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122 Colum. L. Rev. Forum 110 (2022)
Shadow Tort Law: Lessons from the Reptile

handle is hein.journals/sidbarc122 and id is 110 raw text is: COLUMBIA LAW REVIEW FORUM VOL. 122 OCTOBER 28, 2022 PAGES 110-26 SHADOW TORT LAW: LESSONS FROM THE REPTILE Kenneth S. Abraham* For over a decade, a battle has been raging in the trial courts of this country over something called the reptile theory, often simply referred to by insiders as the reptile. The term comes from Reptile: The 2009 Manual of the Plaintiff's Revolution.1 The book's thesis is that the way for plaintifs to win tort cases and secure large verdicts is to appeal to the reptilian part of jurors' brains, which (like threatened snakes) reacts with anger at threats to their security.2 The authors urge plaintiffs' attorneys to focus on generating anger at the defendant, as distinguished from sympathy for plaintifs, so that jurors will perceive the defendant's conduct as a threat to their own security and the security of their community. Opponents of the reptile contend that plaint/fs' attorneys unjustifiably create this reaction by subtly modifying the applicable standard of care in negligence cases.' At the core of the reptile battle, then, is a dispute about the meaning of negligence. And that battle is taking place largely outside the purview of the appellate courts. It is governed by what I will call shadow tort law.' INTRODUCTION The reptile has been invisible or barely visible to torts scholars.' This is largely because its use is governed by a body of trial-level substantive tort * David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law. 1. David Ball & Don Keenan, Reptile: The 2009 Manual of the Plaintiffs Revolution (2009) [hereinafter Ball & Keenan, Reptile]. 2. See id. at 17-18 (So in trial, your goal is to get the juror's brain out of fritter mode and into survival mode. You do this by framing the case in terms of Reptilian survival.). 3. See Tyler J. Derr, Recognizing and Defeating the Reptile: A Step-by-Step Guide, 3 Stetson J. Advoc. & L. 29, 32 (2016) (explaining how the reptile privileges appeals to emotion over arguments establishing a breach of the standard of care). 4. The term is, of course, derived from references to the United States Supreme Court's shadow docket, but in this instance the shadows are at the trial, not the appellate, level. See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 125 (2019) (describing the United States Supreme Court's shadow docket as the significant volume of orders and summary decisions that the Court issues without full briefing and oral argument). 5. Although it is impossible to know the state of torts scholars' awareness with cer- tainty, what they publish is some, and arguably pretty probative, evidence. A recent Westlaw 110