A Missing Piece of the Puzzle of the Dignitary Torts

Abstract

This essay responds to Kenneth S. Abraham and G. Edward White’s The Puzzle of the Dignitary Torts, 104 CORNELL L. REV. 317 (2019), which identifies a puzzle: despite the value that our society purports to place on dignity, tort law’s dignity-protecting function has been little explored. As Professors Abraham and White explain, dignitary torts have withered in the face of legal scholars’ disinterest and the Supreme Court’s vigorous wielding of the First Amendment. Abraham and White conclude that the concept of dignity has lost its legal bite. While their account is compelling, it misses a piece of the puzzle. Some dignitary torts did not disappear, but rather came to be adjudicated under public accommodations statutes and ordinances. These laws ensure full and equal access to places open to the public and provide remedies to individuals who face mistreatment based on a protected trait such as race or religion. Although statutory in form, these remedies are closely linked to the dignitary torts in history and doctrine. They continue to give legal force to dignity, even as common law torts have receded. Abraham and White’s account of the demise of the dignitary torts nonetheless offers a cautionary tale for public accommodations law. Although public accommodations laws largely have survived constitutional attack, they increasingly seem vulnerable to free speech and free exercise claims. As with the common law torts Abraham and White discuss, lawmakers and courts often fail to specify the interests at stake when they emphasize the dignity-protective function of these statutes. To engage with new constitutional challenges to these laws, scholars must identify the constitutive elements of dignity as a social and legal concept more thoroughly. Building on Professors Abraham and White’s work to disentangle the distinct meanings of dignity within tort law, this essay takes some tentative steps in that direction within public accommodations law.