TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, September 30, 2013

Beever on "The Law of Private Nuisance"

BeeverFrom Hart Publishing comes news of a new title of interest to our TortsProf readers:

The Law of Private Nuisance  By Allan Beever

 "It is said that a nuisance is an interference with the use and enjoyment of land. This definition is typically unhelpful. While a nuisance must fit this account, it is plain that not all such interferences are legal nuisances. Thus, analysis of this area of the law begins with a definition far too broad for its subject matter, forcing the analyst to find more or less arbitrary ways of cutting back on potential liability. Tort law is plagued by this kind of approach. 

 In the law of nuisance, today's preferred method of cutting back is to employ the notion of reasonableness. No one seems to know quite what 'reasonableness' means in this context, however. This is because, in fact, it does not mean anything. The notion is no more than the immediately recognisable symptom of our inadequate comprehension of the law.

 This book expounds a new understanding of the law of nuisance, an understanding that presents the law in a coherent and systematic fashion. It advances a single, central suggestion: that the law of nuisance is the method that the common law utilises for prioritising property rights so that conflicts between uses of property can be resolved."


Please click here to view the table of contents for this book 


Sept 2013   180pp   Hbk   9781849465069  RSP: £35 / €45.50

Discount Price: £28 / €36.40 

Hart Publishing is delighted to offer TortsProf readers a  20% discount.

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website:


Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website:


If you have any questions please contact Hart Publishing Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW Telephone Number: 01865 517 530 Fax Number: 01865 510 710


Hart Publishing Ltd. is registered in England No. 3307205



September 30, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Friday, September 27, 2013

Gifford & Reynolds on CAFA and Parens Patriae Actions

Don Gifford & Bill Reynolds (Maryland) have published in the North Carolina Law Review Addendum The Supreme Court, CAFA, and Parens Patriae Actions:  Will it Be Principles or Biases?.  The abstract provides:

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and the liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state attorneys general often sued as parens patriae in litigation of nationwide significance. In Hood, the Supreme Court considers whether mass plaintiffs’ attorneys, by partnering with state attorneys general in parens patriae actions, will be able to circumvent the requirements of the Class Action Fairness Act that allow defendants to remove class actions and other forms of mass actions to the typically more defendant-friendly confines of federal courts. Resolution will turn on the Court’s interpretation of the statutory term “mass action.” A textualist interpretation, usually favored by Justice Scalia and his conservative colleagues, would not allow such removal—a decidedly anti-business result. At the same time, a purposive approach to interpreting the statutory provision, promoted by Justice Breyer, possibly would allow such removal. For each group of Justices, the conflict is clear: Will they follow their previously articulated principles of statutory interpretation or their ideological biases?


September 27, 2013 in Legislation, Reforms, & Political News, MDLs and Class Actions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 26, 2013

JETL: Tort Law and the Financial Crisis

Special Issue: Tort Law and the Financial Crisis 

Edited by Ernst Karner 


Ernst Karner  ‘Tort Law and the Financial Crisis: Basic Questions’ (2013) 2 JETL 119

Peter Loser  ‘Financial Crisis – The Liability of Banking Institutions’ (2013) 2 JETL 128

Alessandro Scarso  ‘The Liability of Credit Rating Agencies in a Comparative Perspective’ (2013) 2 JETL 163

Donal Nolan  ‘The Liability of Financial Supervisory Authorities’ (2013) 2 JETL 190

Jaap Spier ‘Balancing Acts: How to Cope with Major Catastrophes, particularly the Financial Crisis’ (2013) 2 JETL 223

Book Review:

Thomas Kadner Graziano ‘Ken Oliphant/Barbara Steininger (eds), European Tort Law – Basic Texts’ (2013) 2 JETL 240

You can order it here.


September 26, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

Proportional Liability

The European Centre of Tort and Insurance Law and the Institute for European Tort Law have published Proportional Liability:  Analytical and Comparative Perspectives, edited by Israel Gilead, Mike Green, and Bernhard Koch.  The blurb provides:

Causal uncertainty is a wide-spread phenomenon. Courts are often unable to determine whether a defendant’s tortious conduct was a factual cause of a plaintiff’s harm. Yet, sometimes courts can determine the probability that the defendant caused the plaintiff’s harm, although often there is considerable variance in the probability estimate based on the available evidence. The conventional way to cope with this uncertainty has been to apply the evidentiary rule of ‘standard of proof’.

The application of this ‘all or nothing’ rule can lead to unfairness by absolving defendants who acted tortiously and may also create undesirable incentives that result in greater wrongful conduct and injustice to victims. Some courts have decided that this ‘no-liability’ outcome is undesirable. They have adopted rules of proportional liability that compensate plaintiffs according to the probability that their harm was caused by the defendant’s tortious conduct.

In 2005 the Principles of European Tort Law (PETL) made a breakthrough in this regard by embracing rules of proportional liability. This project, building on PETL, endeavours to make further inquiries into the desirable scope of proportional liability and to offer a more detailed view of its meaning, implications, and ramifications.

Thanks to Ken Oliphant for the tip.


September 25, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Hines on Class Actions

Laura Hines (Kansas) has posted to SSRN The Unruly Class Action.  The abstract provides:

This article examines the modern “issue class action” and its tenacious existence in a hostile class action landscape.  I contend that this unauthorized, unbounded device is on a collision course with decades of Supreme Court jurisprudence narrowly interpreting the federal class action rule.  Rather than either suffering such an ignoble fate or continuing to stumble forward as an evolving judicial creation, I advocate instead a robust vetting and evaluative process through formal rulemaking channels.

The issue class action derives from Rule 23(c)(4), which has steadily emerged from a position of near obscurity in the federal class action rule to a widely embraced alternative to the classic (b)(3) damages class action.  This approach – authorizing a class action comprised solely of issues common to the class and excluding from that action adjudication of any issues requiring individual consideration – effectively eliminates one of (b)(3)’s two defining requirements, that common issues predominate over individual issues.  The Supreme Court’s recent class action decisions have underscored the Court’s consistently constrained reading of Rule 23, particularly with regard to lower court innovative efforts to bypass (b)(3)’s predominance requirement.

In my view, the wide-ranging implications of the issue class action can best be evaluated through an open process of formal rulemaking that includes consideration of recent judicial experimentation, Supreme Court precedent, the input of scholars, practitioners, judges, and other interested parties.  Only through such a robust inquiry could we determine whether the issue class action furthers the goals of Rule 23 and, if so, how to amend Rule 23 to accommodate this novel class action in order to reduce its risks and optimize its potential rewards.


September 24, 2013 in MDLs and Class Actions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

2014 Clifford Symposium

From our friends at Mass Tort Litigation comes news of the 2014 Clifford Symposium, which will explore Judge Jack Weinstein's impact on "a broad range of topics in civil justice, from torts, civil procedure and the law of evidence, to broader notions about what it means to be a judge and to seek justice in America's courts."    Justice Stephen Breyer is scheduled to give the main address.

The brochure, with a full list of speakers, is available here. 


September 23, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, September 20, 2013

Recovery from Injuries

Huff Post has a piece on the recovery of Chef Eduardo Garcia from injuries he received in a 2011 hunting accident.  Garcia's left arm was amputated below the elbow and he now has a bionic hand.  John Hochfelder, who blogs at, represented Garcia in the tort case.


September 20, 2013 in Damages, Science | Permalink | Comments (0) | TrackBack (0)

MO: Lawmakers Override Vetoes on 3 Limitations of Liability

In Missouri, 3 of the 10 veto overrides were on issues of tort reform.  Missouri now limits punies in some lead-contamination cases, bars uninsured motorists injured in auto accidents from recovering non-economic damages from insured drivers who were at fault, and shields volunteer health care workers from liability for all but the most egregious conduct.  The Bellingham Herald has the story.  The article discusses a trend I have noticed lately.  The reforms being proposed and adopted tend to be much more discrete and limited than in the past.


September 20, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, September 19, 2013

Abraham on Causation

Ken Abraham (Virginia) has posted to SSRN Self-Proving Causation.  The abstract provides:

This Article explores a feature of the law of causation in torts that has received little analysis: what I call “self-proving causation.” This is a class of negligence cases in which there is no direct evidence of cause-in-fact. Rather, there is circumstantial evidence resting on the fact that the defendant was negligent. In most tort cases, evidence of negligence cannot serve as the basis, and certainly not as the sole basis, of an inference that this negligence caused the harm for which the plaintiff seeks damages. But in self-proving causation cases that is precisely what occurs. So the question is, what distinguishes self-proving causation from other proof of causation? The Article first examines what makes self-proving causation cases distinctive. It then turns to what has become in a short time the most salient and provocative self-proving causation case ever decided, Zuchowicz v. United States. In an opinion by Judge Calabresi, the court held that, because overdoses of prescription drugs often increase the risk of harm, the plaintiff had introduced legally sufficient evidence of causation by proving that the defendant had negligently provided the plaintiff an excessive dose of a particular drug. The Article peels off the layers of the opinion in that case by identifying and evaluating the key steps in the reasoning that leads to its conclusion. Finally, the Article explores the precedential significance of Zuchowicz and its application in some subsequent cases, and considers what this analysis can tell us about the requirements for application of self-proving causation generally.


September 19, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

Calnan: The Right to Civil Defense in Torts

...has been released by Carolina Academic Press.  He credits guest posts on this blog as part of the formative process of the book.  Available here.


September 18, 2013 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 16, 2013

The Public Life of the Private Law: A Conference in Honor of Richard A. Nagareda

On September 27-28, 2013, Vanderbilt Law School hosts "The Public Life of the Private Law: A Conference in Honor of Richard A. Nagareda."   The schedule provides:

Friday, September 27
1:30–3:00 p.m. Theodore Rave (Houston), "Settlement, ADR, and Class Action Superiority"
Commentators: Suzanna Sherry (Vanderbilt) chair, Robert Bone (Texas), and Emery Lee (FJC)

3:15–4:45 p.m. Maria Glover (Georgetown), "A Separate Peace? The Non-Removability of State Law Actions in Multi-District Litigation".   Commentators: Tracey George (Vanderbilt) chair, William Rubenstein (Harvard), and Patrick Woolley (Texas)

Saturday, September 28
8:30–10:00 a.m. Troy McKenzie (NYU), "The Mass Tort Bankruptcy: A Pre-History"
Commentators: Lynn Baker (Texas) chair, Joe Cecil (FJC), and Brian Fitzpatrick (Vanderbilt)

10:15–11:45 a.m. Catherine Borden (FJC) and Margaret Williams (FJC) (with Emery Lee), "Repeat Players in Multidistrict Litigation".  Commentators: Charles Silver (Texas) chair, Paul Edelman (Vanderbilt), and Myriam Gilles (Cardozo)

1:15–2:45 p.m. Adam Zimmerman (Loyola-Los Angeles), "The Corrective Justice State"
Commentators: John Goldberg (Harvard) chair, Elizabeth Chamblee Burch (Georgia), and Edward L. Rubin (Vanderbilt)




September 16, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, September 13, 2013

Engstrom on Litigation Financing

Nora Freeman Engstrom (Stanford) has posted to SSRN Re-Re Financing Civil Litigation:  How Lawyer Lending Might Remake the American Litigation Landscape, Again.  The abstract provides:

Stephen Yeazell has long recognized that changes to case capitalization affect the nature and intensity of civil litigation. So too, writing back in 2001, Yeazell identified the next wave of capital with the capacity to alter the American litigation landscape: third-party litigation finance. In the ensuing decade, that industry, and specifically what I call the “lawyer lending” industry — comprised of lenders who extend capital to plaintiffs’ lawyers to finance personal injury litigation — has blossomed. Today, firms like Advocate Capital and Counsel Financial channel tens of millions of dollars to plaintiffs’ personal injury lawyers each year and seem poised for further expansion.  Picking up where Yeazell left off, this Essay, written in his honor, asks: How might the arrival of lawyer lending transform the capitalization, organization, and sophistication of plaintiff-side practice? And how might changes to plaintiff-side practice affect the quantum and character of personal injury litigation in the United States?


September 13, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Simons on Consent, Assumption of Risk, and Victim Negligence

Ken Simons (Boston University) has posted to SSRN Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence, a chapter in a forthcoming book edited by John Oberdiek.  The abstract provides:

This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim negligence.  Is consent conceptually and normatively distinguishable from assumption of risk?  Yes and no: they differ in some respects, but share a common core.  Are they equally valid bases for precluding, and not merely reducing, recovery?  Yes: court justifiably invoke consent more often than assumption of risk, not because the doctrines differ in principle, but because of factual differences between the most common scenarios in which each arises.  In paradigm consent scenarios, the two parties mutually benefit from the interaction, or the alleged tort-feasor justifiably relies on the other’s assent, but these features are often absent in assumption of risk scenarios.


September 12, 2013 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

OK: Legislature Concludes Special Session

Oklahoma legislators concluded a five-day special session on Monday.  Called by Governor Mary Fallin, the session addressed tort reform in the wake of a June ruling by the state's supreme court that a 2009 tort reform law was unconstitutional.  Legislators passed about two dozen bills addressing, among other things, med mal, class actions, and products liability.  There were disputes about the certificate of merit requirement and an exemption from liability for manufacturers of "inherently unsafe" products.  The San Francisco Chronicle has the story.


September 11, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

Here's One for Class: Heavy Grocery Bag Caused Woman's Death?

This is a great one for your class on causation:

The ABA Journal reports that a man has sued Wal-Mart for negligence in training its employees on how to bag groceries, as well as the plastic bag manufacturer, for the death of his wife.  Yes, his wife allegedly died from a negligently packed plastic grocery bag.  According to the Journal, the plaintiff alleges that the Wal-Mart bagger "overstuffed" the bag, which broke on the way to the car, which caused the groceries to fall on his wife's toe, which caused a cut, which caused an infection, which led to his wife's death.

Thanks to Lisa Smith-Butler for the alert.


September 10, 2013 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Monday, September 9, 2013

Breach of Medical Privacy Suit Filed Over Doctor's Prank on Unconscious Patient

The Los Angeles Times reports on a lawsuit filed against a hospital and anesthesiologist for breach of medical privacy and IIED.  According to the LA Times, the doctor "decorated a patient's face with stickers while the patient was unconscious — giving her a black mustache and teardrops under her left eye — and then a nurse's aide snapped her photo."   The hospital has admitted that the incident occured. 

Thanks to Lisa Smith-Butler for the alert.


September 9, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

GA: Senate Considers Replacing Med Mal with a Compensation System

Georgia's Senate is considering SB 141, a bill that would replace medical malpractice litigation with a compensation system.  The study committee vetting the bill will likely hold 4 or 5 hearings on it.  Organizations representing both trial lawyers and physicians are opposed, so enactment seems unlikely.  Tom Crawford's Georgia Report has the details.


September 6, 2013 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

Dorfman on Assumption of Risk

Avihay Dorfman (Tel Aviv) has posted to SSRN Assumption of Risk, After All.  The abstract provides:

Assumption of risk — the notion that one cannot complain about the harmful state to which one has willingly exposed oneself — figures prominently in our extra-legal lived experience.  In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures.  In recent years, however, growing concerns about junk food consumption, and obesity more generally, have given rise to considerations that are traditionally associated with the principles underlying the doctrine of assumption of risk.  Against this backdrop, I shall advance two claims: a negative and an affirmative one.  The negative claim is that the major objections to the doctrine of assumption of risk are either misplaced or overblown.  And affirmatively, I argue that this doctrine (properly reconstructed to reflect liberal-egalitarian intuitions) can provide an illuminating framework with which to address pressing social concerns such as the one associated with junk food's harmful side-effects.


September 5, 2013 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 4, 2013

Bloom on Tort's Radiating Effects

Anne Bloom (Pacific-McGeorge) has posted to SSRN The Radiating Effect of Torts.  The abstract provides:

The radiating effects of torts should be of great interest. As in other areas of the law, tort practices generate normative messages that influence public discourse and behavior. Somewhat curiously, however, scholarly inquiry into these radiating effects has been limited largely to questions about deterrence. The aim of this essay is two-fold.  The first is to explore how tort law influences social norms and practices in ways other than deterrence.  The second is to suggest how greater attention to these other radiating effects might reveal the almost entirely unexplored role of tort law in shaping social hierarchies.


September 4, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 3, 2013

"Iniuria and the Common Law"

Hart Publishing has just published "Iniuria and the Common Law," edited by Eric Descheemaeker and Helen Scott.  The book description states:

The delict of iniuria is among the most sophisticated products of the Roman legal tradition. The original focus of the delict was assault, although iniuria-literally a wrong or unlawful act-indicated a very wide potential scope. Yet it quickly grew to include sexual harassment and defamation, and by the first century CE it had been re-oriented around the concept of contumelia so as to incorporate a range of new wrongs, including insult and invasion of privacy. In truth, it now comprised all attacks on personality. 

It is the Roman delict of iniuria which forms the foundation of both the South African and-more controversially-Scots laws of injuries to personality. On the other hand, iniuria is a concept formally alien to English law. But as its title suggests, this book of essays is representative of a species of legal scholarship best described as 'oxymoronic comparative law', employing a concept peculiar to one legal tradition in order to interrogate another where, apparently, it does not belong. Addressing a series of doctrinal puzzles within the law of assault, defamation and breach of privacy, it considers in what respects the Roman delict of iniuria overlaps with its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and the degree to which the Roman proto-delict points the way to future developments in each of these three legal systems.


Hart is offering our readers a 20% discount on the book:

August 2013   276pp   Hbk   9781849465038  RSP: £50 / €65 / US$100

20% DISCOUNT PRICE: £40 / €52 / US$80

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website:


Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website:


If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530

Fax Number: 01865 510 710






September 3, 2013 in Books | Permalink | Comments (0) | TrackBack (0)