Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, December 11, 2009

Shmueli: "Tort Litigation Between Spouses: Let's Meet Somewhere in the Middle"

Benjamin Shmueli has posted Tort Litigation Between Spouses: Let's Meet Somewhere in the Middle, 15 Harvard Negotiation Law Review__ (forthcoming 2010), on SSRN.  Here is the abstract:

In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The present essay will address this question, by examining the possibility of establishing a delicate balance between the individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and the family-collectivist approach, which attempts to determine what is best for the family as a whole, and is concerned that legal intervention in its affairs may be more detrimental than beneficial.

The assumption in this essay will be that, although we are talking of a claim under tort law, rather than under family law, and that this claim may be consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. Moreover, since these are particularly charged, emotional claims, the real remedy desired may at times not be financial compensation at all, but some other remedy, an emotional one, which the law cannot provide, but which might be provided specifically through extrajudicial proceedings. But requiring the parties to take part in such a proceeding under the auspices of the court (e.g. mandatory mediation) is itself problematic, since these are essentially voluntary proceedings.

I will propose a desirable model that balances the two approaches, the individualistic and the family. This model will present a theoretical and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts, while also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes.


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