The task is to interpret and apply RICO in harmony with its statutory and common-law cousins by using certain baseline assumptions and common linguistic understandings, including concepts like “injury” and “causation.” And this requires no great analytical leap, as many courts and commentators have demonstrated.

When we left off last time, we were considering the interpretative dilemma facing the Supreme Court in Medical Marijuana v. Horn with respect to civil RICO’s injury to business or property requirement. The majority and minority essentially staged a dueling dictionaries battle, one that is ultimately unsatisfying.

The majority’s misconception of Section 1964(c) resides in a category error—namely, in the assumption that civil RICO is something other than a tort. To be sure, civil RICO is not coterminous with any particular common-law tort, but that does not mean that that it is an entirely different genus and species. (Common-law fraud and wire fraud have different elements to be pled and proven, but both are still “fraud.”) So the question is not—as the majority contends—whether a court can “match the alleged facts with a particular business or property tort” or find a “particular tort [that] squarely governs the facts of the case.” Rather, the task is to interpret and apply RICO in harmony with its statutory and common-law cousins by using certain baseline assumptions and common linguistic understandings, including concepts like “injury” and “causation.” And this requires no great analytical leap, as many courts and commentators have demonstrated.

It’s worth noting that treating civil-standing provisions that are bolted onto criminal laws as torts predates RICO. Perhaps most on-point—for the hereditary reasons we have discussed—are the antitrust laws. So conceived, “[a] private suit under the antitrust laws is a suit seeking relief against a statutory tort.” What this entails, then, “is the application of the age-old tort principle[s] … to the novel statutory tort created by the federal antitrust laws.” Many other statutory redressive schemes are treated as “torts.” Unsurprisingly, an unbroken line of cases—when tasked with categorization—refer to civil RICO as a “statutory tort.”

If we start from the premise that civil RICO is—categorically speaking—a tort, then Medical Marijuana and the dissent’s conception of injury as an invasion of rights is a sensible stance. Justice Kavanaugh’s description of a pedestrian’s injury at the hands of a negligent driver as a “wrongful invasion of the physician’s physical safety” is well taken. And this, despite the majority’s insistence that “not even a cover-to-cover reading of the Restatement will reveal a ‘wrongful invasion of physical safety’” tort. This is at once unfair and beside the point. It’s unfair because Justice Kavanaugh did not posit the existence of a freestanding tort by that name. He merely described the content of one element—injury—of a negligence claim based on a hypothetical scenario. It’s beside the point because—although Justice Barrett searched in vain for those words—the history of tort law is littered with the notion behind them.

At least as far back as Blackstone, a “wrong” (viz., the older name for a “tort”), was defined as “an infringement or privation of the of the private or civil rights belonging to individuals.” As a matter of procedure, Lisa Laplante notes, “Judges first determined whether the plaintiff proved a violation of an individual’s right of person or property; if proven, this private wrong provided the grounds to trigger the claim for a remedy to make the defendant pay for the harm caused by the injury.” This equation of an act invading a right as an injury causing compensable harm carried forward in early American jurisprudence, which Laplante locates in a decision of Justice (then Judge) Story in Webb v. Portland Mfg. In that case, Justice Story explicitly endorsed the notion that violation of a right is “injury,” even in a case of no actual harm:

Actual perceptible damage is not indispensable as a foundation of an action. The law tolerates no further inquiry, than whether there has been a violation of a right; if so the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper, to remunerate him.

Chief among these rights was “bodily security” (also called “personal security”), “a violation [of which] gave rise to a presumptive injury.” Nonetheless, “property rights were one of the most clearly identifiable rights.”

The notion of “injury” as an invasion of a plaintiff’s rights is not a mere historical artifact. Even in the early modern era, the concept held, both as to business/property and physical rights. Although Cardozo and Arnold agreed about little else in Palsgraf v. Long Island Railroad, both equated injury with a rights invasion. And, in a personal injury case, “the right to be protected against [is] interference with one’s bodily security.” Now, it is true that, over time, courts began to talk more about duties of defendants than rights of plaintiffs—but because, as the saying goes, rights and duties hunt in pairs, the underlying concept remains the same. That is, a plaintiff has a right not to be injured and a defendant has a correlative duty not to injure. As Goldberg and Zipursky put it, “rights invasion” is a definitional and foundational concept: “All torts are relational wrongs, and hence are, by definition, rights invasions. A tort is a breach of a relational legal duty of non-injury.” For example, in the context of a factual misrepresentation, a defendant breaches a duty not to induce someone to part with something of value in reliance on that misrepresentation and breach of that duty “constitutes a violation of the victim’s right not to be deceived in a certain kind of transactional setting.”

Cast in these terms, the dissent’s conception of “injury” makes good sense. But the dissent of course did not have the last word, and we’ll hand the reins back to the majority next time.

Randy D. Gordon is the founding partner of the Dallas and Fort Worth offices of Duane Morris LLP. He is executive professor of law, history, and performance, visualization & fine arts at Texas A&M University. This series is excerpted from a forthcoming article, “Defining Civil RICO’s ‘Injury to Business or Property’ Requirement: The Supreme Court Takes a Few Steps, Says It Punts, but Actually Fumbles,” in the Penn State Law Review.

Reprinted with permission from ALM Media Properties LLC. All rights reserved.