Professors D’Onfro and Hwang’s new article, Tortious Interference Revisited, brings the reader almost up to date on the nature of tortious interference and, in doing so, adds to each of their impressive contributions to contract scholarship. I use the word “almost” in the title and the first sentence here advisedly because the final paragraph of their article calls “for more sophisticated empirical treatments” (P. 54) of the subject and announces their intention to investigate recent cases.
Still the reader can learn a lot about tortious interference with contract and with other business relationships and opportunities (as do D’Onfro and Hwang, I will refer to the subject matter, often treated as separate torts, singularly as “tortious inference”). Relying on cases and secondary literature, the article offers numerous insights into the nature of and issues engendered by tortious interference.
The article begins with a brief history of the tort and follows with a rich analysis of its development. Perhaps motivating the authors to write this article, they observe that the frequency of tortious interference cases has recently “exploded” (P. 7) and they supply interesting examples of the tort’s recent usage. In simplified form here, these include in corporate debt cases, where a debtor breaks a pledge not to take on additional debt and liability focuses on a third party influencer, employment at-will and non-compete cases, where courts recognize a duty in third parties not to interfere, and Title IX harassment cases, where a party accused of sexual misconduct in an educational setting brings a tortious interference action against a university administrator.
The authors also isolate and respond in helpful detail to general issues raised by tortious interference, such as the tort’s many ambiguous elements and whether the cause of action is efficient and necessary. For example, the tort’s tension with the beneficial goal of competition leads to a discussion of whether the tort must be malicious or merely a lesser impropriety. As for efficiency, by deterring a prospective employer from making a competitive offer to an employee of another firm, for example, tortious interference interferes with the possibility of an efficient breach. In response to whether the tort is superfluous, the authors raise the issue thusly: “A harmed plaintiff can claim against the breaching party and can already be made whole in contract, so why should they have the right to sue an unrelated third party for even more damages in tort?” (P. 3.)
But the authors see the value of the tort as well. Tortious interference justifiably benefits an injured party if their immediate wrongdoer is judgment proof or able to avoid service of process. The tort also allows for injunctive relief before the harm occurs. Further, some scholars have argued, correctly in my view, that “tortious interference is consistent with tort theory generally . . . and not a made up or inherently redundant cause of action.” (P. 19.) After all, the “common thread” in tort cases “is the idea of unreasonable interference with the interests of others.”1 In response to the alleged redundancy of the remedy, the authors could have added that the availability of punitive damages and other tort remedies ensures that the tort consists of a “safety valve that relieves the pressure on contract to punish bad behavior.”2 I would also urge that eliminating the tort because of the range of difficult issues it raises would cast doubt on the wisdom of much of private common law.
Perhaps the most intriguing aspect of Tortious Interference Revisited is its framework for analyzing the tort. The authors observe that the tort contributes to the larger theme of third parties’ interests in contracts: “[I]f third parties can have an interest in other people’s private contracts, then those third parties might sometimes also incur liability because of those same contracts.” (P. 25.) Drawing on two articles, co-authored by Professor Hwang, which emphasize that “the private law of contract is not wholly private” and that “private law affects the public,” (P. 27) Tortious Interference Revisited argues that the tortious interference is the “flip side” of doctrine that enables third parties to express their interests in others’ private contracts. In sum, if third parties have some rights arising from private contracts, they may have some liabilities as well.
This framework sheds helpful but modest light on tortious interference. The authors note that third-party interests and rights are limited in the courts and in scholarly articles on these rights. Accordingly, their framework calls for “keep[ing] tortious interference analogously modest” as well. (P. 28.) The article therefore suggests a series of limitations on the doctrine. For example, as noted above, tortious interference currently extends beyond contract to interference with business or economic opportunity claims. However, the authors suggest limiting the interference tort to contracts to create a much cleaner bright line. In addition, the authors note that a requirement of actual malice would help clarify the distinction between the right to compete and the duty not to interfere. Further, the authors sometimes prefer alternative strategies instead of tortious interference. For example, to ensure that a sexually harassed employee who has agreed to arbitration of employment disputes has her day in court against an harasser, the authors point to Federal law barring enforcement of arbitration agreements in the context of sexual harassment claims by employees.
Of course, the relationship between tort and contract has a long and challenging history. Think, for example, of the debate over the differences between strict tort and the implied warranty of merchantability (are the terms “defective” and “unmerchantable” identical?),3 of the consternation over when a contract performance is sufficiently egregious to be tortious,4 and of Gilmore’s observation that “‘contract’ is being reabsorbed into the mainstream of ‘tort.’”5 D’Onfro and Hwang have done an admirable job bringing back tortious interference into the mainstream of recent scholarship. If the authors do pursue additional research on the subject, as they intimate they might, perhaps broadening their scope to include more on the relationship between tort and contract would yield additional insights into the meaning of tortious interference.
- W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 1, at 6 (5th ed. 1984).
- Robert A. Hillman, Principles of Contract Law 250 (5th ed. 2023).
- See, e.g., Denny v. Ford Motor Co., 42 F.3d 106 (2d Cir. 1994).
- See, e.g., Mauldin v. Sheffer, 150 S.E.2d 150 (Ga. Ct. App. 1966); Keeton et al., supra note 1, § 92, at 662 (“The question appears to be rather whether the defendant’s performance, as distinct from his promise or his preparation, has gone so far that it has begun to affect the interests of the plaintiff beyond the expected benefits of the contract itself . . . .”).
- Grant Gilmore, The Death of Contract 87 (1974).
