Jacob Smith ‘23
Professor Liason Editor
What does tort law have to do with reptiles? “The reptile,” or “reptile theory,” is how tort practitioners refer to a plaintiff-side strategy that, strangely enough, encourages plaintiff’s counsel to treat jurors like reptiles. If you, an intelligent member of the law school community, have never heard of it—well, that is what this column is about. Professor Kenneth S. Abraham’s new paper, “Shadow Tort Law: Lessons from the Reptile,” explores the reality that reptile theory has received little attention in appellate courts and tort scholarship, despite being infamous among tort practitioners. In Professor Abraham’s words, the reptile is a creature of “shadow tort law,” law that exists primarily at the trial level and is easy for tort scholars to overlook.
The reptile strategy can be described as an effort to reduce the jury to their animal instincts for physical safety. Disciples of the reptile seek to frame the defendant as a threat to the community that the jury must protect themselves against. The herpetological label comes from a book called Reptile: The 2009 Manual of the Plaintiff’s Revolution.[1]Professor Abraham describes the book as arguing that tort plaintiffs can win big by “appeal[ing] to the reptilian part of jurors’ brains, which (like threatened snakes) reacts with anger at threats to their security.”[2] In practice, disciples of the reptile try to raise the stakes of a tort case. Instead of focusing on the facts of the plaintiff’s individual injury, the plaintiff’s lawyers want to make the case about the devastating harm that the defendant’s practices could have inflicted on the community, including the jurors and their families.
Defense lawyers generally view the reptile as an illegitimate distortion of the appropriate legal standard. The reasonableness of the conduct that caused the plaintiff’s injury is what matters—the defendant’s conduct on other occasions is irrelevant. The jury is not supposed to see itself as a guardian of society or to put itself in the plaintiff’s shoes. And the jury should not think that safety is the only thing that matters. The standard is “reasonable care,” not “perfect safety.”
However, the point of Professor Abraham’s paper is not to describe the reptile. Plenty of practitioner articles do that already. The point is that the reptile is not well-known among tort scholars, the people who make it their vocation to study the law of torts, despite being well-known among practitioners. Based on an informal survey of his colleagues, Professor Abraham concluded that most tort scholars “have never heard of the reptile.”[3] Upon asking Professor Abraham how this could be, he explained that there is a gap between the “law on the books” and the “law in practice.” Law professors generally do not read practitioner materials, and practitioners generally do not write law review articles. Further, as Professor Abraham describes in his paper, there are a number of reasons why “reptile” issues may not be appealed, from harmless error doctrine to page limits on briefs.[4]
Professor Abraham wants us to treat our juries like this fabulous creature here.
Professor Abraham concludes that studying shadow tort law (like the reptile) can lead to a “richer” and more complete understanding of tort law.[5] My biggest takeaway from the paper was that, somewhat surprisingly to me, there is a significant knowledge gap between practitioners and the academy in at least one area of law. Moreover, in economic terms, we might think of this gap as offering an opportunity for arbitrage—for well-rounded law professors, lawyers, and law students to gain an edge by transplanting ideas from one realm to the other.
Practitioners can benefit from closing the gap because judges have a foot in academia. They tend to be well-read in legal theory and occasionally cite to law review articles, so a persuasive law review article could conceivably make a difference in motions practice or on appeal. For example, as Professor Abraham points out, tort theorists have argued that tort law is supposed to reflect the conscience of the community and send a message to defendants, but lawyers are generally not allowed to argue those purposes to the jury.[6] A law review article targeted at that discrepancy could conceivably make judges slightly more tolerant of reptile-type arguments.
Similarly, law students and professors can gain insights and paper ideas by looking to practitioner-side developments. (Newsletters from Bloomberg or the ABA may be a good place to start.) To close on an intensely practical point, the neglected reptile could make for a great note topic. It has received little attention in legal scholarship, but its ties to psychology, sociology, evidence, and tort law in general deserve further investigation.
---
js3hp@virginia.edu
[1] David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009).
[2] Kenneth S. Abraham, Shadow Tort Law: Lessons from the Reptile (forthcoming) (manuscript at 1) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4042230).
[3] Id. at 3.
[4] Id. at 16-17.
[5] See id. at 17-18.
[6] See id. at 13-14.