Waiver of Tort: A Potential Sea Change in Class Action Law

AuthorKit Scotchmer
Kit Scotchmer
Abstract: There is much confusion surround ing the “waiver
of tort” doctrine, and whether it should be understood as a
separate cause of action. I arg ue that waiver of tort should be
recognized as a c ause of action, but only in the clas s action
context. While clas s actions are thought of as purely procedur-
al amalgamat ions of conventional actions, here is poss ibly the
f‌irst substantive adva nce in the law of class act ions. As there
are three sens es of term “waiver of tort”: as a claim for rest itu-
tionary da mages for wrongful conduct, as ext inctive ratif‌ica-
tion of an ex post facto agent’s unauthorized conduct, and a s an
unjust enrichment cla im brought in lieu of a tort claim, I wi ll
set out which sense of the term I a m using and what the cla ss
action context adds to the debate. I contend that t he policy
considerations underlying the Class Proceedings Act are cur-
rently being used to ef fect remedies very much like t he rem-
edies a waiver of tort cause of act ion would provide for. After
setting out the argument s for recognizing waiver of tort i n the
class action context, a nd responding to some of the practic al
and theoretical problems th at recognition of this inchoate doc-
trine rai ses, I conclude that the clas s action context provide s a
special ca se where forcing the tortfeasor to d isgorge the gains
from his wrongfu l conduct, regardless of whether the plaintiff s
can prove injury, is entirely appropriate.

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