TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, March 14, 2013

Searle Center Book Conference on "An Injury Law Constitution" by Marshall S. Shapo

Today and tomorrow the Searle Center at Northwestern is hosting a conference on Marshall Shapo's An Injury Law Constitution.  The format is interesting; there is a group of about 35 having a roundtable discussion instead of panelists.  There are 4 sessions and each has a commentator to begin the discussion. 

Session One:  Introduction and Chapter One (Bob Rabin)

Session Two:  Chapters Two and Seven (on Power) (Cathy Sharkey)

Session Three:  Chapter Nine (on Rationales) (Anita Bernstein)

Session Four:  Conclusion (Jacqueline Zins, Former Deputy Special Master of the 9/11 Fund)

I plan to blog the sessions (though probably not as they occur), so stay tuned.


March 14, 2013 in Books, Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, November 22, 2012

Employers' Liability and Workers' Compensation

Ken Oliphant & Gerhard Wagner have published Employers' Liability and Workers' Compensation.  The abstract provides:

The European Centre of Tort and Insurance Law (ECTIL) with support by the Institute for European Tort Law embarked already in 2009 on a Comparative Project on Employers' Liability and Workers' Compensation. The study - conducted in English and led by Ken Oliphant (Institute for European Tort Law, Vienna) and Gerhard Wagner (University of Bonn) - will consist of reports from Austria, Australia, Denmark, France, Germany, Italy, Japan, the Netherlands, Poland, Rumania, the United States of America and the United Kingdom. With regard to content the study will focus on the compensation of occupational diseases and accidents. Issues like discrimination, moral or sexual harassment and other damages claims of employees against their employer will be dealt with in the reports for countries where these issues are seen as a part of Employers' Liability (e.g. UK, USA), but not in detail. Major aspects of the reports will be a description of different existing compensation schemes, interactions between Employers' Liability and Workers' Compensation, a comparison of both systems and their respective efficiency.

The countries covered are: Australia (Mark Lunney), Austria (Ernst Karner/Felix Kernbichler), Denmark (Vibe Ulfbeck), England and Wales (Richard Lewis), France (Florence G'Sell/Isabelle Veillard), Germany (Raimund Waltermann), Italy (Alessandro P Scarso/Massimo Foglia), Japan (Keizo Yamamoto/Tomohiro Yoshimasa), the Netherlands (Siewert D Lindenbergh), Poland (Domenika Dörre-Nowak), Romania (Christian Alunaru/Lucian Bojin) and the United States of America (Michael D Green/Daniel S Murdock).
The book is completed by three concluding essays that address general themes:
Thomas Thiede, The European Coordination of Employers' Liability and Workers' Compensation
Ken Oliphant, The Changing Landscape of Work Injury Claims: Challenges for Employers' Liability and Workers' Compensation
Gerhard Wagner, New Perspectives on Employers' Liability - Basic Policy Issues


November 22, 2012 in Books | Permalink | Comments (0) | TrackBack (0)

Thursday, November 8, 2012

Weinrib's New Book on Corrective Justice

Ernest Weinrib further develops his concept of corrective justice in a new Oxford University Press book entitled Corrective Justice.  The abstract provides:

Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.

Ernest Weinrib made a seminal contribution to the understanding of private law with his first book, The Idea of Private Law. In it, he argued that there is a special morality intrinsic to private law: the morality of corrective justice. By understanding the nature of corrective justice we understand the purpose of private law - which is simply to be private law.

In this new book Weinrib takes up and develops his account of corrective justice, its nature, and its role in understanding the law. He begins by setting out the conceptual components of corrective justice, drawing a model of a moral relationship between two equals and the rights and duties that exist between them. He then explains the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract, and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor.

Combining legal and philosophical analysis, Corrective Justice integrates a concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Alongside the revised edition of The Idea of Private Law, it will be essential reading for all academics, lawyers, and students engaged in understanding the foundations of private law.


November 8, 2012 in Books | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2012

Kaye's Products Textbook

Carolina Academic Press is publishing Products Liability Law: Cases, Commentary, and Conundra by Tim Kaye.  Here is the blurb:

Products liability law is often confusing because it is in a state of constant flux as it confronts a number of challenges. Some such challenges are well known, such as the battle over the comparative merits of the Second and Third Restatements of Torts. Other equally important challenges have, however, been overlooked by other texts, such as the growing use of bankruptcy protection laws to limit the consequences of supplying defective products (as in the recent bailout-supported cases of General Motors and Chrysler), and this book sets out to rectify such omissions.

While other books leave the reader to sink or swim in a swamp of apparently contradictory doctrine, Products Liability Law lays out from the beginning the five elements common to all products liability claims. It then builds on this foundation by tackling each new area of the law in a lucid and reader-friendly manner, while explaining how each doctrine relates to the politico-economic and historical context in which the law operates.

Supplementing the text with numerous original flowcharts, tables, and other diagrams—as well as asking thoughtful questions along the way—this book charts a careful and comprehensible course through the often tempestuous battleground of products liability law.


September 27, 2012 in Books, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Gifford et al. on Ordering the Torts Casebook

Don Gifford (Maryland), Joseph Kroart, Brian Jones (Villanova-Sociology), and Cheryl Cortemeglia have posted to SSRN What's on First?  Organizing the Casebook and Molding the Mind.  The abstract provides:

This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all three groups of students shifted toward a belief that judges consider social, economic, and ideological factors, the degree of the shift differed in a statistically significant way depending on which torts their professors taught first. These differences persisted throughout the semester, even after they studied other torts. Further, these differences were observed even when the analysis controlled for law school ranking and were more pronounced among students attending the highest ranked schools.

In interpreting the survey results, the authors employ sociologist Erving Goffman’s theory of “frame analysis” and the work of cognitive psychologists including Amos Tversky and Daniel Kahneman on “anchoring.” The Article concludes that the category of tort liability to which students are first exposed affects the “frame” or “lens” through which they view the judicial process. This frame becomes anchored and persists throughout the study of other tort categories. The lessons about the nature of the judging process learned implicitly through the professor’s choice of topic sequence may be even more important than the substantive topics themselves.


August 30, 2012 in Books, Scholarship, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Friday, July 27, 2012

Two by Rustad

Mike Rustad (Suffolk) has posted two pieces to SSRN.  First, he reviews Marshall Shapo's new book in The Myth of a Value-Free Injury Law:  Constitutive Injury Law as a Cultural Battleground.  The abstract provides:

This review essay critically examines Marshall Shapo’s new book, An Injury Constitution. Shapo’s new book provides a counter to simplistic arguments that torts is driving our economy into a death spiral by jackpot justice judgments in which undeserving plaintiffs collect enormous awards given by runaway juries. Drawing upon forty-six years of torts scholarship and teaching, Shapo’s pluralistic theory demonstrates how injury law reflects our culture and our inner life, as well as our aspirations to constrain bullies and the reckless acts that endanger society. In its eleven chapters, this book contends that American injury law has evolved as the functional equivalent of a constitution.

Second, from the AALS mid-year meeting last month is Tort Teaching Lessons from the BP Oil Spill.  The abstract provides:

This article is drawn from my talk on the topic of "How to Teach Disaster as Part of a Torts Curriculum" at the AALS Workshop on Torts, Environment and Disaster from June 8-10, 2012, in Berkeley. This piece draws upon an informal survey I conducted in the spring of 2012 on how torts teachers employed the BP oil spill disaster (and other disasters) in their basic torts course (to illustrate topics such as the economic loss rule, legal causation, damages, and the impact of safety regulations).


July 27, 2012 in Books, Conferences, Scholarship, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2012

Oliphant & Karner on Loss of Housekeeping Capacity

Ken Oliphant (Director, Institute for European Tort Law) & Ernst Karner (University of Vienna) have co-edited a book for the European Centre of Tort and Insurance Law/Institute for European Tort Law.  Loss of Housekeeping Capacity from De Gruyter is a comparative study on liability for the loss of housekeeping capacity.  The abstract provides:

The topic is of particular interest for insurers as compensation for loss of housekeeping capacity is one of the main heads of damages awarded for personal injury. Naturally it also has considerable importance for accident victims. Yet it has received relatively little scholarly attention, at least from a comparative perspective. The aim of this study is to examine national approaches to the award of damages under the head of loss of housekeeping capacity, and to compare the levels of damages so awarded. The research therefore addressed both the concepts employed in different national systems and, by means of practical case studies, the compensation actually paid in individual cases.
The results of the research comprise ten country reports (Austria, England and Wales, France, Germany, Italy, The Netherlands, Norway, Poland, Spain and Switzerland) based on a Questionnaire (Part I: General Part and Doctrine, Part II: Concrete Assessment Examples) and a concluding Comparative Report.

July 24, 2012 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Ken Feinberg's New Book: "Who Gets What"

Ken Feinberg has a new book on the market, "Who Gets What: Fair Compensation after Tragedy and Financial Upheaval."   From the publisher:

Agent Orange, the 9/11 Victim Compensation Fund, the Virginia Tech massacre, the 2008 financial crisis, and the Deep Horizon gulf oil spill: each was a disaster in its own right. What they had in common was their aftermath—each required compensation for lives lost, bodies maimed, livelihoods wrecked, economies and ecosystems upended. In each instance, an objective third party had to step up and dole out allocated funds: in each instance, Presidents, Attorneys General, and other public officials have asked Kenneth R. Feinberg to get the job done.

In Who Gets What?, Feinberg reveals the deep thought that must go into each decision, not to mention the most important question that arises after a tragedy: why compensate at all? The result is a remarkably accessible discussion of the practical and philosophical problems of using money as a way to address wrongs and reflect individual worth.

NPR recently interviewed Feinberg about the book and his experiences.


July 24, 2012 in Books, Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 4, 2012

Shapo: An Injury Law Constitution

Marshall Shapo (Northwestern) recently published his latest book, An Injury Law Constitution:

An Injury Law Constitution presents a novel thesis that embraces leading features of the American law of injuries. The book argues that the body of law that Americans have developed concerning responsibility for injuries and prevention of injuries has some of the qualities of a constitution--a fundamental set of principles that govern relations between human persons and between individual persons and corporate and governmental institutions. The historical frame reaches back to Aristotle and goes forward to European human rights law. In the modern American legal environment, this “injury law constitution” includes tort law, legislative compensation systems like workers compensation, and the many statutes that regulate safety of activities and of products including drugs, medical devices, automobile design, and pesticides. The work weaves the history of these systems of law into an analysis that it links to the unique compensation plan devised for the victims of the September 11th attacks. The book examines how our injury law constitution reflects deeply held views in U.S. society on risk and injury, indicating how it provides a guide to the question of what it means to be an American.

Oxford University Press, 2012, 312 pages; 6-1/8 x 9-1/4; ISBN13: 978-0-19-989636-3ISBN10: 0-19-989636-4

A PDF summary of the book is here:Download ILC summary.single[1]


March 4, 2012 in Books | Permalink | Comments (0) | TrackBack (0)

Friday, March 2, 2012

Epstein Joined by Sharkey for Casebook's 10th Edition

Today Wolters Kluwer releases the 10th edition of the Epstein casebook, with Cathy Sharkey (NYU) as a co-editor.  To see Epstein & Sharkey's Cases and Materials on Torts, click here:

From the publisher:

The Tenth Edition represents the launch of a new partnership between Richard Epstein, who has edited this casebook since 1977, and Catherine Sharkey, who joins as co-editor for this and future editions.  Our goal is nothing short of producing a Torts casebook for the next generation of torts professors and students.  With that in mind, we have held fast to all of the intellectual rigor, historical depth, and careful case selection and comprehensive notes of the previous nine editions.  But we have embraced change as well, adding diverse perspectives (such as race and gender-based critiques of damages calculations), incorporating contemporary empirical scholarship (especially on medical malpractice, damages and jury decisionmaking), and addressing the influence of technology (such as privacy and defamation in the Internet age).  It is fitting that, with the Tenth Edition, we introduce the Smart Book electronic edition of the casebook, which will create opportunities for professors and students to incorporate additional materials, including photographs, podcasts, and videos.

We received requests for modest additions, including references to the Second or Third Restatement or other governing law.  Many edits reflect this valuable feedback from professors who have used previous editions of the casebook.  On several professors' request, we have also added "Problems," which are hypotheticals based on real cases.  They are designed to test student understanding of major concepts, and answers are discussed in this Manual.

We welcome dialogue with all users of our casebook.  We have benefited greatly from comments and criticisms received over the years.  And we imagine that the new Smart Book will only open the door further to such collaboration.  It is our hope that, together, we can build the most effective casebook for a new generation.  We are eager to hear from you:;


March 2, 2012 in Books, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2012

Gripping Supreme Court Legal Thriller...By An Insider

Last-justice-225  Okay, so this is not torts-related, but I simply had to mention the release of The Last Justice, written by my good friend Anthony Franze.  Anthony is a lawyer with Arnold & Porter's Appellate & Supreme Court practice and his novel is set in the high court with the Solicitor General as the main character.  

Advance reviews already have raved that the book is reminiscent of "early Robert Ludlum," and have praised Anthony as the next John Grisham:  

"Bristling with fascinating insider details, The Last Justice by Anthony J. Franze is a rare legal thriller—authentic, exciting, and beautifully written. From little-seen Supreme Court chambers to elite boardrooms and darkened bedrooms, you'll be swept along on a tidal wave of suspense. Watch out, John Grisham—Franze has arrived, and he's damn good!" 
   —Gayle Lynds, New York Times bestselling author

"A stunning opening, an action-packed, intriguing middle, and a pulse-pounding ending. Who could ask for more from a thriller. Welcome Anthony Franze—a great new voice has entered the genre." 
   —Steve Berry, New York Times bestselling author

"In the style of John Grisham, with the authority of Oliver Wendell Holmes—and with insight to spare—Anthony Franze's legal thriller brings you into Washington's innermost inner sanctums, at a breakneck pace, and with writing so good that you will feel the chill of the marble halls—and the bullets slicing the chilly air around you." 
   —Keith Thomson, New York Times bestselling author

Even the National Law Journal’s Supreme Court correspondent Tony Mauro called the book a “page-turner” that is “downright respectful of the Court, scrupulously accurate in its details about the institution's inner working.”  

Having read the book myself - and having taught a Supreme Court Seminar - I agree with all the praise.  I am biased, I admit, but the book is fantastic!   It strikes an incredible balance of supense with accurate insider details about the Court.  The history and details about the Supreme Court and the SG's Office are so accurate and well written that I could see the book being used as optional reading in an Appellate Practice or Law & Literature course, much the way A Civil Action is used in Civ Pro courses.   

The book is available at your local book store and on-line starting today.   Check it out!

- SBS 

February 7, 2012 in Books, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2011

Bloom & Davies Review Measure of Injury

Anne Bloom and Julie Davies (University of the Pacific) review Martha Chamallas's and Jenny Wriggins's book, The Measure of Injury in this SSRN posting.


December 20, 2011 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 2, 2011

Maxeiner: Failures of American Civil Justice in International Perspective

James Maxeiner (Baltimore) has published Failures of American Civil Justice in International Perspective.  It is available from Amazon.  The description:

Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems. It is intended to be accessible to people with a general knowledge of a modern legal system.

December 2, 2011 in Books | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011

Goldberg's Book for 1Ls

TortsProf John Goldberg and Barry Friedman have written a primer on succeeding in the first year of law school.  Entitled Open Book:  Succeeding on Exams from the First Day of Law School, it is available here.

Here are the reviews and description:


This is a book that will help law students get law school, not just law school exams. It really captures what it means to think like a lawyer. --Amy Coney Barrett, Professor, Notre Dame Law School

I would definitely recommend this book. It gives great advice to students who have no idea what to expect when they take their first law school exams. --Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law

No book is a guarantor of better results, but this one would certainly help the majority of students to add points to their exam results, and some students could literally turn their performances around by following the advice of this book. --Michael D. Murray, Associate Professor, Valparaiso University School of Law

Product Description

A concise, highly accessible guide to exam success. Provides an insider s view of what professors look for in exam answers, and how exam-taking connects to good lawyering. Accompanied by a Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).  


  • High-profile, experienced authors from elite schools with hands-on experience teaching the majority of the courses in the traditional 1L curriculum
  • Distinctive central pedagogy: the pinball method of exam-taking
  • Accompanied by Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).
  • Explains to students not just the how but the why of law school exams what makes law school exams different from exams students have encountered in other settings
  • Detailed examples provide concrete demonstrations of exam-taking techniques
  • Highly readable: prose is straightforward and humorous; key points accented with memorably amusing illustrations Not just an exam prep book; students are offered guidance on getting the most out of classes, and law school more generally.

I've glanced through the book, and it looks great.


August 23, 2011 in Books, Teaching Torts, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 8, 2011

Cupp on Lytton on Clergy Abuse Suits

Rick Cupp (Pepperdine) has posted to SSRN Seeking Redemption for Torts Law--A Review of "Holding Bishops Accountable:  How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse" by Timothy D. Lytton (Harvard University Press 2008).  The abstract provides:

In Holding Bishops Accountable, Professor Timothy Lytton presents the Catholic Church child molestation lawsuits as an example to encourage a more careful look at torts litigation’s potential policymaking benefits. In this forthcoming book review (draft available for download), Professor Cupp praises Professor Lytton’s thesis and his impressive scholarship. However, the review raises as an open question whether the clergy abuse cases provide an illustration that is too exceptional to substantially enhance openness to the idea of torts litigation as a policy tool.

Church leaders abusing vulnerable children creates a deeply compelling “morality play,” and a plaintiff’s attorney’s perfect plotline. Finding a more sympathetic plaintiff than a defenseless child or a more deplorable defendant than a corrupt clergyman abusing innocents is not easy. The review acknowledges that in the information age a strong symbiotic relationship exists between news and torts lawsuits that should not be underestimated in assessing torts law’s impact on policymaking. With a scenario as shocking as priests molesting children, the media justifiably flock to cover the scandalous story, the extensive coverage shapes public perceptions, and significant policy change predictably follows.

The review recognizes that under the right circumstances, torts law might play a role as a policymaking tool, but it cautions that the particularly powerful illustration of clergy abuse litigation is just that – particularly powerful – and that torts law’s potential for influencing policy is more limited in most litigation scenarios.


June 8, 2011 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 3, 2011

New Book - "European Tort Law: Basic Texts"

European tort law

Ken Oliphant (Director, Institute for European Tort Law) is co-editor of a new book - European Tort Law: Basic Texts.  From the publisher:

This unique collection makes available, for the first time in a single volume, English versions of basic tort law texts from 27 national systems in Europe. It includes key provisions of national civil codes and other important legislative enactments, as well as extracts from leading cases. Additional chapters deal with EU Law (EU Tort Law and EU Conflict of Laws) and the European harmonisation projects (the Principles of European Tort Law and the Draft Common Frame of Reference).

The book was launched on the occasion of last week’s 10th Annual Conference on European Tort Law in Vienna, and is dedicated to the conference’s founder, Helmut Koziol.




May 3, 2011 in Books, Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 29, 2010

Free, Downloadable Torts Text

Eric Johnson (North Dakota) has posted to SSRN a full Torts text.  Johnson blogged about the project at Prawfs.


September 29, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 9, 2010

Chamallas & Wriggins: "The Measure of Injury"

The Measure of Injury:  Race, Gender, and Tort Law by Martha Chamallas (Ohio State) and Jennifer Wriggins (Maine) was published a little over a week ago by NYU Press.  The advance reviews:

"This book is brimming with insights about how societies do and should express what matters in assigning liability for human pain and loss."  Martha Minnow (Harvard)

"This book asks important questions about the tort system....A promising direction for scholarship...."  Keith Hylton (Boston University)

An "Author Meets Readers" panel discussed the book at Law & Society late last month.  Catharine Wells (Boston College) was kind enough to provide me a post based on her remarks from the panel.  Her guest post will be up tomorrow.


June 9, 2010 in Books, Conferences, Guest Blogger, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 26, 2010

Popper's "Tort Reform" in Text Format

Earlier Andrew Popper's "Tort Reform" book received publicity both here at TortsProf (Sheila) and at the VC(Todd Zywicki).  West has now announced that it will be available not only in electronic format (as originally advertised), but also as a traditional text (in paperback).  It will be available in time for the fall semester.


May 26, 2010 in Books, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

Gender, Race, and Tort Law

In less than two weeks, The Measure of Injury:  Race, Gender, and Tort Law,  the new book by Martha Chamallas (Ohio State) and Jenny Wriggins (Maine), will be available from NYU Press. 

At Law & Society in Chicago next week, there will be an "Author Meets Readers" panel on the book.  Scheduled for Friday, May 28 from 4:30-6:15 at the Renaissance Hotel, the panel will be chaired by Anne Bloom (University of the Pacific).  Readers are:  Julie Davies (University of the Pacific), Lisa Pruitt (California, Davis), Catharine Wells (Boston College), and me. 


May 20, 2010 in Books, Conferences, Damages | Permalink | Comments (0) | TrackBack (0)