Ethereal vs tangible

This Article focuses on one aspect of the increasing uncertainty in tort law, termed "ethereal" or "ephemeral" substantive torts: causes of action for intangible or emotional injuries or deprivations of expectancy or reliance interests, the privacy torts, infliction of emotional distress, breach of confidence, breach of good faith, interference with economic expectancies, loss of a chance, or loss of choice.

It traces the increasing "etherealization" of tort law over the past several hundred years: the movement of tort law historically from compensating only direct and tangible personal injury and property harms to the relatively modern compensation of emotional and expectancy interests.

It also discusses how advances in science, technology, and epistemology created many of the hazards giving rise to ethereal injuries and made possible the evaluation of their impacts. Jurisprudential influences from multiple divergent areas emphasized the importance of acknowledging probabilistic and relational injuries. Several barriers remain, however, that prohibit the full compensation of ethereal torts.

The principal impediment to recognition of emotional and probabilistic injuries is the devaluation of those types of injuries by society and courts. A number of institutional forces keep ethereal injuries from being fully recompensed. As new interests become legally cognizable claims, the tensions of the common law adjudication process-between the individualized goal of compensatory justice and the systemic goal of predictability in law-result in the dismissal of many meritorious claims.

Although there is an attempt to confer predictability and legitimacy on new torts with the specification of particular elements, often the elements are inelegantly or too restrictively framed to capture the essence of the tort. On the institutional level, the judicial forum has been particularly unreceptive to tort claims established by evidence from the sciences and social sciences.

Part of the unwillingness to accept fully social science evidence supporting ethereal torts relates to the structure of the trial court decision-making process. They both are paradoxical entities, whose untypical substance allows them to be an invisible presence. In the same way, they undergo a process of gradual substantiation to become temporarily available to perception.

Finally, they both haunt us. Ghosts, as Derrida would have it, with the secrets of past generations. Hertzian space, with the frustration of interference and slowness. But it is these same traits of Hertzian Space that affords the potential for a spatially rich interaction with information systems, one that more closely resemble the interaction with real architecture. The challenge however lies in how to design with systems that are fundamentally invisible.

Within the area of interactive design, there has been a rich body of work tackling the political and social issues that arises from invisibility of technology. Arnall, Knutsen and Martinussen from the Touch Research project have created one of the most influential works in this, introducing the use of long-exposure photography and RSSI sensors to visualise and spatialise WiFi networks in Lightpainting WiFi.

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