction with other remedies.
Although emotional remedies seem atypical for the legal system, there are instances, even in claims between strangers, where
the law provides for the award of similar remedies. For example, in many countries, defamation claims can be remedied with
an apology, correction, or retraction.183 This arrangement should be adopted for intrafamilial torts, but not limited to
defamation suits. The court could obligate the defendant to provide such a remedy, orally or in writing, even before the final
judgment in the case. If the court decides to impose compensation on the defendant, the court should consider reducing the
compensation award on account of a sincere apology made by the defendant.
2. Expanded Interpretation of the De Minimis Defense
Another element to the intermediate proposal is the expansion of the de minimis defense in claims between spouses. Such a
defense would come into play to block certain torts committed by one spouse against another--but only the most minor and
insignificant ones; most intrafamilial torts should not be blocked.
The court should use its discretion to filter claims based on the severity of the claim and the chances of restoring family
harmony. In the modern world, entering a spousal relationship, unlike the relationship between children and parents, is
generally voluntary. Therefore, there has to be an understanding that although this intimate relationship is justiciable, not
every incident causing tension--even behavior that might be justiciable had it occurred between strangers--should be the basis
for suing a family member in tort. *252 There are understandings implicit in relations between family members, as well as
express agreements, that can override tort liability184 or at least set a special standard for liability between family
members.185
At the same time, there are certain torts to which a victim cannot reasonably be said to have consented, even in a spousal
relationship. It is clear that a spouse does not consent to being beaten, raped, or abused, 186 and clearly no mitigating criteria
should be applied for these severe intrafamilial cases.187 This argument might also apply at times to other torts,188 such as
minor assaults.189 Even the doctrine of assumption of the risk is not accepted as a defense in instances of intentional behavior
(including cases of assault or intentional infliction of emotional distress), but rather only in instances of negligence. 190 It
would be illogical to utilize this defense or *253 the defense of contributory negligence for an intentional tort that forms the
basis of a battered wife’s tort claim--e.g., barring the spouse’s tort because she did not leave her husband after the abuse.
Such extreme torts are, of course, not the only types of cases that should be heard.
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Nevertheless, outside of intentional or severe torts, there is something to this social rationale, an implied agreement under
which living together means that not everything is justiciable. In my view, this rationale of an implied agreement should lead
to an expanded legal interpretation of the de minimis defense, in regard to spousal claims.
When a tort claim is submitted against a spouse, the court should interpret the claim in view of the de minimis defense. In
entering a spousal relationship, the partners need to understand that they will have to make certain compromises beyond
those customary between two strangers. The couple will also need to accept that there are frustrations that are not suitable for
litigation. Nonetheless, if one spouse sues the other for what appears to be an incident that should not be litigable, like a curse
or an insult, even if a similar incident would be litigable between two non-related individuals, this defense should be applied.
Here, this argument against recognition of such a claim serves only to limit rather than to block the intrafamilial tort.
The de minimis defense is particularly necessary for spouses who sue each other over minor matters. In family relations, the
risk of a frivolous suit is greater in delicate or volatile instances. If the couple is already involved in a bitter divorce dispute, a
spouse may sue in order to gain an advantage or place pressure on the other party, just as people who are involved in a
quarrel may file a complaint with the police in order to make an issue out of some small incident. The added tort in this
instance would be separate from the divorce suit. Such a claim could subvert an agreement in a divorce case, property
settlement, alimony claim, or custody claim. Courts should be sensitive to insignificant claims that are filed for ulterior
motives and should have mechanisms to deal with them.
*254 A spouse should be allowed to let off steam at home without being necessarily exposed to a tort claim. The limit
between a real tort and a de minimis tort in spousal relations should be based on the severity of the action (i.e., the input), the
harm actually caused (i.e., the output),191 the frequency of the action, its nature, and perhaps even its influence on other
members of the family unit. This framework is not a call for recognition only of claims that derive from severe, intentional
torts,192 but simply a call not to block litigation in claims that, on the surface, do not appear insignificant in comparison to the
circumstances of the family unit.193 It accomplishes this goal by expanding use of the de minimis defense in situations that
are insignificant, petty, or an attempt to abuse the legal system. Such an interpretation of the de minimis defense distinguishes
between a *255 “regular” tort claim and a tort claim between spouses and limits the recognition of the latter in a restrained
manner, through considerations based on the family approach.
3. The Use of Aggravated and Punitive Damages in Cases of Intentional and Severe Torts
Although the intermediate solution proposed here tempers the individualistic approach with family considerations, it follows
the individualistic approach in calling for an increase in the use of aggravated damages and punitive damages in instances of
severe, intentional torts between spouses, in appropriately extreme cases. The increase of damages is, in effect, the converse
of the treatment suggested in the previous section on de minimis cases.
The use of aggravated and punitive damages strongly favors the individualistic approach. The significance of punitive
damages and the considerations for or against their being awarded have been explored by other authors and will not be
discussed here.194 However, it is clear that the award of a sum greater than the valuation of the *256 damage itself expresses
revulsion at the tortfeasor’s acts, and its primary purpose is to punish and deter. 195 Punitive damages for intrafamilial claims
are particularly suitable in cases in which the extrajudicial track has been deemed inappropriate or has turned out
unsuccessful, and where the matter involves a severe, intentional tort that constitute a serious breach of trust.
Courts should also consider awarding aggravated damages. Aggravated damages are similar to punitive damages in that they
also consider the severity of the tortfeasor’s behavior and are awarded in instances in which there exists an element of intent
or malice. They are an expression of an honest assessment of the harm caused, where the harm was aggravated by the
tortfeasor’s inappropriate behavior.196 These damages are awarded especially in cases of non-property damage, such as harm
to one’s good name or feelings, and thus may be particularly appropriate for torts based on non-monetary injury. Aggravated
damages have been awarded in cases of tort claims for violence or abuse. 197 Aggravated damages are justified by the severity
of the tort, particularly in cases in which the courts traditionally award relatively low damages for non-monetary injuries.
Aggravated and punitive damages should be reserved for severe torts and should not be used for tort claims between spouses
based on negligence that is neither intentional nor malicious. 198
To summarize, in regard to the less serious incidents in family life, courts should consider the de minimis defense, while in
the most severe instances, courts should be free to award punitive and aggravated damages. In the intermediate cases that
have reached the trial stage, cases will be handled just like non-spousal tort cases, except for the added possibility of using
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new remedies such as apologies and expressions of remorse.
*257 IV. Conclusion
The use of tort claims against family members requires the creation of a new theoretical and practical framework. Several
factors should be considered when deciding whether to block or limit familial torts. These factors include trends consistent
with modern tort law and with family relationships in modern society.
Tort claims against family members should be considered solely in line with tort law, rather than as an offshoot of family
law. At the same time, it should be understood that there are instances in which the specific tort dispute should not be isolated
from a broader family dispute over money, control, and power. It is possible for parties to use a tort claim (even its very filing
for the purpose of deterrence) as a tool to resolve a broader family quarrel. Tort law could fill the vacuum left by a family law
system that does not deal with the harm caused by the injurious behavior of a spouse. Because intrafamilial tort claims are
distinct from a claims between two strangers, they should be handled with greater sensitivity, but they should certainly not be
blocked as they would be under common law.
This essay proposes an intermediate solution between the individualistic approach, which recognizes the right of the
individual to sue any tortfeasor-- even a spouse--in tort, and the family approach, which recognizes the importance of
preserving family harmony and treating family affairs with sensitivity. The intermediate approach attempts to find a
compromise between individualism and communitarism, between a focus on the individual and consideration of the sphere to
which he belongs, through an understanding that intrafamilial litigation should not be treated with the same tools applied to
tort litigation between two strangers. The considerations in favor of blocking the claim, primarily the importance of
preserving the harmony of the family unit, serve here not to block the claim, but to limit the individualistic approach and
prevent blanket acceptance of all claims.
The foundations of the intermediate proposal between the family and the individualistic approaches have been integrated into
all the stages of the tort litigation process and make intelligent use, under the supervision of the court, of extrajudicial tools.
This essay suggested that during the preliminary stage, tort claims should be recognized against a third party (such as insurer
or employer) even if the spouse is the formal defendant, in estate claims, and when the family has broken down. In those
cases the primary argument for the family approach--namely, family harmony--is irrelevant.
*258 The next stage is an attempt to resolve the spousal dispute following the filing of a tort claim. It involves
quasi-mandatory participation in two court-supervised mediation sessions aimed at resolving the dispute. These sessions
preserve the power of the court and its control of the process, while attempting to resolve the dispute through the extrajudicial
process. The four goals of tort law--compensation, corrective justice, distributive justice, and deterrence--are fulfilled at least
in part in this solution, since in emotional disputes the plaintiff does not always seek money, but rather remedies that the law
cannot usually supply. Thus, the proposed solution--forcing the parties to participate in two sessions of mediation or therapy,
while the legal proceedings are temporarily stopped, and ordering the mediator or the therapist to file a report to the court,
without coercing the parties to continue to participate after these two sessions--is not contrary to the aims of tort law and
constitutes a fine balance between the family and individualistic approaches.
Finally, the essay suggested three innovations in the trial phase of tort litigation against a spouse. The first suggestion is to
legislate special “emotional” remedies such as apologies and expressions of remorse, as in defamation. The second is to alter
the interpretation of the de minimis defense in regard to intrafamilial torts. And the third is to use the mechanism of
aggravated and punitive damages in cases of intentional and severe torts.
The goal of this essay was to provide an initial framework for the question under discussion, and to outline a basic,
in-principle legal policy for this delicate issue. Elaboration of the framework and a discussion of the torts themselves are left
for later development.
The platform presented in this essay may be the beginning of a path for civil suits between spouses and within the family in
general, not only for torts. A similar path may be taken in regard to contractual or property claims between family
members.199 Although the goals of these sets of laws are different from those of tort law, the general view of the dilemma
between the individualistic approach--whether applied in torts, contracts or property--and the family approach ought to be
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similar. Therefore, the problems raised regarding tort claims within the family, and even the solutions proposed for those
dilemmas, may also be adapted, mutatis mutandis, to other civil suits.
*259 Although intrafamilial litigation in any area brings deeply-felt emotions to the surface, the conflict in intrafamilial tort
litigation tends to be particularly severe. In intrafamilial litigation, the disputed issue is often not a monetary dispute, as in
contract or property law. Instead, the disputes tend to be predicated on injuries that are unique to spousal relations, such as
breach of promise to marry or deceit as to paternity of a child. These torts exist alongside the grounds for litigation between
strangers, which are particularly salient when they occur between spouses: assault and abuse, defamation of character, or
infringement of privacy. Injury to those values may bring about an excess of tension and emotional outbursts, and these are
classic instances in which the real remedy sought may not be (only) monetary compensation.
Professor Dan Dobbs has noted, in discussing individual accountability as compared to social responsibility, that “[w]e are all
individuals and we are all members of society.”200 If I may borrow from this idea, I can say that we are all individuals, but
we are also members of a family, of some kind, and that tort law should take this reality into consideration.
Footnotes
a1
Ph.D. 2005, L.L.M. 1999, L.L.B. 1998, Bar Ilan University; Visiting Professor, Duke University School of Law, 2006/7-2007/8;
Assistant Professor (Senior Lecturer - tenured) and Director of the Center for the Rights of the Child and the Family and the legal
clinics, Sha’arei Mishpat Law College; Adjunct Professor at the Law Faculty in Bar-Ilan University, Israel. My thanks to Michal
Alberstein, Ayelet Blecher-Prigat, Katherine (Kathy) Bradley, George Christie, Zippora Cohen, Doriane L. Coleman, Eran Finer,
Elad Finkelstein, Aviad Hacohen, Dafna Lavi, Hilly Mudrick Even-Chen, Ariel Porat, and Zvi Weizman, participants in the
workshops at Sha’arei Mishpat College (2007/8) and Bar-Ilan University School of Law (2009/10) and students in the “Legal
Intervention in Parent-Child Relations” and “Domestic Torts - Theory and Practice” (2007) courses, Duke University, and in
“Intra-familial Relations in Torts,” Bar Ilan University and Sha’arei Mishpat College (2008/9), for their enlightening comments
and fascinating discussions on this topic. Thanks also to my dedicated research assistants Daniel Amato, Daniel Kochavi, Erez
Korn, and Guy Keinan, and to the Harvard Negotiation Law Review editors, especially Stephanie Singer, Jonathan Tshiamala,
and Amit Vora, for a wonderful job.
1
In general, this essay will not distinguish between couples who are still living together (married or not) and those who are already
separated at the time of the claim, between couples who have children and those who don’t, and between couples of the same or
opposite sex, unless the need arises. In the United States, couples who are not married are traditionally not treated in the same
way as married couples for the purpose of tort claims, which implies fewer restrictions on such tort litigation. See Douglas E.
Abrams et al., Contemporary Family Law 370 (2006).
2
For discussion of the individualistic and family approaches in various family matters contexts, see C. Harry Hui, Measurement of
Individualism-Collectivism, 22 J. of Res. in Personality 17-36 (1988); Sandra L. Haley, Comment: The Parental Tort Immunity
Doctrine: Is It A Defensible Defense?, 30 U. Rich. L. Rev. 575, 579 (1996); Martha Minow & Mary Lyndon Shanley,
Revisioning the Family: Relational Rights and Responsibilities, in Reconstructing Political Theory: Feminist Perspectives 84
(Mary Lyndon Shanley & Uma Narayan eds., 1997); Benjamin Shmueli, Who’s Afraid of Banning Corporal Punishment? A
Comparative View on Current and Desirable Models, 26 Penn State Int’l L. Rev. 57, 61-66 (2007).
3
Throughout this essay, the term “his” shall be interpreted to be gender-neutral, except where the context indicates otherwise.
4
Hui, supra note 2; Ron Shor, The Significance of Religion in Advancing a Culturally Sensitive Approach Towards Child
Maltreatment, 79:4 Families in Society 400 (1998) (explaining that according to the collectivist approach, the existential unit to
which the individual belongs needs to be examined. In general, the smallest unit for this purpose is the family). According to the
collectivist approach, the individual is subject to the authority of the collective and is influenced by its norms and the behavioral
rules that he is expected to follow. For example, in the raising of children, emphasis is placed on obedience, commitment, and
sacrifice for the collective. Therefore, values such as family integrity, mutual commitment, and conformity to the collective are
reinforced and rewarded. Members of the same collective--the same community--maintain strong mutual relations within the
group, which to a large extent define their identity. Therefore, room to maneuver in such societies is particularly limited as a
result of the expectation of a certain type of behavior.
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5
Abrams et al., supra note 1, at 369.
6
Universal Declaration of Human Rights § 16(1), Dec. 10, 1948; International Covenant on Civil and Political Rights § 23, Dec.
16, 1966.
7
This discussion is, in fact, one aspect of the discussion on the broader question of whether to view the family unit as a separate
sphere. In other words, does the family a unit comprise a collection of individuals, each of whom have independent rights, or
should those family members perhaps not be seen solely as separate individuals, but also as part of a fundamental unit of society,
a unit that has interests as an independent body? This issue of “the private is the public” has been discussed in the family context
in regard to the rights of women and children, particularly in feminist discourse. See, e.g., Frances E. Olsen, The Family and the
Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497 (1983); Frances Olsen, Children’s Rights: Some Feminist
Approaches to the United Nations Convention on the Rights of the Child, 6 Int’l J. L.& Fam 192, 194-95, 208 (1992); Hilary Lim
& Jeremy Roche, Feminism and Children’s Rights, in Feminist Perspectives on Child Law 227 (Jo Bridgeman & Daniel Monk
eds., 2000); Michael Freeman, Feminism and Child Law, in Feminist Perspectives on Child Law 19, 20 (Jo Bridgeman & Daniel
Monk eds., 2000).
8
On the duty of trust between spouses, and its translation into the duty of care in the tort of negligence, see Yuval Sinai &
Benjamin Shmueli, Changing the Current Policy Towards Spouse Abuse: A Proposal Inspired by Jewish Law for a New Model,
32 Hastings Int’l & Comp. L. Rev. 155, 161-77 (2009).
9
For a succinct discussion of the aims of tort law, see W. Page Keeton et al., Prosser and Keeton on the Law of Torts 1-26 (5th ed.
1984); Dan B. Dobbs, The Law of Torts 12-25 (2000); Kenneth S. Abraham, The Forms and Functions of Tort Law 14-20 (3d ed.
2007); Glanville Williams, The Aims of the Law of Tort, in 4 Current Legal Problems 137 (1951); W.V.H. Rogers, Winfield &
Jolowicz On Torts 1-4 (16th ed. 2002).
10
According to this goal, the identity of the person providing compensation--whether it is the direct tortfeasor or a third party, such
as an employer, an insurer, the public, etc.--is not important, since this goal is not necessarily based on fault; it is sufficient that
the status quo ante be restored or repaired, by whatever means and through whatever mechanism. The focus is primarily on the
specific victim and the need to fully compensate him, and less on the question of who must do so. See Francis H. Bohlen,
Contributory Negligence, 21 Harv. L. Rev. 256 (1908), reprinted in Francis H. Bohlen, Studies in the Law of Torts 500, 530
(1926); Keeton et al., supra note 9, at 20.
11
Steven Neeley, The Psychological and Emotional Abuse of Children: Suing Parents in Tort for the Infliction of Emotional
Distress, 27 N. Ky. L. Rev. 689, 711 (2000).
12
See generally Ernest J. Weinrib, Corrective Justice, 77 Iowa L. Rev. 403 (1992); Ernest J. Weinrib, The Gains and Losses of
Corrective Justice, 44 Duke L. J. 277 (1995); Ernest J. Weinrib, Correlativity, Personality, and the Emerging Consensus on
Corrective Justice, 2 Theoretical Inq. L. 107 (2001); Ernest J. Weinrib, Corrective Justice in a Nutshell, 52 U. Toronto L.J. 349
(2002). For other approaches to an understanding of corrective justice, see George P. Fletcher, Fairness and Utility in Tort
Theory, 85 Harv. L. Rev. 537, 537-564 (1972); Richard Epstein, A Theory of Strict Liability (1980); Jules Coleman, Corrective
Justice and Wrongful Gain, 11 J. Legal Stud. 421 (1982).
13
Burnette v. Wahl, 588 P.2d 1105 (Or. 1978); Neeley, supra note 11, at 711-13.
14
There are those who do not see compensation as an independent goal, but rather as one that depends on other goals; therefore they
do not enumerate it among the goals of tort law, since this goal - unlike corrective justice - does not answer the important
questions of who should compensate and why compensation should be made. However, it may be that the key to the goal of
compensation is the focus on the victim and the need to compensate him, in almost all cases, without fundamentally considering
the identity of the person making compensation, as in corrective justice, since if the tortfeasor cannot pay compensation, there is a
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social importance in finding others who will actually do so even if corrective justice is not fulfilled.
15
Frank Vandall et al, Torts: Cases and Problems 668 (2nd ed., 2003); Neeley, supra note 11, at 711-13.
16
See Note, Litigation Between Husband and Wife, 79 Harv. L. Rev. 1650, 1656 (1966) [hereinafter Litigation].
17
Price v. Price, 732 S.W.2d 316 (Tex. 1987).
18
See Austin v. Austin, 124 N.Y.S.2d 900, 902 (N.Y. App. Div. 1953); Max Rheinstein, Challenge and Response in Family Law, 17
Van. L. Rev. 239, 250-51 (1963).
19
Although it might be argued that this is one of the purposes of the statute of limitations--not only to establish a presumption of the
time to preserve documents, memories of witnesses, etc., but also to allow the person with the right to litigate to examine, over
time, and free of pressure, whether he truly wishes to sue. Changes that come over him in general, and specifically in his
relationship with the defendant, may be a decisive factor in the decision of whether to sue, and this appears legitimate according
to this approach.
20
Dobbs, supra note 9, at 13-14.
21
Neeley, supra note 11, at 711.
22
There are those who hold, perhaps correctly, that the ability to sue a spouse in tort reintroduces the element of fault, which is
disappearing from family divorce law, “through the back door.” This concern is particularly relevant when the tort claim deals
with the same actions that are being addressed in a family law setting, particularly if the tort claim is submitted in parallel with the
divorce proceedings. See Abrams et al., supra note 1, at 370, 395 for an extensive discussion on Hakkila v. Hakkila, 812 P.2d
1320, 1323 (N.M. Ct. App. 1991). The progress toward “no fault” divorce, characteristic of the western world in the 1970s and
1980s (at least alongside the option of fault-based divorce) may be impeded in this way. For various opinions on this topic, see
Robert G. Spector, Marital Torts: The Current Legal Landscape, 33 Fam. L. Q. 745, 746 (1999); Harry D. Krause, On the Danger
of Allowing Marital Fault To Re-Emerge in the Guise of Torts, 73 Notre Dame L. Rev. 1355, 1364 (1998). For example,
American law allows tort claims against a spouse on the grounds of infidelity, which was the classic instance of fault in divorce.
Such a suit is also possible against the lover, for providing temptation. See, e.g., Keeton et al., supra note 9, at 918-23; Abrams et
al., supra note 1, at 369. In such cases, there is an interaction between tort law and family law, even though, at first glance, the suit
only has elements of tort. Moreover, in states in which fault is taken into account in property and alimony cases, there is a concern
for double jeopardy; that is, that the same actions will be taken into account both in the proceedings regarding the family law
division of property and maintenance, and in the tort proceedings. See Abrams et al, supra note 1, at 395-96. In my opinion,
however, the concerns about double jeopardy and the reintroduction of fault do not apply here, since the fault is of a different
nature. The type of fault involved in tort claims, which require negligence, is different from that involved in personal law, which
can operate under strict liability. In other words, the outcome of accepting a tort claim in cases of negligence can only come about
by indicating fault, since these are fault-based torts that belong to a rule of negligence, and not to strict liability. Therefore, there
is no escaping the assignment of fault in such a tort action; it should not be seen as bringing fault in through the back door, while
family law seeks to abandon it in favor of no-fault divorce. The parallel between the development in family law and tort law is,
therefore, a problematic one.
23
See Williams, supra note 9; Keeton et al., supra note 9 (considering the prevention of future damage and the punitive component
in the goal of deterrence); Dobbs, supra note 9, at 19-21; Guido Calabresi, The Costs of Accidents 107-113 (1970) (presenting an
economic approach that considers effective (optimal) deterrence); Richard A. Posner, The Concept of Corrective Justice in Recent
Theories of Tort Law, 10 J. Legal Stud. 187, 201-06 (1981); Christopher J. Robinette, Can There Be a Unified Theory of Torts? A
Pluralist Suggestion from History and Doctrine, 43 Brandeis L.J. 369, 382-85 (2005) (briefly surveying the economic approach).
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24
Neeley, supra note 11, at 711-14 (describing deterrence in tort litigation within the family). In American law, the consideration of
deterrence is particularly relevant in intentional torts. See Litigation, supra note 16. Regarding English law, see Williams, supra
note 9, at 143.
25
See generally Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 Yale L.J. 1055 (1972).
26
This is in line with the approach of Posner, who adopts the Learned Hand Formula. See Conway v. O’Brien, 111 F.2d 611, 612
(2nd Cir. 1940); United States v. Carroll Towing Co., Inc., 159 F.2d 169, 173 (2nd Cir. 1947). For an overview of the Learned
Hand Formula, see Dobbs, supra note 9, at 338-40 (B<PL: B is the burden or cost of prevention, P is the probability of harm, and
L is the degree of loss. The expectancy of harm is the product of the probability of harm and the degree of loss.). For adoption of
the formula in the proposed Restatement, see Restatement (Third) of Torts: Liability for Physical Harm § 3 (Proposed Final Draft
No. 1, 2005).
27
See Williams, supra note 9, at 166, in regard to the inability to insure against intentional torts in common law.
28
See, e.g., Barbara Bennett Woodhouse, The Dark Side of Family Privacy, 67 Geo. Wash. L. Rev. 1247, 1252, 1254 (1999); David
J. Herring, Exploring the Political Roles of the Family: Justifications for Permanency Planning for Children, 26 Loy. U. Chi. L.J.
183, 243 (1995).
29
Olsen, The Family and the Market, supra note 7, at 1523.
30
Litigation, supra note 16, at 1656.
31
Genesis 2:24.
32
Nor could a third party sue them separately. The husband, as a rule, was liable for his wife’s debts and entitled to her entitlements.
In criminal law, on the other hand, the situation was different; a wife could testify and could be deemed an independent victim, if
her husband committed a crime against her. See Heino v. Harper, 759 P.2d 253, 257-62 (Or. 1988); William Blackstone,
Commentaries on the Laws of England 442-45 (vol. 1, 1765); George C. Christie et al, Cases and Materials on the Law of Torts
543 (4th ed. 2004); Keeton et al., supra note 9, at 901-02; Frederic Pollock & Frederic William Maitland, History of English Law
405-06 (2d ed. 1898); William E. McCurdy, Torts Between Persons in Domestic Relation, 43 Harv. L. Rev. 1030, 1032-33 (1930)
(dealing also with the procedural problem of a person who is both plaintiff and defendant, in the case where the husband injured
his wife, or vice versa).
33
Law Reform (Husband and Wife) Act, 1962, 10 & 11 Eliz. 2, c.48 (Eng.).
34
See, e.g., Kent, Commentaries on American Law 129 (1827) (discussing spousal immunity); Kelley v. Kelley, 153 A. 314 (R.I.
1931) (same); Plotkin v. Plotkin, 125 A. 455 (Del. Super. 1924) (same). For references from 19th century judgments, see Keeton
et al., supra note 9, at 902.
35
At the beginning of the 20th century, there was a jump in tort claims by women against their husbands (for trespass, deceit,
destruction of property, etc.) as well as claims by husbands against wives. For judgments in such cases, see Keeton et al., supra
note 9, at 902. On the development of the rights of women against men in the family, see Abrams et al., supra note 1, at 168-51.
36
Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963); Campbell v. Campbell, 114 S.E.2d 406 (W. Va. 1960) (dealing with
negligence claims). See also Fischer v. Toler, 401 P.2d 1012 (Kan. 1965) (dealing with claims for assault and other intentional
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torts).
37
For discussion of developments in immunity from intrafamilial tort litigation in the United States, see Dan B. Dobbs & Paul T.
Haydan, Torts and Compensation, 441-46 (5th ed. 2001); Leonard Karp, Domestic Torts:Family Violence, Conflict, and Sexual
Abuse 283-85 (Vol. I, Rev. ed. 2005); Richard A. Epstein, Torts, 613-14 (1999) (arguing that courts have attempted to find other
justifications (or excuses) for immunity after the abrogation of the traditional rationale due to women’s successful struggle for full
civil rights); Keeton et al., supra note 9, at 901-04; Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359
(1989); Neeley, supra note 11; Haley, supra note 2; Ira Mark Ellman & Stephen D. Sugarman, Spousal Emotional Abuse as a
Tort?, 55 Md. L. Rev. 1268 (1996); McCurdy, supra note 32; Sanford, Personal Torts Within the Family, 9 Vand. L. Rev. 823
(1956); Litigation, supra note 16, at 1650-54.
38
In the words of the court in the Ritter case, in angrily prophetic tones: “Nothing could so complete that severance [of the marriage
relationship] and degradation, as to throw open litigation to the parties. The maddest advocate for woman’s rights, and for the
abolition on earth of all divine institutions, could wish for no more decisive blow from the courts than this. The flames which
litigation would kindle on the domestic hearth would consume in an instant the conjugal bond, and bring on a new era indeed--an
era of universal discord, of unchastity, of bastardry, of dissoluteness, of violence, cruelty, and murders.” Ritter v. Ritter, 31 Pa.
396, 398 (1858). Cf. Heino v. Harper, 759 P.2d 253 (Or. 1988) (rejecting an argument that an intrafamilial tort lawsuit encourages
enmity between spouses on the grounds that there was no clear research on the subject); Epstein, supra note 37, at 614-15
(intrafamilial suits “could lead to discord within the family”). Immunity in interspousal claims was applicable to claims based on
both negligently and intentionally inflicted personal injury. See Litigation, supra note 16, at 1650-51.
39
Courts aimed for “preservation of happy homes,” in the words of the court in Price v. Price, 732 S.W.2d 316, 317 (Tex. 1987) and
“conjugal happiness,” in the words of the court in Abbott v. Abbott, 67 Me. 304 (1877). See also Litigation, supra note 16, at
1651. Proponents of this approach argue that rights and duties are a legal matter, while the happiness of the parties is not such.
See id.
40
Steele v. Steele, 65 F. Supp. 329 (D.C. Cir. 1946); Goode v. Martinis, 361 P.2d 941 (Wash. 1961); McGuire v. McGuire, 59
N.W.2d 336 (Neb. 1953); Austin v. Austin, 124 N.Y.S.2d 900 (N.Y. App. Div. 1953); Commonwealth v. George, 56 A.2d 228
(Pa. 1948); Rheinstein, supra note 18, at 246-48 (arguing that for couples living together, extrajudicial remedies should be sought,
particularly when the principal damage is pain and suffering).
41
Litigation, supra note 16, at 1651.
42
See, e.g., Johnson v. Johnson, 77 So. 335 (Ala. 1917); Prosser v. Prosser, 102 S.E. 787 (S.C. 1920); Crowell v. Crowell, 105 S.E.
206 (N.C. 1920), rehearing denied 106 S.E. 149 (N.C. 1920); Klein v. Klein, 376 P.2d 70 (Cal. 1962); Cramer v. Cramer, 379
P.2d 95 (Alaska 1972); Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972).
43
See generally Lewis v. Lewis, 351 N.E.2d 256 (Mass. 1976) (thoroughly discussing evolution of spousal immunity); Beaudette v.
Frana, 173 N.W.2d 416 (Minn. 1969) (abrogating spousal immunity).
44
Restatement (Second) Torts § 895F(1) (1979).
45
Winn v. Gilroy, 681 P.2d 776 (Or. 1984); Vandall et al., supra note 15, at 686-87. For such an interpretation, see Epstein, supra
note 37, at 614.
46
See, e.g., Lusby v. Lusby, 390 A.2d 77 (Md. 1978), holding modified in part by Bozman v. Bozman, 830 A.2d 450 (Md. 2003);
S.A.V. v. K.G.V., 708 S.W. 2d 651 (Mo. 1986); Boone v. Boone, 546 S.E.2d 191 (S.C. 2001); Waite v. Waite, 618 So.2d 1360
(Fla. 1993); Wisniewski v. Wisniewski, 485 N.E.2d 248 (Ohio 1985); Hack v. Hack, 433 A.2d 859 (Pa. 1981). In some
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jurisdictions, immunity was abrogated even in cases of negligence where the harm was far from intentional, as in the case of a
husband whose wife was injured when he negligently failed to clear the snow from the steps of the house. See Brown v. Brown,
409 N.E. 2d 717 (Mass. 1980). In some states, legislation was passed to abrogate the immunity. See, e.g., D.C. Code 1981 §
30-201. In South Carolina, not only was the immunity annulled, but it was described as contrary to natural justice and public
policy. South Carolina will even hear intrafamilial claims for negligence that occurred in a state where immunity exists. Boone,
546 S.E.2d 191. See Dobbs & Haydan, supra note 37, at 443.
47
See Heino v. Harper, 759 P.2d 253 (Or. 1988); Vandall et al., supra note 15, at 688 (explaining that this is the case since the
immunity was originally created by the courts).
48
Price v. Price, 732 S.W.2d 316 (Tex. 1987).
49
See, e.g., Raisen v. Raisen, 379 So.2d 352 (Fla.1979) (dismissing action as barred by doctrine of interspousal immunity); Christie
et al., supra note 32, at 545. For additional judgments from different states, see Karp, supra note 37, at 284, and Keeton et al.,
supra note 9, at 903. Even when intrafamilial torts are permitted, relatively few claims have been submitted. In particular,
commentators have noted a significantly low proportion of tort claims against spouses for violence. See Jennifer B. Wriggins,
Toward a Feminist Revision of Torts, 13 Am. U. J. Gender Soc. Pol’y & L. 139, 155 (2005); Douglas Scherer, Tort Remedies for
Victims of Domestic Abuse, 43 S. C. L. Rev. 543, 565 (1992).
50
Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978); see also Keeton et al., supra note 9, at 909.
51
Rupert v. Steinne, 528 P.2d 1013 (Neb. 1974); Surratt v. Thompson, 183 S.E.2d 200 (Va. 1971); Transamerica Ins. Co. v. Royle,
656 P.2d 820, 823-24 (Mont. 1983).
52
Asplin v. Amica Mutual Ins. Co., 394 A.2d 1353 (R.I. 1978); Herget Nat’l Bank of Pekin v. Berardi, 356 N.E.2d 529 (Ill. 1976).
53
See Abrams et al., supra note 1, at 371-76 (stating that the ruling in Bozman v. Bozman, 830 A.2d 450 (Md. 2003) in Maryland is
a good example, although not the first, of the breakthrough regarding the abrogation of immunity in instances of intentional torts
that do not require that the behavior have been particularly outrageous). For similar severe instances, see Windauer v. O’Connor,
485 P.2d 1157 (Ariz. 1971); Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977),
modified by Price v. Price, 732 S.W.2d 316 (Tex. 1987). The court in Price said, “It is difficult to fathom how denying a forum
for the redress of any wrong could be said to encourage domestic tranquility.” 732 S.W.2d at 318. See also Lusby v. Lusby, 390
A.2d 77 (Md. 1978) (a particularly severe case in which the husband raped his wife at gunpoint and then subsequently assisted
two others to rape her); Apitz v. Dames, 287 P.2d 585 (Or. 1955). Note that in Utah, a case of negligence, without intent or
malice, did not reach the hearing stage, and so no doctrine was expressed, whereas in Arizona, in a case involving a couple from
Utah, the appeals court in Arizona applied the doctrine from Utah even in a case of negligent harm. See Lucero v. Valdez, 884
P.2d 199 (Ariz. 1994). For details, see Christie et al., supra note 32, at 544. In some states, the immunity was revoked only for
instances of intentional infliction of emotional distress, and the courts generally required in such cases a very high level of
malicious behavior, such as an attempt to murder the spouse or severe deception. See Feltmeier v. Feltmeier, 798 N.E.2d 75 (Ill.
2003); Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993); Vance v. Chandler, 597 N.E.2d 233 (Ill. 1992); Whelan v. Whelan,
588 A.2d 251 (Conn. Super. 1991). In other cases the claim was denied. See Chen v. Fischer, 810 N.Y.S.2d 96, 98 n.2 (2005);
Hakkila v. Hakkila, 812 P.2d 1320 (N.M. Ct. App. 1991). For discussion and expansion on the required level of malice (the
interpretation of outrageous conduct) and on the differences in rulings between different states, see Abrams et al., supra note 1, at
384-97; Christie et al., supra note 32, at 545; Ellman & Sugarman, supra note 37, at 1328-1329; Seymour Benson & Leigh
Knisken, Interspousal Tort Liability: Abrogation of Interspousal Immunity, 68 Fla. B.J. 62 (1994).
54
In some states, such as Georgia and Louisiana, immunity even appears in legislation. See Ga. Code Ann. § 19-3-8 (2009); La.
Rev. Stat. Ann. § 9:291 (2008). In Georgia, immunity exists, see Gates v. Gates, 587 S.E.2d 32 (Ga. 2003), but certain limitations
were applied through judicial rulings, and so Louisiana is apparently the only state that preserves the immunity in full. See also
Christie et al., supra note 32, at 544. In Delaware, courts have differed as to whether to overturn legislature-created immunity. See
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Alfree v. Alfree, 410 A.2d 161, 163 (Del. 1979) (leaving decision to eliminate spousal immunity to legislature), overruled by
Beattie v. Beattie, 630 A.2d 1096, 1098-1100(Del. 1993) (abrogating spousal immunity because it “no longer meets the needs of
society”); Keeton et al., supra note 9, at 903.
55
Chen v. Liao, 420 F. Supp. 472 (D. Del. 1976); Gaston v. Pittman, 224 So. 2d 326 (Fla. 1969); O’Grady v. Potts 396 P.2d 285
(Kan. 1964); Hamilton v. Fulkerson, 285 S.W.2d 642 (Mo. 1955); Pearce v. Boberg, 510 P.2d 1358 (Nev. 1973). Some judgments
explicitly recognized such suits, although with certain restrictions. See, e.g., Moulton v. Moulton, 309 A.2d 224 (Me.1973);
Childress v. Childress, 569 S.W.2d 816 (Tenn. 1978).
56
Windauer v. O’Connor, 485 P.2d 1157 (Ariz. 1971); Steele v. Steele, 65 F. Supp. 329 (D.C. Cir. 1946); Lorang v. Hays, 209 P.2d
733 (Idaho 1949); Goode v. Martinis, 361 P.2d 941 (Wash. 1961); Burns v. Burns, 526 P.2d 717 (Ariz. 1974). In some states,
such as Florida, both exceptions apply together; that is, that one may sue for pre-marital torts, as long as the suit is filed after the
termination of the marriage. See Gaston, 224 So. 2d at 326.
57
Shoemaker v. Shoemaker, 407 S.E.2d 134 (Ga. App. 1991).
58
See Keeton et al., supra note 9, at 910.
59
Litigation, supra note 16, at 1651.
60
Id. at 1652.
61
Abrams et al., supra note 1, at 369.
62
See Keeton et al., supra note 9, at 906-07, 909, 916.
63
Certain of these arguments are very closely related, but they are presented separately in legal judgments and in the literature, and
that is how I will present them here.
64
For various perspectives on this argument, see Luther v. Borden, 48 U.S. (7. How.) 1, 47 (1849); Litigation, supra note 16, at
1655-59; Austin v. Austin, 124 N.Y.S.2d 900 (N.Y. App. Div. 1953); Miller v. Miller, 42 N.W. 641, 642 (Iowa 1889); see also
Litigation, supra note 16, at 1656-58 (comparing this issue to the non-justiciability of political issues and their unsuitability to be
judged due to the delicacy and complexity of the issues and the need to take into account social and psychological issues when
ruling on them).
65
Balfour v. Balfour, [1919] 2 K.B. 571, 579.
66
Alexander M. Bickel, Foreword. The Passive Virtues, 75 Harv. L. Rev. 40 (1961); Litigation, supra note 16, at 1657.
67
Epstein, supra note 37, at 613.
68
Smith v. Smith, 287 P.2d 572, 584 (Or. 1955); Litigation, supra note 16, at 1657.
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69
Litigation, supra note 16, at 1658-59 and references therein.
70
Abrams et al., supra note 1, at 370. The procedural question here is even broader. For example, could a tort suit be filed following
divorce proceedings and separate from them? Would it be possible to file such a tort suit subsequently, without the risk of double
jeopardy, if the tort argument is rejected in the divorce proceedings? If so, may use be made of facts established in the prior
proceedings? These questions have been debated by courts in different states. See Hakkila v. Hakkila, 812 P.2d 1320 (N.M. Ct.
App. 1991) (Donnelly, J., minority opinion); Barbara Glesner Fines, Joinder of Tort Claims in Divorce Actions, 12 J. Am. Acad.
Matrimonial L. 285 (1994); Abrams et al., supra note 1, at 396 (surveying rulings on this question).
71
In the United States, there are additional procedural differences in the handling of tort claims and divorce proceedings, such as the
presence of a jury (usually in tort claims, never in marital proceedings) and the method for calculating legal fees. See Chen v.
Fisher, 843 N.E.2d 728 (N.Y. 2005); Christians v. Christians, 637 N.W.2d 377, 386-87 (S.D. 2001).
72
See Keeton, supra note 9, at 480-98.
73
McCurdy, supra note 32, at 1055.
74
Epstein, supra note 37, at 614 (‘Most obviously, close and intimate contact often gives rise to a strong interference of assumption
of the risk for routine accidents, which in turn can be overcome only by showing intentional harms or conscious indifference‘).
75
Litigation, supra note 16, at 1655; Rheinstein, supra note 18, at 250-51.
76
Cf. Litigation, supra note 16, at 1655-57 (discussing the opposing argument that suggests that extrajudicial proceedings are no
less appropriate in suits between strangers, and so spousal claims should not be blocked on the basis of their supposedly particular
suitability to this avenue).
77
Edward J. Kionka, Torts in a Nutshell 406-07 (3rd ed., 1999).
78
This concern increased with the appearance of insurance coverage for traffic accidents. See Abbott v. Abbott, 67 Me. 304 (1877);
Newton v. Weber, 196 N.Y.S. 113 (Sup. Ct. 1922); Klein v. Klein, 376 P.2d 70 (Cal. 1962); Homer H. Clark, Jr., The Law of
Domestic Relations in the United States 641 (2d ed. 1988); Christie et al., supra note 32, at 541, 544-45; Keeton et al., supra note
9, at 902; Dobbs & Haydan, supra note 37, at 442-43; Litigation, supra note 16, at 1659-60 and references therein.
79
Epstein, supra note 37, at 614. See also Restatement (Second) Torts § 895F, cmt. d (1979).
80
Schubert v. August Schubert Wagon Co., 164 N.E. 42, 43 (N.Y. 1928).
81
Abbott, 67 Me. 304.
82
Epstein, supra note 37, at 614.
83
See, e.g., Allstate Insurance Co. v. Boles, 481 N.E.2d 1096 (Ind. 1985) (approving such conditions); Meyer v. State Farm Mutual
Auto Insurance Co., 689 P.2d 585 (Colo. 1984) (rejecting such conditions).
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84
See Brunner v. Hutchinson Division, Lear-Siegler, Inc., 770 F. Supp. 517 (D.S.D. 1991); Doxee v. Doxee, 80 P.3d 225 (Alaska
2003); Price v. Price, 732 S.W.2d 316 (Tex. 1987); Immer v. Risko, 267 A.2d 481 (N.J. 1970); Beaudette v. Frana, 173 N.W.2d
416 (Minn. 1969); Goller v. White, 122 N.W.2d 193 (Wis. 1963); Klein v. Klein, 376 P.2d 70 (Cal. 1962); Christie et al., supra
note 32, at 548.
85
Price, 732 S.W.2d 316.
86
Norwest v. Presbyterian Intercommunity Hospital, 652 P.2d 318 (Or. 1982); Heino v. Harper, 759 P.2d 253 (Or. 1988).
87
See, e.g., Jennifer B. Wriggins, Interspousal Tort Immunity and Insurance ‘Family Member Exclusions‘: Shared Assumptions,
Relational and Liberal Feminist Challenges, 17 Wis. Women’s L.J. 251 (2002).
88
See, e.g., McLoughlin v. O’Brian [1983] 1 A.C. 410 (H.L.).
89
Litigation, supra note 16, at 1652.
90
Neeley, supra note 11, at 700.
91
Relational contracts are contracts between parties that have a history of previous transactions and expectations for the future, as
well as shared interests. Such parties do not take into account the immediate profit alone, but also the continuation of the
relationship, mutual relations, reputation in the community, etc. Relational contracts are thus different from transactional
contracts, which are generally made between strangers on a one-time basis. See Ian R. MacNeil, Contracts: Adjustment of
Long-Term Economic Relations Under Classical, NeoClassical and Relational Contract Law, 72 Nw U. L. Rev. 854 (1978).
Shahar Lifshitz imports the idea of relational contracts into spousal relations in the contractual context. He examines spousal
contracts (including classical contracts such as pre-nuptial agreements, divorce agreements, and agreements to cohabitate, as well
as agreements that establish the parties’ place of residence, division of duties in the home, procedures for dispute resolution, etc.)
as relational contracts. See Shahar Lifshitz, Contracts Between Spouses, 4 Kiryat HaMishpat 271, 295-302 (2004-2005) (Heb.).
His approach opposes recognition and legal enforcement of such contracts and calls on the legislature to enact a system of spousal
contracts based on the understanding that this is in fact a special type of relational contract, and so the application of general
contract law to these contracts is inappropriate. In his view, at times judicial rulings do manage to forge a new path, at least when
one reads between the lines, and establish unique arrangements, but there is still concern that, in many instances, the courts will
apply a literal reading of general contract law to such cases. Therefore, in his opinion, it would be appropriate for the legislature
to regulate this area, particularly out of concern for differences in power between the parties, as a result of the ongoing
relationship that is not always characteristic of contract law and the nature of the intimate relationship between the couple.
92
Litigation, supra note 16, at 1651.
93
Rhona Schuz, Child Protection in the Israeli Supreme Court: Tortious Parenting, Physical Punishment and Criminal Child Abuse,
in The International Survey of Family Law 165, 176 (Andrew Bainham, ed., 2001).
94
Cf. Christie et al., supra note 32, at 545; Litigation, supra note 16, at 1661-62; McCurdy, supra note 32, at 1055.
95
Cf. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85
Harv. L. Rev. 1089, 1120-21, 1124 (1972).
96
The question of whether the law can deter individuals or whether they act spontaneously, with no risk management and no
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calculations, is beyond the scope of this article. For more on this topic, see R.H. Coase, The Firm, The Market and the Law 1-5
(1988) (criticizing economists for failing to examine the causes that affect human behavior); Yaacov Schul & Ruth Mayo,
Searching for Certainty in an Uncertain World: The Difficulty of Giving Up the Experiential for the Rational Mode of Thinking,
16 J. of Behav. Decision Making 93 (2003) (examining whether behavior can be directed, and when people are more calculating
versus more experiential). Cf. Eldar Shafir & Amos Tversky, Thinking Through Uncertainty: Nonconsequential Reasoning and
Choice, 24 Cognitive Psychol. 449 (1992). I want to thank Yuval Feldman for referring me to these sources.
97
Cf. Litigation, supra note 16, at 1659.
98
Robert A. Baruch Bush & Joseph P. Folger, The Promise Of Mediation: Responding To Conflict Through Empowerment And
Recognition 236-59 (1994).
99
Id.
100 Id.
101 Id.
102 Id.
103 See, e.g., Herring’s critique and Woodhouse’s feminist critique, supra note 28.
104 Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L. J. 624, 629 (1980).
105 See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 123 (1991); Michael J. Sandel, Liberalism and
the Limits of Justice (1982).
106 See Jeremy Waldron, When Justice Replaces Affection: The Need for Rights, in Liberal Rights: Collected Papers 1981-1991, 370
(1993); Elizabeth Kiss, Alchemy or Fool’s Gold? Assessing Feminist Doubts About Rights, in Reconstructing Political Theory:
Feminist Perspectives 1 (Mary Lyndon Shanley & Uma Narayan eds., 1997).
107 Cigdem Kagitcibasi, Family and Human Development Across Cultures: A View From the Other Side (1996).
108 Minow & Shanley, supra note 2.
109 In American law, there has been debate over whether litigation against an employer would entitle the defendant to immunity. The
argument for immunity in this case of litigation against an employer for a spouse-employee who harmed his spouse is not
convincing, because the justifications for immunity are relevant only to family members. See Keeton et al., supra note 9, at
910-11.
110 See Restatement (Second) of Torts, § 895G, cmt. d (1977); Ellman & Sugarman, supra note 37, at 1283.
111 Research indicates relatively greater success in mediation under court auspices in instances in which the referral to mediation
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came at the request of one of the parties or at the initiative of the judge, in comparison with instances in which the referral to
mediation was random. Comprehensive empirical research on mediation under court auspices in the Ohio courts in various civil
disputes (not specifically related to family cases) is described in Roselle L. Wissler, Court-Connected Mediation in General Civil
Cases: What We Know from Empirical Research, 17 Ohio St. J. on Disp. Res. 641, 676-77 (2002).
112 Wissler notes that the courts in Ohio refer relatively few cases to mediation. Nevertheless, the judges themselves thought that
mediation reduced judicial time and staff time. Id. at 670-71. Furthermore, 70% of the parties questioned testified that, following
mediation, they better understood the other party. Id. at 664. Although only 32% of attorneys believed that mediation assisted in
improving relations between the parties, in the opinion of 59% of attorneys, mediation led to greater involvement of the parties in
case resolution. Id. at 665. Forty-nine percent of the parties testified that mediation assisted them in understanding the weaknesses
of their own cases. Id. at 664. Similarly, 50% of attorneys felt that mediation helped them understand the strengths and
weaknesses of their case. Id. at 665. Forty-eight percent of attorneys thought that mediation reduced the costs that the client had to
pay and saved time for them and for their clients. Id. at 672. Thirty-six percent of the clients felt that mediation reduced costs, and
44% believed that it saved time. Id. at 673.
113 There are some claims in which monetary relief may be central to the case, such as inheritance disputes or disagreements over the
division of property when the couple is separating. However, in the bulk of intrafamilial tort claims, there are other interests
underlying the suit.
114 Holly Joyce, Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial L. 447, 447 (1997).
115 Sarah Krieger, The Dangers of Mediation in Domestic Violence Cases, 8 Cardozo Women’s L.J. 235, 243 (2002).
116 Joyce, supra note 114, at 456.
117 Krieger, supra note 115, at 241.
118 Kerry Loomis, Domestic Violence and Mediation: A Tragic Combination for Victims in California Court, 35 Cal. W. L. Rev. 355,
367 (1999).
119 Joyce, supra note 114, at 456.
120 Id. at 457.
121 Laurel Wheeler, Mandatory Family Mediation and Domestic Violence, 26 S. Ill. U. L. J. 559, 563 (2002).
122 There are those who recoil from the idea of mediation when there is clearly a power differential out of concern that, in the absence
of attorneys, the stronger party would set the tone and even manipulate the mediator and obtain advantages that he would not
obtain in legal proceedings. Bush and Folger deal with this problem in their work. Bush & Folger, supra note 98.
123 Wheeler, supra note 121, at 562.
124 See id. at 568.
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125 See id. at 568-69.
126 Meacham v. Jamestown, F. & C. R. Co., 105 N.E. 653, 656 (N.Y. 1914).
127 Matthew Parrott, Note, Is Compulsory Court-Annexed Medical Malpractice Arbitration Constitutional? How the Debate Reflects
a Trend Towards Compulsion in Alternative Dispute Resolution, 75 Fordham L. Rev. 2685, 2692 (2007).
128 The current law is Federal Arbitration Act, 9 U.S.C. § 1-16 (2000). See Parrott, supra note 127, at 2692-93 (discussing the
implications of the law and explaining that the law allows federal enforcement of interstate commerce contracts that include an
arbitration clause).
129 See Developments in the Law - The Paths of Civil Litigation, 113 Harv. L. Rev. 1752, 1855-57 (2002) [hereinafter The Paths of
Civil Litigation] (explaining that the different types of ADR exist in the private sphere).
130 Holly A. Street-Schaefer, Note, A Look at Court Mandated Civil Mediation, 49 Drake L. Rev. 367, 369 (2001).
131 The Paths of Civil Litigation, supra note 129, at 1852.
132 Street-Schaefer, supra note 130, at 369.
133 The Paths of Civil Litigation, supra note 129, at 1853, n.9.
134 Parrott, supra note 127, at 2693 and references therein.
135 Id. at 2693-94 and references therein.
136 The Paths of Civil Litigation, supra note 129, at 1853.
137 Fed. R. Civ. P. 16. (The most recent amendment was in 2007.) See also Amy M. Pugh & Richard A. Bales, The Inherent Power of
the Federal Courts to Compel Participation in Nonbinding Forms of Alternative Dispute Resolution, 42 Duq. L. Rev. 1, 3-7
(2003) (describing the changes undergone by the law up to the 1993 amendment).
138 Fed. R. Civ. P. 16(a) (emphasis added).
139 Parrott, supra note 127, at 2702.
140 28 U.S.C.S. § 471 (1990).
141 This law established that “[t]here shall be implemented by each United States district court, in accordance with this chapter [28
U.S.C.S. §§ 471 et seq.], a civil justice expense and delay reduction plan. The plan may be a plan developed by such district court
or a model plan developed by the Judicial Conference of the United States. The purposes of each plan are to facilitate deliberate
adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and
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inexpensive resolutions of civil disputes.” Id. (emphasis added). See also Parrott, supra note 127, at 2703; The Paths of Civil
Litigation, supra note 129, at 1861 (describing that initially only ten federal courts set up ADR programs that required the litigants
to participate. These programs applied only to claims that were for limited sums (sums between $50,000 and $150,000) and that
did not involve questions of civil rights infringements or raise constitutional questions. These programs required good faith
participation, but application could be made for trial de-novo.).
142 28 U.S.C. § 651-658 (1998).
143 Alternative Dispute Resolution Act of 1998, H.R. 3528, 105th Cong. § 2(1) (2nd Sess. 1998) (enacted).
144 Id., at § 2(2).
145 28 U.S.C. § 651(a) (1998).
146 28 U.S.C. §§ 651(a) & (b); 652(a), (b) & (c) (1998).
147 28 U.S.C. § 652(a) (1998), unless there is an obligation to use arbitration or consent to do so, pursuant to 28 U.S.C. § 654(d)
(1998). See also Note, Mandatory Mediation and Summary Jury Trial: Guidelines for Ensuring Fair and Effective Process, 103
Harv. L. Rev. 1086, 1089-90 (1990) [hereinafter Mandatory Mediation] (discussing this authority).
148 28 U.S.C. § 652(d) (1998).
149 The Paths of Civil Litigation, supra note 129, at 1866-68.
150 Fla. Stat. § 44.102 (2009); Minn. Stat. § 484.74 (2008); Street-Schaefer, supra note 130, at 374-77 (comparing state ADR laws).
151 Street-Schaefer, supra note 130, at 378-82.
152 Id. at 378-80 (explaining that as the number of divorce cases in the United States rises, so too does the number of laws requiring
mediation in custody disputes). Such mediation makes the experience of the dispute less traumatic for the children and allows the
parents to cooperate and compromise. In addition, the courts are so overloaded that they do not have sufficient time to
appropriately evaluate the arguments of the parties and reach a decision that ensures the children’s best interests. Mandatory
mediation, on the other hand, allows the mediator to spend quality time with the family and limit the tensions created by
adversarial litigation.
153 Id. at 380-81.
154 Id. at 381.
155 Id. at 382.
156 See Mandatory Mediation, supra note 147, at 1093.
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157 Id. at 1093.
158 Id. at 1094.
159 See, e.g., id. at 1094.
160 Id. at 1091.
161 Joyce, supra note 114, at 457; Mandatory Mediation, supra note 147, at 1092.
162 Mandatory Mediation, supra note 147, at 1092.
163 Id. at 1094.
164 This phenomenon is especially pertinent in the context of family violence. See Wheeler, supra note 121, at 569-70 (arguing that
the mediation process may be unsuitable in the context of family violence because no mediator can identify all the possible forms
of violence and oppression between spouses, such as a certain gesture or word that arouses fear in the victim, and even the most
proficient mediator cannot balance the power relationship between the parties in such a dispute); Rachael Field, Using the
Feminist Critique of Mediation to Explore ‘The Good, The Bad and The Ugly‘: Implications for Women of the Introduction of
Mandatory Family Dispute Resolution in Australia, 20 Australian J. of Family L. 45 (2006) (presenting the feminist critique of
mandatory mediation as related to divorce and the family and arguing that mandatory mediation as a first resort may cause
injustice to women and children immediately after the couple’s separation, while conceding that mandatory mediation may have
some advantages for women (i.e., “the Good”) in addition to its many shortcomings (i.e., “the Bad,” “the Ugly”); Trina Grillo,
The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545, 1610 (1991) (adopting a more radical view, and
listing the dangers of mandatory mediation for women, particularly as related to divorce); Penelope Eileen Bryan, Women’s
Freedom to Contract at Divorce: A Mask for Contextual Coercion, 47 Buffalo L. Rev. 1153 (1999) (arguing that mandatory
mediation in divorce gives the man an additional opportunity to exert pressure on the wife, and explaining that the purported
negotiation that takes place in the mediation framework is not a true negotiation, as the wife who is afraid of losing custody loses
her ability to negotiate effectively); Loomis, supra note 118, at 355 (arguing that the imposition of mediation between spouses in
instances of domestic violence implies that violence against women is acceptable, as long as it occurs within the boundaries of the
spousal relationship).
165 See Dorothy J. Della Noce et. al., Assimilative, Autonomous, or Synergistic Visions: How Mediation Programs in Florida
Address the Dilemma of Court Connection, 3 Pepp. Disp. Resol. L. J. 11, 20 (2002).
166 Mandatory Mediation, supra note 147, at 1096.
167 See id. at 1098 (“When mediators ... attempt to force parties to settle according to their recommendations, they undermine the
consensual nature of these processes; such pressure causes parties to attempt to persuade the third party about the legal merits of
their dispute instead of focusing on the various interests underlying each legal claim”).
168 See id. at 1099 (“[T]he various codes of ethics for mediators ... should expressly forbid not only settlement coercion but also more
informal pressures.”).
169 For example, in certain mediation proceedings, the session is called a “hearing,” the disputes are called “cases,” and the parties
are known as the “plaintiff” and “defendant.” See Mandatory Mediation, supra note 147, at 22.
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170 Id. at 22.
171 Id. at 23-24 (presenting the autonomous approach to mediation under the auspices of the court in line with practice in Florida).
172 Id. at 24-25 (discussing an intermediate approach that was used in practice in Florida and solved some of those problems).
173 Caroline Harris Crowne, Note, The Alternative Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice, 76
N.Y.U. L. Rev. 1768, 1795-98 (2001).
174 See Wissler, supra note 111, at 666-67. In instances of bodily harm and monetary injuries, mediation leads to a monetary remedy
84% of the time. However, 64% of contractual cases and a significant percentage of tort cases were resolved in mediation by
non-monetary remedies.
175 See Williams, supra note 9; Dobbs, supra note 9; Keeton et al., supra note 9.
176 This point is particularly stressed by Williams, supra note 9, and Christie et al., supra note 32.
177 See Mandatory Mediation, supra note 147, at 1087, 1093 (dealing with the question of mandating participation in alternative
dispute resolution under the auspices of the court).
178 Cf. Ellman & Sugarman, supra note 37, at 1277.
179 Mandatory Mediation, supra note 147, at 1086.
180 See id. at 1102-03 (“[M]andatory ADR should be limited to one or two days to promote efficiency and to prevent undue
infringement on the trial rights of the parties. However, in exceptional circumstances, where neutral decisionmakers believe that
settlement will only occur in a longer time-frame or where the complexity of the case requires more extensive proceedings,
legislatures should allow neutral decisionmakers to extend the length of the proceedings to a week or more, subject to party
agreement”).
181 See id. at 1103 (arguing that a categorical ADR regime--i.e., a regime whereby a statute mandates pretrial ADR for certain
categories of cases--should also “include limited opt-out provisions, which allow parties to object to mediation or summary jury
trial (SJT) when their cases warrant individualized consideration,” while noting that the “the opt-out should be limited by a
judge’s ability both to deny a nonmeritorious opt-out request and to sanction parties deemed to have opted out without cause”).
182 Their suitability to other types of relationships requires a separate, extensive examination.
183 Israel, for example, has promulgated The Defamation Act, 5725-1965, 19 LSI 240, §§ 9(a)(2), 19(a) (1964-65) (Isr.).
184 See Hakkila v. Hakkila, 812 P.2d 1320, 1322 (N.M. Ct. App. 1991) (“[T]he abolition of immunity does not mean that the
existence of the marriage must be ignored in determining the scope of liability.” This argument could also apply to relations
between partners who are not necessarily married.). See also Abrams et al., supra note 1, at 369, 382-84 (explaining that in the
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United States, there is an effort to seek an appropriate balance from one case to another and from one tort to another, and
explaining that “while opening the door to private remedies through tort law, courts and legislatures have suggested that conduct
between family members should sometimes be judged by different and more forgiving standards”).
185 See, e.g., Heino v. Harper, 759 P.2d 253 (Or. 1988) (“Much is made of the fact that husband and wife live in a relationship so
close and so intimate that it guarantees that there will be incidents of negligence by the spouses on a scale unparalleled in any
other relationship of life.... Because of the nature of marital relationship, conduct that would be tortious as against a stranger
might not be tortious as against one’s spouse; considerations similar to such doctrines as consent and privilege may render
conduct between spouses nontortious”); Winn v. Gilroy, 681 P.2d 776 (Or. 1984).
186 See Beaudette v. Frana, 173 N.W.2d 416 (Minn. 1969) (noting that only excessively injurious contact or “gross abuse of a normal
privilege” will justify recovery from spouse); Lusby v. Lusby, 390 A.2d 77 (Md. 1978) (rape); Davis v. Bostick, 580 P2d 544 (Or.
1978) (physical and emotional abuse); see also Keeton, supra note 9, at 909.
187 See, e.g., Plath v. Plath, 428 N.W.2d 392 (Minn. 1988).
188 See Litigation, supra note 16, at 1661-62. But see Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978); Keeton et al., supra note 9, at
909.
189 Cf. Lewis v. Lewis, 351 N.E.2d 256 (Mass. 1976); Beaudette, 173 N.W.2d 416 (stating extremely firmly that “intimate sharing...
injurious contact [must be] plainly excessive or a gross abuse of a normal privilege.”). As I will explain below, even if there is
logic to this point of view, it is too radical and should be moderated.
190 Karp, supra note 37, at 298. It is also doubtful whether the other conditions for establishing this defense exist here. According to
the Restatement (Second) of Torts § 496A (1965), to invoke the doctrine of assumption of the risk, the plaintiff must understand
and willingly expose himself to risk, in circumstances that indicate a willingness to accept such a risk (§ 496C); the plaintiff must
be aware of the specific risk (§ 496D); the plaintiff must assess the probability of the risk of the type that occurred, unless for
some reason he accepted the risk in any event (§ 496 A, B & D). The question of when behavior is reasonable in spousal relations,
as opposed to relations between strangers, for the purpose of determining a breach of a duty of care is outside the scope of this
essay, and it should be examined separately along with the bases of the other torts. See, e.g., Ellman & Sugarman, supra note 37,
at 1302. All I propose here is that the examination must be adapted to the type of relationship.
191 Cf. Ellman & Sugarman, supra note 37, at 1277; Litigation, supra note 16, at 1653.
192 See Christie et al., supra note 32, at 545. As noted, in the United States there is a distinction between intentional torts and those
based on recklessness and negligence. Thus there is a greater inclination to accept claims based on intentional torts. For example,
as far as emotional and psychological injury is concerned, there is a tendency to accept claims based on intentional infliction of
emotional distress, while in instances of negligent infliction of emotional distress, tort claims are limited only to behavior that is
considered “outrageous.” See Neeley, supra note 11, at 704-705; Ellman & Sugarman, supra note 37, at 1274; Restatement
(Second) of Torts, § 46 (1977). See also Ellman & Sugarman, supra note 37, at 1325 (discussing the meaning of the term
“outrageous” and voicing a concern that the courts will set a standard of ideal family relations for the purposes of examining the
tort claim).
193 An interesting example (although not so typical) of a judicial determination involving the de minimis defense in a family tort
claim, in circumstances which would likely have led to a different outcome in a case between strangers, can be found in a dispute
between a father and son (Misc.Civ.App. 132254/98, Family File (Tel Aviv) 110794/97, Doe v. Roe, Tak-Mish 99(2) 207 (1999)
(Israel)). This interesting case involved an estranged father and son. The son and his fiancée sent wedding invitations that
included the father’s name. According to the father, he was deeply hurt by this, and he sued his son, his son’s fiancée, and her
parents for defamation. The case against the bride’s parents was rejected by all three courts that heard the claim (magistrate,
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district, and Supreme Court), and the case against the bride and groom was dismissed. The father then sued the couple alone for
defamation and privacy infringement. As to the charge of defamation, the court ruled unequivocally that the mention of the
father’s name in the wedding invitation by the son, not as the host but simply as a parent, did not constitute defamation or
prohibited publication. In regard to the breach of privacy, the court found that even if the father’s name on the invitation
constituted a breach of privacy, the son and daughter-in-law were entitled to the de minimis defense, since there was no doubt, in
the view of the court, that the injury was negligible. The court also took into account the son’s argument that inclusion of the
father’s name was an attempt at reconciliation with the father. It remains to be seen whether the use of a person’s name in this
way--an implication that the person was inviting others to an event for which he was not the host--would be seen as an
infringement of privacy and/or defamation in other contexts, such as commercial relations.
194 For arguments against punitive damages, see Jamie Cassels, Remedies: The Law of Damages 258 (2000); Allan Beever, The
Structure of Aggravated and Exemplary Damages, 33 Oxford J. Legal Stud. 87 (2003); Cassell & Co. Ltd v. Broome, [1972] A.C.
1027. For arguments in favor, see Conway v. INTO, [1991] 2 I.R. 305; BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). For
justification of punitive damages from the direction of effective deterrence, see A. Mitchell Polinsky & Steven Shavell, Punitive
Damages: An Economic Analysis, 111 Harv. L. Rev. 869 (1998); David F. Partlett, Punitive Damages: Legal Hot Zones, 56 La.
L. Rev. 781 (1996). The standard articulated by the Restatement (Second) of Torts §908 (1965) is “reckless indifference to the
rights of others.” In State Farm v. Campbell, 538 U.S. 408 (2003), the Supreme Court made it clear that the purpose of punitive
damages is deterrence more from the point of view of retribution than from the point of view of punishment. In State Farm, the
Supreme Court remanded a case in which the jurors had awarded the sum of $145 million and asked the lower court to award
more reasonable damages consistent with constitutional principles. The Court created guidelines under which punitive damages
should not be awarded specifically on the basis of the defendant’s economic ability, but rather the level of reprehensibility to be
attributed to the act in comparison with other reprehensible acts. See id. at 604. Such punitive damages are to be awarded, in the
view of the Court, when the guilt is “so reprehensible as to warrant the imposition of further sanctions.” Id. at 602. However,
there are some problems with this transition to the rationale of retribution. Retribution should be act-dependent, rather than
outcome-dependent, unlike the usual structure of tort law, which, apart from instances of compensation without proof of harm,
imposes liability only if harm has been caused, and not as retribution for the tortious act if it does not indicate a complete tort.
Even when the harm has occurred, there is not always a relationship between the seriousness of the act and the extent of the harm.
This requires a more extensive discussion than is appropriate here.
195 Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 1208 (Can.); Kuddus v. Chief Constable of Leicestershire
Constabulary [2001] UKHL 29, [2002] 2 A.C. 122 (U.K.); BMW of N. Am., Inc., 517 U.S. 559.
196 Khodaparast v. Shad, [2000] 1 W.L.R 618 (U.K.); Vorvis v. Insurance Corp. of British Columbia [1989] 1 S.C.R. 1085 (Can.).
197 See, e.g., Curtis v. Firth, 850 P.2d 749 (Idaho 1993) (as a remedy for physical and emotional abuse of a life partner); Cater v.
Cater, 846 S.W.2d 173 (Ark. 1993) (as a remedy for severe battery of the wife).
198 Some courts have awarded punitive damages even in cases of negligence. See Lamb v. Cotogno (1987) 74 A.L.R. 188 (Austl.); A.
v. Bottrill [2002] UKPC 44 (New Zealand); Coughlin v. Kuntz (1989) 42 B.C.L.R. (2d) 108; Philip H. Osborne, The Law of Torts
104 (2000); Francis Trindade, Peter Cane, The Law of Torts in Australia 530 (3rd ed. 2001); Andrew Phang & Pey-Woan Lee,
Exemplary Damages - Two Commonwealth Cases, 62 Camb. L.J. 32 (2003).
199 Regarding contractual claims, see Christie et al., supra note 32, at 544-45; Litigation, supra note 16, passim. Regarding property
claims, see Litigation, supra note 16, at 1654.
200 Dobbs, supra note 9, at 21.
End of Document
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