TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, January 31, 2022

Goldberg & Zipursky on Tort Theory and S.B. 8

John Goldberg & Ben Zipursky have posted to SSRN their contribution to the Journal of Tort Law's "State of Tort Theory" symposium.  Entitled Tort Theory, Private Attorneys General, and State Action:  From Mass Torts to S.B. 8, the abstract provides:

Late twentieth-century tort theory was dominated by scholars who regarded tort law as public law in disguise, and as primarily as a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. As is now better appreciated among contemporary tort theorists, this approach obscures crucial respects in which tort law is private law—law that empowers persons who have been wronged to redress the wrongs done to them. But in practice and to some degree still in the academy, there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms on which both the ‘right’ and the ‘left’ critique modern mass tort litigation. More troublingly, the problem extends well beyond the field of torts. Indeed, this essay contends that the lawyerly loss of feel for distinctions between public law and private law explains the inability of the United States Supreme Court Justices, in Whole Woman’s Health v. Jackson, to capture why S.B. 8—Texas’s radical anti-abortion statute—really is a private attorney general statute and why, as such, it should be subject to pre-enforcement constitutional review.

January 31, 2022 in Scholarship | Permalink | Comments (0)

Thursday, January 27, 2022

Rabin & Enstrom on No-Fault Compensation for Opioid and Tobacco Victims

Bob Rabin & Nora Engstrom have posted to SSRN The Road Not Taken:  Perspectives on No-Fault Compensation for Tobacco and Opioid Victims.  The abstract provides:

Cigarettes and prescription painkillers have both killed millions of Americans and diminished the lives of tens of millions more. This wreckage has generated waves of prolonged litigation—and, in fact, the evolution of this litigation has been strikingly similar. In both tobacco and in opioids, lawsuits were initially filed by individual victims of defendants’ tortious conduct. But in both instances, one-off suits saw virtually no success, foundering on vast resource disparities and a widespread perception that plaintiffs (smokers on the one hand, “addicts” on the other) were partly or mostly to blame. In time, plaintiffs adapted. States and cities took the reins, and these public actors initiated their own suits. This handoff (from private plaintiffs to public ones) succeeded in many respects. But it relegated individual victims to the sidelines and—crucially—consigned their quest for compensation to the back burner.

In this Essay, we zero in on this compensation question. We explore the fact compensatory claims got pushed aside and note that these claims have generally remained on the periphery. We further observe that, after the tort system left individual victims conspicuously empty-handed, support might have coalesced around the creation of a no-fault compensation scheme for tobacco or opioid-related harms. Yet, discussion of such a scheme has been quiet—and concrete action toward the creation of such a system has been notably non-existent. Why? We chalk this omission up to three stubborn realities. First, the will and capacity to strike a political compromise of this magnitude is lacking. Second, existing no-fault schemes have mixed scorecards, at best. And third, both tobacco and opioid victims pose particular challenges, as a perception that these individuals have contributed to their own harm has undermined any prospect of compensation through a no-fault scheme, just as surely as it dimmed plaintiffs’ prospects for recovery through tort.

January 27, 2022 in Scholarship | Permalink | Comments (0)

Tuesday, January 25, 2022

Simons on the Optimal Level of Generality for Justifying and Categorizing Tort Doctrines

Ken Simons has posted his contribution to the Journal of Tort Law's "State of Tort Theory" symposium, Justifying and Categorizing Tort Doctrines:  What Is the Optimal Level of Generality?  The abstract provides:

This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only 'intermediate' justifications for their decisions (such as dignity, fairness, or reasonableness), rather than 'foundational' ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as 'dignitary' torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all 'dignitary' torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.

January 25, 2022 in Scholarship | Permalink | Comments (0)

Monday, January 24, 2022

Heled, Lytton & Vertinsky on Sperm Bank Liability

Yaniv Heled, Tim Lytton & Liza Vertinksy have posted to SSRN A Wrong Without a Remedy:  Leaving Parents and Children with a Hollow Victory in Lawsuits against Unscrupulous Sperm Banks.  The abstract provides:

For over five years, parents of children conceived with sperm purchased from the Atlanta-based sperm bank Xytex have sued the company for debilitating genetic conditions allegedly originating from the sperm. These lawsuits rely on a wide range of different legal theories, including fraud, negligent misrepresentation, breach of warranty, professional negligence, product liability, unfair trade practices, unjust enrichment, and battery. Until recently, state and federal courts in Georgia dismissed these claims as tantamount to claims for wrongful birth, a cause of action rejected by the Supreme Court of Georgia in 1990. The Supreme Court of Georgia recently distinguished several of the plaintiffs’ theories of recovery from wrongful birth, finally enabling pending claims against Xytex to proceed to discovery. However, this may prove to be a hollow victory because the recovery available under viable claims against Xytex is likely to be insufficient to finance plaintiffs’ litigation efforts. The Supreme Court of Georgia has, for practical purposes, left the victims of unscrupulous sperm banks without a remedy.

January 24, 2022 in Scholarship | Permalink | Comments (0)

Thursday, January 20, 2022

Potential Torts Position at Memphis

From Faculty Lounge:

The University of Memphis Cecil C. Humphreys School of Law invites applications for several tenure-track faculty appointments this year.  While we have a broad range of needs and invite applications from all fields, the Law School has a particular need in Torts and is also particularly interested in hearing from candidates with expertise and interest in Health Law, Race and the Law, Professional Responsibility, and Family Law.  We seek applicants who can demonstrate a potential for excellence in teaching, scholarship, as well as a commitment to service.  We are especially interested in candidates who will enhance the diversity of our faculty and are ready for the future of legal education.

Memphis School of Law is housed in a stately, late 19th century building, a converted federal courthouse in the heart of downtown Memphis on the bluffs overlooking the Mississippi River. Memphis Law has an active and diverse student body, colleagues committed to excellence in both scholarship and teaching, and a community that has the offerings of a major city, such as museums, restaurants, and professional sports, but the feel of a tight-knit community – not to mention affordable cost of living. Please submit applications via The screening of applications will begin on January 20 and will continue until positions are filled. Applicants may also contact Daniel Kiel, Chair of the Faculty Recruitment Committee, at for additional information.  The University of Memphis is an EEO/AA employer. 

January 20, 2022 in TortsProfs | Permalink | Comments (0)

Monday, January 17, 2022

Stone on Distributive and Corrective Justice

Rebecca Stone has posted to SSRN Distributing Corrective Justice.  The abstract provides:

John Gardner argues that while corrective justice is not about doing distributive justice, when we create a system of tort law that gives wronged persons a legal right to corrective justice, we inevitably confront an important question of distributive justice: does 'the system justly distribute access to the corrective justice it dispenses'. It would be distributivity unjust were the system to give one person the legal right to corrective justice of some wrong without giving the same to similarly situated others. At the same time, Gardner contends, the good that tort law is distributing here is 'irreducibly corrective … [which] lends a certain explanatory priority to corrective over distributive justice'.

Is it puzzling to understand corrective justice in the way Gardner suggests? Do Gardner’s observations support the idea that corrective justice enjoys some kind of 'explanatory priority' over distributive justice? Can corrective justice be conceptualized prior to and independent of questions of distributive justice? I don’t think we can get a full answer to these questions without delving more deeply into the nature of private legal rights. I therefore explore these questions by examining the conception of private legal rights that Gardner adheres to alongside the Kantian conception that Gardner rejects. I then propose and defend an intermediate conception. On my conception, there is a singular question of justice at the fundamental moral level that entails corrective and distributive principles whose prescriptions depend on the circumstances. There is no fundamental norm of corrective justice that is distinct from some other fundamental norm of distributive justice. On the contrary, the moral soundness of any corrective legal norm depends inescapably on distributive considerations.

January 17, 2022 in Scholarship | Permalink | Comments (0)

Thursday, January 13, 2022

Mullenix on Conflict of Laws and the Foreign Sovereign Immunities Act

Linda Mullenix has posted to SSRN Federal Courts:  What Law Applies to Nazi-Appropriated Art Under the Foreign Sovereign Immunities Act?.  The abstract provides:

On January 18, 2022, the Supreme Court will hear arguments in Cassirer v. Thyssen-Bornemisza Collection Foundation concerning the legal ownership of an impressionist painting by Camille Pissarro -- Rue Saint-Honoré Afternoon, and Rain Effect -- that the Cassirer family originally purchased in the early twentieth-century. During the 1930s the Nazi regime appropriated the painting and the Jewish painting’s owner fled to the United States. After World War II the painting subsequently changed ownership several times in the United States. Ultimately the painting came into the possession of the Baron Hans Heinrich von Thyssen-Borenmisza of Lugano, Switzerland, who subsequently sold it to the Thyssen-Bornemisza Collection Foundation (TBC) in the Kingdom of Spain.

At the beginning of the twenty-first century several California Cassirer heirs became aware that the Pissarro painting was held in the Thyssen-Bornemisza Collection and was displayed in Madrid. In 2005 the heirs instituted legal proceedings in California federal court pleading California state claims, to recover the painting as the rightful owner. The district court and the Ninth Circuit applied federal common law to determine that the TBC was the rightful owner. After sixteen years of litigation and four appeals to the Ninth Circuit, the Supreme Court will address the appropriate law that federal courts should apply under the Foreign Sovereign Immunities Act when plaintiffs assert state law claims for remediation because of Nazi-era appropriated art. The Court will consider whether federal courts should apply the forum state’s choice of law rules or federal common law.

January 13, 2022 in Current Affairs, Scholarship | Permalink | Comments (0)

Wednesday, January 12, 2022

Ryan on Compensation for Wrongful Conviction and Incarceration

Meghan Ryan has posted to SSRN Compensation for Wrongful Conviction and Incarceration in the United States.  The abstract provides:

Wrongfully convicted and incarcerated individuals in the United States may seek compensation by various means. Traditional common-law tort and civil rights actions are sometimes used as vehicles for recovery, but claimants often recover on these claims in only the most egregious cases due to various immunity defenses and claimants’ inability to establish elements such as a lack of probable cause to arrest or prosecute. Some claimants have found success through moral bills of obligation, but this, too, is quite limited because exonerees often lack the political power necessary to push through such legislation. Claimants are most likely to find compensation for wrongful conviction and incarceration through jurisdictions’ wrongful conviction compensation statutes. Not all jurisdictions have passed such statutes, however, and the existing statutes vary considerably in terms of their requirements for and amounts of compensation. Although these statutes are generally exonerees’ best hopes for recovery, they are often quite unsatisfactory in the compensation that they actually provide. The minimal compensation is at least in part due to jurisdictions’ concerns about the high price tag of adequately compensating wrongfully convicted and incarcerated persons, but there are steps jurisdictions can take to limit the number of wrongful convictions and also mitigate the damages flowing from these wrongs.

January 12, 2022 in Scholarship | Permalink | Comments (0)

Saturday, January 8, 2022

IN: NIED Extended to Child Sexual Abuse by Caretaker

The Indiana Supreme Court has extended negligent infliction of emotional distress.  In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court stated:

"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."

January 8, 2022 in Current Affairs | Permalink | Comments (0)

Friday, January 7, 2022

Happening Today: AALS Torts Section Networking Session and Panel

At 2:00 Eastern, the Section is hosting a Networking Session that features remarks by 2022 Prosser Award honoree Martha Chamallas.

At 3:10 Eastern, the Section and the Natural Resources and Energy Law Section team up to host a panel on "The Rising Tide of Climate Torts."

You can gain access at the AALS Annual Meeting site; you must be registered.

January 7, 2022 in Conferences | Permalink | Comments (0)

Monday, January 3, 2022

JOTWELL Torts: Sebok on Dana on Public Nuisance

At JOTWELL Torts, Tony Sebok reviews David Dana's Public Nuisance Law:  When Politics Fail

January 3, 2022 in Scholarship, Weblogs | Permalink | Comments (0)