Private Law Theory

ABSTRACT
Tortious interference with contract has bedeviled legal commentators for over a century. It can provide relief in some situations where straightforward contract breach cannot reach. But these claims have also been derided for threatening competition, at-will employment, free speech, and important guardrails on other private law claims. The doctrine is also difficult to square with theories of efficient contract breach and the long-held view that contracts on their own are not property interests.

Perhaps because of its intellectual awkwardness, tortious interference claims were relatively rare until the twenty-first century. In the last twenty years, the doctrine has exploded in popularity, bringing to the fore the its old risks and unsettled questions. It is now appearing in disputes over athletic coaches, non-compete clauses, debt, and even Title IX.

This article revisits tortious interference with contract at this pivotal moment in the doctrine’s history, considering its use both descriptively and normatively. In doing so, this article makes three contributions. First, it provides a nuanced and layered account of tortious interference doctrine as it exists today. Relying on an original empirical analysis, it finds that some of the most modern uses of the doctrine raise new theoretical, practical, and moral questions. Second, it introduces a new third-party theory of interference, which situates tortious interference doctrine in a growing literature on the roles of third parties in contract. While prior literature on tortious interference has focused on third-party beneficiaries in contract, this article argues that tortious interference doctrine reveals third-party obligations in contracts. This section makes the case that malice is the most coherent standard for tortious interference and best minimizes the doctrine’s risks. Finally, this article updates our understanding of the doctrine’s theoretical and practical implications in light of new and pervasive claims.

D’Onfro, Danielle Frances and Hwang, Cathy, Tortious Interference Revisited (January 30, 2025), Washington University in St Louis Legal Studies Research Paper No 25-02-01; University of Pennsylvania Law Review, forthcoming.