The Physical-Emotional Distinction in Tort

Abstract

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional distinction should clarify that they neither endorse dualism nor depreciate emotional harm; (2) because judicial expertise may not extend to the task of drawing lines between legally cognizable and non-cognizable harm, judicial performance in this area may be more adequate than critics suggest; and (3) although it may not be possible to determine the optimal way of drawing lines between legally cognizable and non-cognizable emotional harm, moral-philosophical tools such as Rawlsian and Scanlonian contractualism may be able to identify partial or pro tanto considerations for choosing among different ways of doing so.