Accounting for Incidental Benefits From Malefactors (Florida Slavery Edition)

In my latest Verdict column, I discuss the new middle school social studies standards in Florida, which include the following: “Instruction includes how slaves developed skills which, in some instances, could be applied for their personal benefit.” I go into some detail explaining why, even if Governor Ron DeSantis is correct that this statement is factually accurate (and that's debatable), that's hardly a justification for teaching schoolchildren that slavery had upsides for some of the people enslaved. After a comment on terminology, I'll take seriously a question that the standard could raise if it weren't so grotesque.

As in the quotation above, so more generally, the document uses the term "slave" rather than the currently more acceptable term "enslaved person." I suspect that's because, as ground zero of anti-woke fervor, Florida doesn't abide any updating of language to address current sensibilities. That strikes me as especially dogmatic.

Sometimes people update language because prejudice infects a term that is not inherently stigmatizing. I discussed that phenomenon in a 2010 essay, giving the example of the shift from "handicap" to "disability." I regard it as churlish to resist such transitions even in these circumstances. People outside a group should respect the wishes of those in the group regarding how to describe the latter.

But in any event, the shift from "slave" to "enslaved person" is not simply the substitution of one equivalent term for another. It recognizes that people should not be defined by the way in which others victimize them or--as in the shift from "the mentally ill" to "persons with mental illness"--by afflictions from which they suffer. By using the noun "person" as the center of the description, we recognize that no one's identity is enslavement or mental illness. Enslavement is what was done to people, not who they were.

So much for language. Now onto the key question for today. The Florida standard is grotesque in suggesting that the skills an enslaved person might learn in virtue of their forced labor count for more than the weight of a feather as against the injustice of enslavement. However, we can imagine cases in which a malefactor--let's call him "Defendant"--inflicts harm on a victim--whom I'll call "Plaintiff"--but in the process sets in motion a chain of events that confers a net benefit on the Plaintiff. 

Suppose that Defendant recklessly drives drunk and strikes Plaintiff, a pedestrian, necessitating a trip to the emergency room, where medical staff triage Plaintiff and conclude that Plaintiff needs a dozen stitches and some painkillers but is otherwise not seriously injured. While in the waiting room, Plaintiff chats with Visitor--who lives a thousand miles away but was taken to this particular hospital after falling while ice skating and breaking their wrist. Because neither Plaintiff nor Visitor has life-threatening injuries, they each spend a couple of hours in the ER waiting room before being seen. During that time, they forge a bond and remain in touch via text for the next few weeks until, as it happens, a business trip takes Plaintiff to Visitor's hometown. They meet for dinner. One thing leads to another and a year later, they are married.

Meanwhile, Plaintiff sues Defendant (or perhaps Plaintiff's insurance company sues Defendant's insurance company) for the several thousand dollars (ambulance, hospital treatment, etc.) associated with Plaintiff's trip to the ER. Can Defendant successfully defend on the ground that, far from harming Plaintiff, Defendant's tortious driving conferred a benefit? After all, the collision was a but-for cause of the ER trip, without which Plaintiff would not have met Visitor, and meeting Visitor--the love of Defendant's life--is worth much more than several thousand dollars to Plaintiff.

With this example, I hope to provoke the intuition that of course Defendant can't invoke Plaintiff's romantic benefit to offset the harm caused by Defendant's tort. Indeed, under the traditional common law "collateral source rule," even if the benefit is much more closely related, the Defendant is still on the hook. Thus, even if Plaintiff's medical bills are covered by Plaintiff's own insurance, Plaintiff can still recover from Defendant. To be sure, the terms of the insurance contract might require subrogation, thus vitiating double recovery, but that's not part of the traditional tort law itself. And where--as in my hypothetical example--the collateral source is wholly unrelated, there's no reason at all why Defendant should be able to invoke the resulting benefit.

Why not? We might think of the problem as one of unclean hands. Or we might think of it as one of proximate cause.

Suppose that instead of meeting Visitor in the ER, Plaintiff meets Inventor/Entrepreneur, who pitches a new product; Plaintiff is intrigued and invests $500 in I/E's startup; the product is a spectacular hit; the company eventually goes public; and the initial investment grows to be worth $50,000. Defendant cannot invoke Plaintiff's investment gain to negate liability, because Defendant's reckless driving does not stand in the right kind of a causal relationship to the investment.

Lawyers who remember puzzling over the Palsgraf case and the elusiveness of proximate causation as 1Ls may not be able to provide a complete account of where the boundary of proximate cause lies, but they will have no difficulty seeing that the successful investment in I/E's company falls outside that boundary.

But apparently not all lawyers. Ron DeSantis has described his three years at Harvard Law School as "indoctrination" in "leftist ideology." Perhaps his belligerent attitude towards his legal education explains why he not only failed to become a Marxist at Harvard but also failed to absorb the most basic principles of legal causation. Or perhaps he's just a troll.