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Maureen E. Brady & James Y. Stern, Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels, J. Tort L. (Forthcoming).

Abstract: A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.”The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.