From: Gregory C. Keating <>
To: volokh <>
Date: 08/07/2022 16:00:49 UTC
Subject: RE: McKinsey identifying dissident for Saudi government isn't negligent

Wouldn’t McKinsey be more like the bar than the social host? The Third Restatement’s justification for not imposing social host liability is that valuable, non-commercial, social relations would be chilled by the imposition of liability. That justification doesn’t apply to a commercial establishment. Maybe it’s just me, but “chilling McKInsey” sounds like a social good! 😊 Less flippantly, they fall on the commercial bar side of the line.  


Gregory Keating | USC Gould School of Law
Pronouns: he/him/his
William T. Dalessi Professor of Law and Philosophy
University of Southern California | 699 Exposition Blvd, Los Angeles, CA 90089-0071
Tel: 213-740-2565 | Fax: 213-740-5502 | |

USC Gould School of Law


From: Volokh, Eugene <>
Sent: Friday, July 8, 2022 8:23 AM
Subject: RE: McKinsey identifying dissident for Saudi government isn't negligent


I wonder whether the right concept might be duty, or more precisely a no-duty rule stemming from public policy.  The defendant’s actions did foreseeably cause the harm to the plaintiff, but for various reasons we may conclude that they should nonetheless be immune.


That’s how, I think, we conceptualize the American rule against social-host liability – for public policy reasons, we don’t want to put ordinary people in a position where they have to police their guests’ alcohol consumption.  Likewise, there might be similar public policy reasons why we don’t want to stop people from telling their friends about events in their and their friends’ lives, even when they know the friends may get angry and injure someone as a result.


This is also where, at least in American law, free speech concerns can be included in the torts framework (as opposed to just being constitutional trumps against what would otherwise be a successful tort claim).  Here’s an excerpt from the comments to the Restatement (Third) of Torts: Physical & Emotional Harm sec. 7 that I think articulates the analysis well, and avoids the what strikes me as mistaken foreseeability focus in the Second Circuit decision (or perhaps in the New York caselaw on which it relies):


Comment a. The proper role for duty.... [I]n some categories of cases, reasons of principle or policy dictate that liability should not be imposed....


For example, a number of modern cases involve efforts to impose liability on social hosts for serving alcohol to their guests. A jury might plausibly find the social host negligent in providing alcohol to a guest who will depart in an automobile. Nevertheless, imposing liability is potentially problematic because of its impact on a substantial slice of social relations. Courts appropriately address whether such liability should be permitted as a matter of duty....


[Likewise], courts hold that landowners are free of negligence liability to some trespassers. In a different vein, courts have been cautious about imposing liability on physicians when their care for patients causes harm to third parties....


Comment c. Conflicts with social norms about responsibility. In deciding whether to adopt a no-duty rule, courts often rely on general social norms of responsibility. For example, many courts have held that commercial establishments that serve alcoholic beverages have a duty to use reasonable care to avoid injury to others who might be injured by an intoxicated customer, but that social hosts do not have a similar duty to those who might be injured by their guests....


No-duty rules are appropriate only when a court can promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases....


Comment d. Conflicts with another domain of law. In some cases, negligence-based liability might interfere with important principles reflected in another area of law.... [For instance], no-duty and limited-duty rules in cases involving owners and occupiers of land are influenced by issues that are important in property law. In cases alleging physical harm caused by the content of a publication by a media defendant, some courts have relied on First Amendment concerns in finding that media publishers have no duty or a limited duty. No-duty and limited-duty rules in tort help police the boundaries between these various areas of law.


Comment f. Institutional competence and administrative difficulties. Sometimes a particular category of negligence claims would be difficult for courts to adjudicate. Courts may have difficulty gathering evidence or drawing doctrinal lines necessary to adjudicate certain categories of cases. These administrative concerns may support adopting a no-duty rule.


For example, when a plaintiff claims that it is negligent merely to engage in the activity of manufacturing a product, the competing social concerns and affected groups would be appropriate considerations for a court in deciding to adopt a no-duty rule....


Comment i. No duty and no negligence as a matter of law.... [A] court may take into account factors that might escape the jury’s attention in a particular case, such as the overall social impact of imposing a significant precautionary obligation on a class of actors. These cases are properly decided as duty or no-duty cases....


Thus, ... courts have declared that the warning obligation of prescription-drug manufacturers ordinarily is limited to the prescribing physician and does not extend to warning the patient directly. They reason that the physician can best assess the relevant risk information and determine the appropriate course of treatment. When appropriate, the physician can inform the patient of means by which the patient may minimize the risk of adverse side effects. The physician may also, in appropriate situations, consult with the patient as required by the informed-consent doctrine.


Courts have, through this duty limitation, made a categorical determination that having manufacturers provide safety information to physicians, rather than to patients, is the appropriate manner for minimizing the costs of adverse side effects. Such a categorical determination also has the benefit of providing clearer rules of behavior for actors who may be subject to tort liability and who structure their behavior in response to that potential liability....


This having been said, I’m still not sure what the right approach as to this no-duty question should be in the McKinsey / private detective cases that we have been discussing.







From: Donal Nolan <>
Sent: Friday, July 8, 2022 4:31 AM
To: Robert Stevens <>; Volokh, Eugene <>;
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent


I think we basically agree and the difference is largely semantic. I suppose I have in mind ideas of causal responsibility that also underlie the cases on negligent intervening acts/doctrine of novus actus. In a case where the defendant negligently creates a danger and the claimant then recklessly exposes themselves to that danger and suffers damage the courts sometimes say that the defendant is not liable because the sole legal cause of the damage was the claimant’s reckless conduct. Same with negligent third party interveners. It would be strange if similar logic didn’t apply to deliberate third party interventions.


And the problem if you drop causation as an explanatory concept here is that you then have to rely on some other concept or on mere assertion. In your case it seems to be an idea of ‘doing’, but what does that mean? Why was it ‘their doing’ in the case of the child but not in the case of the psychopath? You say because in one case the person who was the immediate cause of the harm was not responsible (for their physical action) and in the other they were. I agree. Traditionally the law has packaged those ideas in the language of causation and I think that is a perfectly sensible thing to do. But as I say I think this boils down to semantics in the end.


All best




From: Robert Stevens <>
Sent: 08 July 2022 11:56
To: Donal Nolan <>; Volokh, Eugene <>;
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent


I am not sure whether the language of “causation” captures what we’re trying to say, not least because the term is slippery. Some use it to mean “responsibility”. Still others expand it to cover mere “contribution.”


In all of these cases, but for the defendant’s action the result would not have occurred. In all of them, the defendant had responsibility, in some sense, for what occurred.


The language of wrongs and injury seems to me to capture the idea more clearly.


If you’re shot by a five your old child with a gun, what was the wrong you suffered? You were shot. But the five year old wasn’t the one responsible for that, the person who gave him the gun was. It was their doing.


From: Donal Nolan <>
Sent: 08 July 2022 11:26
To: Robert Stevens <>; Volokh, Eugene <>;
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent


The language of ‘injury’ here seems obscure to me, but if we focus not on the action but on the end result that grounds the claim (ie the damage, physical ‘injury’, etc) then I think this boils down to a causation argument (the defendant did not commit a wrong because in some sense the defendant didn’t cause the damage). I agree with that. And I think it explains why the defendant is a wrongdoer if they give the gun to a young child, who is not responsible for their actions. But it does need to be explained, even if it is difficult.


All best





From: Robert Stevens <>
Sent: 08 July 2022 11:09
To: Donal Nolan <>; Volokh, Eugene <>;
Subject: RE: Kinsey identifying dissident for Saudi government isn't negligent



“Presumably those Rob puts in the Donoghue/MacPherson camp think that there are two wrongs in some cases of this kind even though there was no assumption of responsibility, and it is not self-evident (to me anyway) why that is not the case.”


If we think (as some do) that the wrong/tort is constituted by exposing others to the risk of injury, then the social host, the gun seller and McKinsey all committed a wrong. As did the driver, shooter and Saudi government.


If we think the wrong/tort is constituted by the injury (being run over, being shot etc) that gives us a different answer, as the social host, gun seller and McKinsey didn’t do those things. Rather, they did something that caused someone else to do those things.


On either view, there may be another kind of wrong constituted by the breach of an assumed duty to take care.


Whether torts are wrongs at all (many academics at least purport to think that torts can’t be defined or are liability formulas or something else) and what those wrongs are constituted by are Big Difficult Questions.