Sarah Dadush of Rutgers has written Identity Harm, 89 University of Colorado Law Review (Forthcoming). Here is the abstract:
In September 2015, the world learned that Volkswagen had rigged millions of its “clean diesel” vehicles with illegal software designed to cheat emissions tests. Contrary to what had been advertised, the vehicles are anything but clean. The fraud, referred to as “Dieselgate,” lasted for over seven years. When affected owners learned that their cars were much more toxic than advertised, what were they upset about? Was it that their cars were now worth fewer dollars? Or that they had been deceived into being bad global citizens, when they thought they were being good?
Coverage of Dieselgate strongly suggests that affected car-owners experienced both kinds of disappointment, economic and non-economic, and in heavy doses at that. But while the first kind of harm is relatively easy to recognize and address, this article shows that our protective regime is ill equipped to shield consumers from the second, a kind of “identity harm.” Identity harm refers to the distress experienced by consumers who learn that the companies they bought from did not honor their environmental or social promises. It arises when consumers realize that they have become unwittingly implicated in commercial arrangements that harm the planet and/or other human beings.
Today, an ever-growing number of consumers and corporations are becoming sensitized to sustainability challenges. They are also becoming more expressive about their commitment to addressing those challenges. As the “market for virtue” expands, so too does exposure to identity harm. This article introduces identity harm and argues for its deeper legal recognition.