TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, May 3, 2018

Recent Publications of the Institute for European Tort Law and the European Centre of Tort and Insurance Law

Tuesday, February 13, 2018

The Duty of Care in Negligence by James Plunkett

Hart Publishing announces The Duty of Care in Negligence by James Plunkett.  The blurb provides:

This book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of the concept to the reader.

The flyer, with a 20% discount, is available here:  Download Plunkett

February 13, 2018 in Books | Permalink | Comments (0)

Tuesday, January 23, 2018

Regulating Risk Through Private Law

Regulating Risk Through Private Law, edited by Matthew Dyson, is now available from Intersentia.  The blurb provides:

Regulating Risk Through Private Law sets out, for nine significant legal systems, an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. It examines and explains what risk-based reasoning adds to private law.

Taking tort law as the core case study, the book analyses national variation in risk understanding, liability, culture and regulation and from that, develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the volume examines the contextual and cultural setting of different risks and how different legal systems seek to regulate them.

The volume draws on more than 25 leading scholars of private law and risk from around the world to develop a coherent and systematic study of risk. The legal systems included span the common law and civil law, large and small, codified and uncodified, as well as those with wider and narrower strict liability rules and causation rules: England and Wales, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil.

This is the first multi-handed work on risk to explore what risk-reasoning adds to private law and how best it can be deployed, resisted or simply understood.

Matthew Dyson is an Associate Professor in the Faculty of Law, University of Oxford, and Tutorial Fellow of Corpus Christi College. Previously, he was a Fellow of Trinity College and Jesus College, Cambridge. He is an associate member of 6KBW College Hill Chambers, a Research Fellow of the Utrecht Centre for Accountability and Liability Law and Vice President of the European Society for Comparative Legal History. He is the editor of Unravelling Tort and Crime (2014), Comparing Tort and Crime (2015) and Fifty Years of the Law Commissions (2016).

With contributions by Cristián A. Banfi (University of Chile), Bernardo Bissoto Queiroz de Moraes (University of Sao Paulo), Mia Carlsson (Stockholm University), Nadia Coggiola (University of Turin), Matthew Dyson (University of Oxford), Anton Fagan (University of Cape Town), Duncan Fairgrieve (University of Paris-Dauphine PSL), Richard Fentiman (University of Cambridge), Sandra Friberg (Uppsala University), Bianca Gardella Tedeschi (Università del Piemonte Orientale), María Paz Gatica (University of Chile), Ivo Giesen (Utrecht University), Michele Graziadei (University of Turin), Cyril Holm (Uppsala University), Elbert de Jong (Utrecht University), Marlou Overheul (Utrecht University), Ignacio Maria Poveda Velasco (University of Sao Paulo), Alistair Price (University of Cape Town), Otavio Luiz Rodrigues Junior (University of Sao Paulo), Albert Ruda (University of Girona), María Agnes Salah (University of Chile), Helen Scott (University of Oxford), Sandy Steel (University of Oxford), Jenny Steele (University of York), Simon Taylor (University Paris Diderot), Eduardo Tomasevicius Filho (University of Sao Paulo) and Véronique Wester-Ouisse (Deputy Prosecutor at the Court of Appeal of Rennes).

More information is available here:  Download E-flyer_Regulating Risk Through Private Law

January 23, 2018 in Books | Permalink | Comments (0)

Thursday, October 26, 2017

Oberdiek on Imposing Risk

John Oberdiek has posted to SSRN the Introduction to Imposing Risk:  A Normative Framework.  The abstract provides:

This is the Introduction to Imposing Risk: A Normative Framework (Oxford University Press, 2017).

Human life has always been shadowed by risks like disease and natural disaster, but modern life is distinctively risky. In the first instance, today, risk utterly permeates life. The sheer variety and scope of risks that attend industrialized and industrializing societies are unique to them. Our agrarian and geographically dispersed ancestors did not face the risks that accompany the use of automobiles and high-speed transit, the mass production of goods and widespread use of chemicals, vast construction and public works projects, or the countless other risks to which we are exposed in our everyday lives. In light of the fact that risk is ubiquitous in modern life, it should be no surprise that sociologists have called ours a “risk society,” focused on containing the risks that modernization itself has created. This sociological fact implies a normative one that, in conjunction with the pervasiveness of risk, explains why modern life is distinctively risky: the risks we now face are morally cognizable. For they are, in the main, subject to our control – indeed, they are typically our creation. The risks that define modern life are therefore our responsibility. As they are largely imposed by people on people, they call for moral assessment. This book addresses some of the central questions stimulated by our contemporary practices of imposing risk.

October 26, 2017 in Books, Scholarship | Permalink | Comments (0)

Friday, September 29, 2017

Asfour on Wrongful Enrichment

Nahel Asfour has published Wrongful Enrichment:  A Study in Comparative Law and Culture (Hart Publishing).  The blurb provides:

This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions. The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine. Revised Dissertation. (Series: International Studies in the Theory of Private Law) [Subject: Contract, Tort & Restitution Law; Comparative Law]

September 29, 2017 in Books, Scholarship | Permalink | Comments (0)

Friday, September 1, 2017

Peter Cane: Key Ideas in Tort Law

Peter Cane has authored "Key Ideas in Tort Law" from Hart Publishing.  The blurb provides:

This book offers nine key ideas about tort law that will help the reader to understand its various social functions and evaluate its effectiveness in performing those functions. The book focuses, in particular, on how tort law can guide people's behaviour, and the political and social environments within which it operates. It also provides the reader with a wealth of detail about the ideas and values that underlie tort 'doctrine'-tort law's rules and principles, and the way those rules and principles operate in practice. The book is an accessible introduction to tort law that will provide students, scholars and practitioners alike with a fresh and engaging view of the subject.

The table of contents:

1. Nine Key Ideas
2. Tort Law
3. Torts
4. Torts Unpacked
5. Torts Repackaged
6. Wrongs
7. Out and About with Tort Law
8. Politics
9. Uses
10. The Political Economy of Compensation Schemes
11. The Future of Tort Law

September 1, 2017 in Books | Permalink | Comments (0)

Monday, August 21, 2017

Dyson on Risk-Reasoning in Tort

Matthew Dyson has posted to SSRN What Does Risk-Reasoning Do in Tort Law?.  The abstract provides:

This chapter is a draft of the conclusion to an edited collection on how private law (particularly tort law) conceives of risk, generates liability from risk and seeks to use liability to control risk. It is made up for 18 substantive chapters, two each from England, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil. The volume will be published later in 2017 by Intersentia. This chapter sets out the main findings from the volume, analyses them comparatively, and shows what risk-reasoning does within tort law.

August 21, 2017 in Books, Scholarship | Permalink | Comments (0)

Wednesday, August 2, 2017

Call for Authors: Feminist Judgments: Rewritten Torts Opinions

Martha Chamallas and Lucinda Finley are co-editors of the torts volume of Cambridge University Press's Feminist Judgments series.  The series involves rewriting legal opinions as if the judge were writing from a feminist perspective.  They are seeking authors for both rewritten opinions and commentaries on key cases regarding most facets of tort law.   The editors have identified approximately 16 relevant cases for discussion.  The deadline to express interest is August 25th.  Deadlines for the final product are in March 2018 for the opinions and April 2018 for the commentaries.  More information is available here:   Download Call for Authors Feminist Torts Judgments

August 2, 2017 in Books, Scholarship | Permalink | Comments (0)

Tuesday, July 25, 2017

Popper's Materials on Tort Reform (2nd ed.)

Announcement: Publication of Materials on Tort Reform, 2nd Edition (2017) by Andrew F. Popper, Bronfman Professor of Law, American University, Washington College of Law

 

Early in July, West Publishing released Materials on Tort Reform, 2nd Edition (2017) by Andrew F. Popper.  The goal for this edition is very much the same as it was for the First Edition: a supplemental text for torts classes that provides essays, articles, cases, and other materials allowing for consideration of all sides of the tort reform debate.  In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner. 

While tort law has not changed dramatically since this book was first published, the tort reform debate has shifted. In the period preceding the first edition, tort reform was a battle over substantive tort law, joint and several liability, admissibility of certain evidence—in other words, issues pertaining directly to accountability and liability.  Typical tort reform proposals involved limitations on non-economic loss, standards for punitive damages, changes in the definition of design defect, the government standards and state of the art defense, and more.

For the last seven years, while the above topics remain in play, focus has broadened to include fundamental procedural mechanisms that affect, enhance, or limit access to courts. In addition, there has been an undeniable push to move tort cases away from state courts and into federal court.  Broadly speaking, those fighting for these changes contend that tort law, as currently practiced, produces uncertain and unfair results.

Those opposing these changes assert that injured people are entitled to access to justice in their own states, before judges from their own states, with basic decisions made by a jury of their peers at a local level, i.e., federalism. Broadly, they assert that this is a struggle to preserve the rights of injured consumers to a fair and just legal system. What is at risk, they contend, is a level playing field where damages imposed on those who produce dangerous products or provide inappropriate professional services are sufficient to make whole those harmed and deter others from similar misconduct.

Both positions have multiple glimmers of legitimacy, a fact that seems obvious to all except those involved in the fight.

Through commentary, essays on both sides of the battle, articles, interest group papers, and cases, this text is designed to help students comprehend this 40-year struggle. Does the tort system yield inefficient and counter-productive results (e.g., a less competitive market and higher prices), or is it that prized legal regime its supporters contend, preserving fragile rights of injured consumers? 

July 25, 2017 in Books, Teaching Torts | Permalink | Comments (0)

Monday, June 12, 2017

Goudkamp's Introduction to Tort Law Defences

James Goudkamp has posted to SSRN the Introduction to his book Tort Law Defences.  The abstract provides:

The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.

June 12, 2017 in Books, Scholarship | Permalink | Comments (0)

Friday, May 19, 2017

Shapo's Treatise on Products Liability

The latest edition of Marshall Shapo's products liability treatise is available from Elgar.  The blurb provides:

An authoritative, in-depth study of issues in products liability litigation, this comprehensive treatise traces the law of products liability from its roots in contract and tort to its development into the challenging, complex modern law of the subject.

May 19, 2017 in Books, Products Liability | Permalink | Comments (0)

Tuesday, February 7, 2017

Wells on Harmonizing European Tort Law

Mike Wells has posted to SSRN Harmonizing European Tort Law and the Comparative Method:  Basic Questions of Tort Law from a Comparative Perspective.  The abstract provides:

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.

February 7, 2017 in Books, Scholarship | Permalink | Comments (0)

Wednesday, January 25, 2017

Hershovitz Reviews Ripstein's "Private Wrongs"

Scott Hershovitz has posted to SSRN The Search for a Grand Unified Theory of Tort Law.  The abstract provides:

In Arthur Ripstein's new book "Private Wrongs," he argues that one simple idea accounts for all of tort's rights and remedies: no one is in charge of anyone else. In this review, I argue that Ripstein is wrong about that. I outline his account of tort, and then set out (some of) the details of the doctrine for which he has failed to account. I also argue that the ambition of Ripstein's book is misguided: we ought not expect simple explanations for complicated and contingent institutions, like tort. Nevertheless, I find lots to admire in Ripstein's book, and I recommend it to everyone who is interested in private law.

January 25, 2017 in Books, Scholarship | Permalink | Comments (0)

Tuesday, January 3, 2017

Porat on Calabresi's "Future of Law and Economics"

Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs.  The abstract provides:

This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.

January 3, 2017 in Books, Conferences, Scholarship | Permalink | Comments (0)

Friday, December 16, 2016

Ball: "Enrichment at Claimant's Expense"

Eli Ball has published Enrichment at the Claimant's Expense with Hart Publishing.  The blurb provides:

This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties – a claimant and a defendant – are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test – asking whether enrichment and loss arise 'but for' each other – provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.

December 16, 2016 in Books | Permalink | Comments (0)

Monday, November 21, 2016

The Liability of Public Authorities in Comparative Perspective

Ken Oliphant has edited a new book, The Liability of Public Authorities in Comparative Perspective:

In recent decades, the liability of public authorities has been one of the main areas of development in and at the edges of tort law in Europe, with major reforms implemented or considered at a national level, and a steady stream of major court decisions. During the same period, ‘Member State liability’ has also been recognised in the law of the EU, and the interplay of principles of national and EU law – and additionally the ‘just satisfaction’ jurisprudence of the European Court of Human Rights – evidently warrants close attention. In this context, the aims of the present study are to contribute to the understanding of the law of extra-contractual liability as it applies to public authorities in the legal systems of Europe (and selected non-European jurisdictions), to facilitate its enhancement where necessary or desirable, and to consider the possibilities for harmonisation in the area – specifically, through the extension and adaptation of the Principles of European Tort Law to cover public authority liability.

Mike Green and Jonathan Cardi describe doctrines in the United States.  The flyer is here:   Download E-flyer liability of public authorities

November 21, 2016 in Books | Permalink | Comments (0)

Friday, November 18, 2016

Damages and Compensation Culture

Hart Publishing announces Damages and Compensation Culture by Eoin Quill and Raymond J. Friel:

The focus of the essays in this book is on the relationship between compensation culture, social values and tort damages for personal injuries. A central concern of the public and political perception of personal injuries claims is the high cost of tort claims to society, reflected in insurance premiums, often accompanied by an assumption that tort law and practice is flawed and improperly raising such costs. The aims of this collection are to first clarify the relationship between tort damages for personal injuries and the social values that the law seeks to reflect and to balance, then to critically assess tort reforms, including both proposals for reform and actual implemented reforms, in light of how they advance or hinder those values. Reforms of substantive and procedural law in respect of personal injury damages are analysed, with perspectives from England and Wales, Canada, Australia, Ireland and continental Europe. The essays offer valuable insights to anyone interested in the reform of tort law or the tort process in respect of personal injuries.

This flyer includes a 20% discount:  Download Quill_Friel

November 18, 2016 in Books | Permalink | Comments (0)

Thursday, October 27, 2016

2016 AALS Torts Section Newsletter

Stacey Tovino has done a great job putting together the Section's newsletter:   Download Newsletter (Oct. 2016) (1)

October 27, 2016 in Books, Conferences, Scholarship | Permalink | Comments (0)

Friday, August 26, 2016

Two from Hart Publishing

Hart Publishing has published James Edelman and Elise Bant's Unjust Enrichment.  From the blurb:

Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors' thinking, responding to novel issues and circumstances that have arisen in the maturing case law, has required many chapters of the book to be completely rewritten. The scope of the book is also much broader. It concerns the principles of the law of unjust enrichment in Australia, New Zealand, England and Canada. Major decisions of the highest courts of these jurisdictions in the last decade provide a fertile basis for examining the underlying principles and foundations of this subject. The book uses the leading cases, particularly in England and Australia, to distil and explain the fundamental principles of this branch of private law. The cases discussed are current as of 1 May 2016 although the most recent could only be included in footnotes.

For a 20% discount, download this flyer:  Download Edelman_Bant

Hart has also published Alan Beever's A Theory of Tort Liability.  From the blurb:

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.

For a 20% discount, download this flyer:  Download Beever

August 26, 2016 in Books, Scholarship | Permalink | Comments (0)

Friday, July 8, 2016

Varuhas: Damages and Human Rights

Hart Publishing announces a new book by Jason Varuhas, Damages and Human Rights.  The blurb provides:

Damages and Human Rights is a major work on awards of damages for violations of human rights that will be of compelling interest to practitioners, judges and academics alike. Damages for breaches of human rights is emerging as an important and practically significant field of law, yet the rules and principles governing such awards and their theoretical foundations remain underexplored, while courts continue to struggle to articulate a coherent law of human rights damages. The book's focus is English law, but it draws heavily on comparative material from a range of common law jurisdictions, as well as the jurisprudence of international courts.The current law on when damages can be obtained and how they are assessed is set out in detail and analysed comprehensively. The theoretical foundations of human rights damages are examined with a view to enhancing our understanding of the remedy and resolving the currently troubled state of human rights damages jurisprudence. The book argues that in awarding damages in human rights cases the courts should adopt a vindicatory approach, modelled on those rules and principles applied in tort cases when basic rights are violated. Other approaches are considered in detail, including the current 'mirror' approach which ties the domestic approach to damages to the European Court of Human Rights' approach to monetary compensation; an interest-balancing approach where the damages are dependent on a judicial balancing of individual and public interests; and approaches drawn from the law of state liability in EU law and United States constitutional law. The analysis has important implications for our understanding of fundamental issues including the interrelationship between public law and private law, the theoretical and conceptual foundations of human rights law and the law of torts, the nature and functions of the damages remedy, the connection between rights and remedies, the intersection of domestic and international law, and the impact of damages liability on public funds and public administration.

A flyer with more information, and a discount, is here:  Download Varuhas

July 8, 2016 in Books | Permalink | Comments (0)