Tuesday, October 26, 2021
Monday, October 25, 2021
Friday, October 22, 2021
Ellie Bublick has posted to SSRN China's New Tort Law: The Promise of Reasonable Care. The abstract provides:
This paper enters the unfolding dialogue about Chinese and American tort law. The paper addresses some similarities and differences between the written provisions of China's Tort Liability Law and U.S. tort law provisions. It then commends a principle that has become central to American tort law—building a tort system that functions to encourage reasonable care for the physical safety of others. Finally, the paper suggests a way in which American tort law could be improved by considering China's adoption of uniform guidelines for certain issues that do not require individuation—an approach which could reduce litigation costs and increase consistency.
Wednesday, October 20, 2021
Daniel Pi has posted to SSRN The Limits of Behavioral Economics in Tort Law. The abstract provides:
Skeptics of rational choice theory have long predicted that behavioral economics would radically transform the legislation, adjudication, and analysis of law. Using tort law as an exemplar, this Article maps out the narrow set of conditions where substantive law can be modified to accommodate irrational decision-makers. Specifically, this Article demonstrates that if injurers are systematically biased, and the due care standard can be expressed quantitatively, and victims are unable to take meaningful precautions, then imposing punitive damages can induce irrational injurers to exercise efficient precautionary care. In all other cases, it is better that the law adopt a presumption of rationality, regardless whether individuals behave rationally in fact.
Monday, October 18, 2021
Thursday, October 14, 2021
Richard Peltz-Steele has posted his casebook, Tortz: A Study of American Tort Law, to SSRN. The abstract provides:
This textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. When complete, chapters will cover: (1) introduction, (2) intentional torts, (3) defenses to intentional torts, (4) negligence, (5) defenses to negligence, (6) subjective standards, (7) strict liability, (8) necessity, (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation (scope of liability), (13) affirmative duty, (14) nuisance, (15) media torts, (16) business torts, (17) worker compensation, and (18) government liability and "constitutional tort." This pedagogy is built on the teachings of Professor Marshall S. Shapo. Chapters will be added as they are completed, anticipating the full work by the end of 2022.
Wednesday, October 13, 2021
Andrew Gold has posted to SSRN The Reasonably Loyal Person. The abstract provides:
This chapter is a contribution to a book on John Gardner’s work in private law theory. The chapter takes up a puzzle that Gardner raised: why is there no “reasonably loyal trustee” in fiduciary law? Notably, he proposes that the role of a trustee might lack a law-independent counterpart. That, in turn, could make it impossible for trust law (and by implication, fiduciary law) to “pass the buck” to whatever it is that the “reasonably loyal person” would do. I will suggest that fiduciary relationships frequently do have law-independent counterparts, and moreover that such counterparts can evolve over time. Relatedly, I will argue that a wide range of extra-legal conceptions of loyalty are available for buck passing purposes; not all loyalty is built on a prior meaningful relationship between a loyal party and the object of her loyalty. Lastly, I will conclude with some thoughts on why buck passing could be valuable.
Monday, October 11, 2021
Alex Long has posted to SSRN The Statutification of Tort Law Involving the Workplace. The abstract provides:
The phenomenon of the "tortification" of employment law involves the consideration and importation of common-law tort principles when interpreting statutory anti-discrimination law. This Article explores the other side of the coin: the “statutification” of tort law as it applies to the workplace. State courts have only infrequently partaken in this enterprise, even in situations in which the two areas of law involve similar issues. This Article suggests that at least some limited form of statutification of tort law as it pertains to the workplace might be useful.
Friday, October 8, 2021
Jeremy Waldron has posted to SSRN On Duty. The abstract provides:
Duties are normally understood prescriptively, in terms of the particular action a given duty requires. This essay, however, considers an alternative understanding. Duties may be understood by reference to situations for which the duty-bearer takes responsibility. (Not responsibility in a causal sense, but responsibility in a forward-looking sense--like being "on duty"). The paper explores the difference between these two understandings of duty and the attractions of the situational version. One attractive feature of the situational understanding is that it is open-ended (rather than settled and determinate) in the sense it conveys of what might be expected of the duty-bearer.
Wednesday, October 6, 2021
Greg Keating has posted to SSRN Corrective Justice: Sovereign or Subordinate?. The abstract provides:
This chapter discusses the concept of corrective justice, which has been at the heart of much recent scholarship on the law of torts in particular, and private law more generally. Notwithstanding its familiarity, ancient origin, and apparent universal acceptance, the concept of corrective justice has produced a remarkable number of distinct conceptions and has stirred up major controversies. For at least a generation, corrective justice stood at the center of the argument between economic and non-economic theories of tort. For legal econo¬mists, corrective justice was an aspect of the institution of tort law. It was part of the data that needed to be explained and justified in economic terms. Corrective justice was subor¬dinate. It was a feature of—not a justification for—the institution of tort law. For legal philosophers Ernest Weinrib and Jules Coleman—who championed corrective justice as the counter-theory to economic analysis—corrective justice was sovereign. It was both in¬stantiated in the institution of tort law and the justification for the institution. It was incipiently and powerfully normative. Furthermore, the justification that corrective justice supplied was formal, not instrumental. The chapter explains and analyzes corrective justice in light of this history, in the hope that this will set the stage for tort theory to move forward.
Tuesday, October 5, 2021
Richard Wright has posted to SSRN Legal Proof: Foundherentism and Statistical Evidence. The abstract provides:
This paper is one of several papers initially presented at a conference in March 2020 at the University of Girona, in Spain, in honor of Susan Haack, which will be published after translation into Spanish by Marcel Pons. This paper discusses (i) Haack's important work on proving causation or any other alleged facts, which focuses on case law and academic doctrine in the USA, and (ii) recent important work on the standard of proof in civil cases in Europe collected in Standards of Proof in Europe (Lubos Tichy ed., Mohr Siebeck, 2019). The standard of proof for civil cases in civil law jurisdictions is generally considered to be much higher than the standard of proof stated in common law jurisdictions. In both types of jurisdiction, and especially in civil law jurisdictions, the standard of proof in civil cases generally requires the formation of an at least minimal belief in the truth of the relevant facts, based on the concrete facts in the particular case. Statistical frequencies, no matter how high, will not suffice.
Monday, October 4, 2021
Greg Keating has posted to SSRN his piece in the most-recent issue of the Journal of Tort Law, Form and Substance in the "Private Law" of Torts. The abstract provides:
Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses, have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where (1) persons bring claims in their own names for (2) harms that they have wrongly suffered against (3) those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, our pressing interest in the physical integrity of our persons grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category of tort as its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. Tort is one institutional instrument available to us to secure diverse, important interests against interference and impairment. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm. Our private law of torts competes and cooperates with these bodies of law and cannot be understood in isolation from them.
Friday, October 1, 2021
Martha Chamallas has posted to SSRN Social Justice Tort Theory, her contribution to the Journal of Tort Law's symposium on "The State of Tort Theory." The abstract provides:
Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).