Courtney Cox (Fordham): Deceit Is Not Deception (And Other Truths)

Courtney Cox is an associate professor at Fordham University, School of Law, and will be giving the tenth and final paper of Trinity term: "On Judging".

This seminar will take place in Massey Room, at Balliol College, University of Oxford (Broad St, Oxford OX1 3BJ) at 5:00pm on Thursday 19 June.

This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

Abstract:

In earlier work, I asked a question: Is common law fraud—once known as the tort of “deceit”—actually about deception?  This question might seem silly to ask.  After all, common law fraud is the poster child of the so-called “law of deception.”  And so, rather than answer it, I argued that the question was not daft.

Now, having motivated the question, I turn to answering it.  Tracing the history and edge cases of common law fraud, and applying philosophical analysis, I argue that deceit has never been about deception.  Deceit is about manipulation—and not just manipulation by means of deception.  Deceit can and has been brought for manipulation by other means. Appearances to the contrary are a ruse.

This result is significant.  For one, it reconciles various puzzles about the tort itself: like about why misrepresentations must be material to be actionable; about why omissions can be fraudulent; and about why deceit can be brought for representations the speaker believed were true.  But going beyond theory, this new understanding of the so-called law of deception has practical implications for remedying harm in the age of dark patterns and online manipulation, and, on the flipside, for cybersecurity research and best practices that use lies and deception as tools for good.

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