Page:Harvard Law Review Volume 8.djvu/394

378 378 HARVARD LAW REVIEW. The general question here is, What are the features of the various kinds of harm which give rise to different problems, and therefore point out different lines of division? In this field of Tort, we have, of course, a number of different harms well recog- nized and defined. The juristic problems of to-day (excluding mere detailed applications of accepted principles) are here chiefly to determine the scope of particular well-established harms so as to develop them in accordance with to-day's conditions, and to indicate the proper analogies to be employed in ruling upon newly offered varieties of harm. Of the former, an illustration is found in the claim by a wife for the seduction of a husband ; of the latter, in claims based on the so-called right of privacy. In attempting to group the topics, therefore, we should set together those varieties of harm with reference to which the same or similar doubts and difficulties arise, and the same or similar policies may come into consideration. Taking up first the harms which concern the person, and, among these, physical injuries — being those which may be regarded as jurally the most fundamental and historically the earliest and gravest, — I. We find among these at the outset that so-called " technical " battery, having a traditional origin but still a living justification for existence, — a mere touching. This is one example of what may perhaps be uncouthly termed " prophylactic " rights. In these it is conceded that no demonstrable harm is done, and nomi- nal compensation alone is allowed, but yet on grounds of policy we desire to protect stringently by a kind of outpost-right; we therefore (as in battery, in trespass generally, in libel and partly in slander, in statutory patent-right, copyright, and trademark- right) make specific conduct actionable because (perhaps) we believe it to be so commonly followed by substantial harm that it would be practically too burdensome to require in each case an investigation into the details of harm ; we accordingly protect the claimant at the very threshold of an important personal or property interest. We may take it that the action for a mere touching is one which, for some such reasons, no one would to-day move to abolish. The only problems involved are as to the extent of the sphere of protection thus specially sanctioned — whether it includes the clothes, articles carried, animals driven or led, etc.