Tort as a Disrupter of Cultural Manipulation: Neuromarketing & the Dawn of the E-Cigarette

At least since the 1920s, corporate actors have acquired an increasingly greater capacity for actions that can harm individuals throughout the nation, and even the world. This has resulted to a significant extent from their abilities, on the one hand (1) to present more serious risks to large numbers of people through the use of often quite astounding scientific and technological developments and the mass-marketing of products; and (2) to exercise significant control over public perceptions of their products and other business activities through highly sophisticated advertising and other “public relations” campaigns. As a result of these two developments, many corporate actors have amassed significant power and influence over our environment and our choices about what we consume and use on a regular basis. In this article, I focus on (1) one method by which companies are trying to influence public perception of their products: so-called “neuromarketing,” a new interdisciplinary field that that aims to tap into the human mind as directly as possible by using sophisticated technological developments in neuroscience and cognitive science; and (2) one increasingly popular product that presents risks to human health; namely, electronic cigarettes (or “e-cigarettes”), which are battery-powered devices that vaporize liquid nicotine and other undisclosed chemicals, allowing users to inhale (or “vape”) the mixture. I argue that, in this post-industrial era of widespread human threats presented by products and other business activities, such as e-cigarettes, and of companies’ concomitant ability to obscure these dangers and induce people to use their products by manipulating societal cognition through techniques such as neuromarketing, tort law serves what I call a “disruption function.” This function is in addition to the two competing ideas about the primary function of tort: (1) imposing a fair result on disputing individuals (moral function); and (2) making public policy efficient (instrumental function). The first fulfills a private need; the second, a public one. Judges and scholars tend to favor one over the other, and that preference has driven outcomes in certain kinds of legal disputes, like those involving federal preemption of state tort law. But this dichotomy of tort functions overlooks a third function of tort law — the disruption function — which serves both a private need and a public one. More specifically, the tort system provides a much-needed “space” away from pervasive corporate manipulation of societal cognition. This space permits society — represented by litigants, judges, and juries — to examine closely and consider whether corporate activities should be subject to some legal oversight in a given case after hearing the story of the occurrence of the particular harm or harms relatively free of the “noise” of the corporate cognitive manipulation that so often pervades society and culture. Finally, I explain how the traditional “tort function” dichotomy underlies many of the calls for limiting the tort system and that the third, hybrid “disruption” function must be recognized if the tort system is to remain viable in the current era of expansive corporate activities that can cause widespread harms, particularly if neuromarketing and other increasingly sophisticated techniques for manipulating societal cognition regarding products that present significant risks to human health, such as e-cigarettes, are as successful as the business literature indicates that companies hope them to be.