TortsProf Blog

Keating on Duty in the California Supreme Court

Greg Keating has posted to SSRN Putting "Duty" Back on Track:  Brown v. USA Taekwondo.  The abstract provides:

Brown v. USA Taekwondo—the California Supreme Court’s most recent reckoning with the doctrine of duty in negligence law—is an important and illuminating confrontation with a controverted corner of contemporary tort law. For decades now, California courts have been muddling their way through duty cases. They have been uncertain not only about when an actor bears some responsibility for reducing a risk or mitigating a harm, but also about how they should go about making such determinations. Ironically, perhaps, this predicament is the product of some of the most celebrated and fundamental developments in the law of torts during the latter half of the 20th century. The great California duty decisions of the late 1960s—Rowland v. Christian and Dillon v. Legg—were the bookends to an age of American tort law. MacPherson v. Buick and Palsgraf v. Long Island Railroad inaugurated that age by making reasonable foreseeability of harm the master principle of tort law. Rowland and Dillon brought the age of reasonable foreseeability to a close by showing us that reasonable foreseeability of harm can impose more responsibility than we can bear. Reaching the limits of reasonable foreseeability as the master principle of duty doctrine left courts hard-pressed to say when fundamental responsibilities of care should be expanded and when they should be contracted. Ever since, courts in California and elsewhere have struggled to put duty doctrine back on track. Brown v. USA Taekwondo’s efforts to recast Rowland’s laundry list of relevant factors as a two-step test shows us how we might begin to bring our own age of confusion to a close. Or so I shall argue.

Friehe & Teitelbaum on Duality in Contract and Tort

Tim Friehe & Joshua Teitelbaum have posted to SSRN Duality in Contract and Tort.  The abstract provides:

We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort.

University of St. Thomas (Minnesota) Seeks Torts Visitor

The University of St. Thomas (Minneapolis) School of Law invites applications for at least two Visiting Professor positions at any faculty rank for either the 2023 Fall semester, the 2024 Spring semester, or the full 2023-24 academic year. 

We have specific curricular needs for first year Torts and Lawyering Skills; we will consider candidates’ interest in teaching additional courses in light of our other needs.  Applicants will be expected to teach two classes during a semester visit, and either three or four classes during an academic year visit.

UST Law’s commitments to scholarship, teaching, service, and community are inspired by its mission, which dedicates it, as a Catholic law school, “to integrating faith and reason in the search for truth through a focus on morality and social justice.” We welcome applicants of diverse races, ethnicities, geographic origins, gender identities, ages, socioeconomic backgrounds, sexual orientations, religions, work experience, physical and intellectual abilities, and financial means.

UST Law has been recognized for excellence in various ways (see:https://www.stthomas.edu/law/about/rankings/):

• #23 faculty scholarly impact (Sisk/Leiter methodology)
• #1 in the nation for best practical training (National Jurist) 
• #8 for “quality of student life” (Princeton Review)
• #5 for state and local judicial clerkships (Princeton Review)

UST Law is located in the heart of downtown Minneapolis. The University of St. Thomas is the largest private university in Minnesota, with 10,000 undergraduate and graduate/professional students; eight colleges and professional schools (including schools of business, engineering, health, and others); and 55-plus graduate and professional degree programs.

QUALIFICATIONS

Candidates must have a J.D. from an accredited law school, distinguished academic or professional credentials, and a record of excellence in teaching.

To apply:Please submit a cover letter and C.V. online at http://www.stthomas.edu/jobs/.

You may contact Associate Dean for Academic Affairs Elizabeth Schiltz, at [email protected], with questions.

Review of applications will begin immediately and continue until the positions are filled.  

Lytton on Mexico's Suit Against U.S. Gun-makers

Tim Lytton has a piece in The Conversation about Mexico's lawsuit against U.S. gun-makers for arming its gangs.

Chamallas on Trauma Damages

Martha Chamallas has posted to SSRN Trauma Damages, a paper she delivered at Southwestern's Concluding the Restatement (Third) of Torts symposium last year.  The abstract provides:

The concept of trauma has increasingly been used to describe the experiences of marginalized groups and has a special relevance to systemic injuries and abuses of power that can form the basis of personal injury claims. Although trauma would seem to have everything to do with tort law, not much attention has been paid to trauma and its connection to torts, either with respect to substantive claims or remedies. This article looks at three contemporary contexts of trauma – rape trauma, racial trauma, and birth trauma – and explores their implications for tort recovery. It examines how trauma in each context compares to post-traumatic stress disorder (PTSD) and explains why many trauma victims are unable to qualify for a PTSD diagnosis, even though they experience many symptoms of PTSD. It explores the potential of victims of chronic racism to bring claims for intentional infliction of emotional distress and the possibility of classifying such persons as “eggshell plaintiffs” who are likely to suffer intensified injuries because they experienced trauma in the past. Connecting birth trauma to obstetric violence and mistreatment, it canvasses the sparse case law and the legal obstacles facing persons giving birth, particularly women of color, who are subjected to abuse, coercive tactics, and disrespect by medical personnel. The article calls for a dismantling of the artificial distinction between physical and emotional harm which stymies recovery for traumatic injury and for a recommitment to the eggshell plaintiff rule to respond to the realities of underserved communities marked by violence, injustice, poverty, and deprivation. If the widespread incidence of trauma were reflected in tort doctrine, it could change how we estimate losses and extend more generous tort recoveries beyond the usual class of affluent victims who suffer measurable economic loss.

The Heartbalm Torts on Planet Money

NPR's Planet Money covers the heartbalm torts!  

Thanks to Rick Peltz-Steele for the tip.

Kinzler on No-Fault Auto Insurance

Peter Kinzler has published "No-Fault Auto Insurance:  Third Time the Charm?" in the Milken Institute Review.  Kinzler is a former congressional staffer and former president of the Coalition for Auto-Insurance Reform.  He argues the increases in auto insurance premiums--around 19% last year--make this a good time for a revamped no-fault auto insurance proposal.

JOTWELL Torts: Tilley on Obasogie & Newman on Colorblind Constitutional Torts

At JOTWELL, Cristina Tilley reviews Osagie Obasogie & Zachary Newman's Colorblind Constitutional Torts.  

Harvard's Project on the Foundations of Private Law Seeks Fellow

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2024. The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law, unjust enrichment, restitution, equity, and remedies. The Project seeks applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law.

Application materials are due to Bradford Conner (conner at law.harvard.edu) by 9:00 a.m. on March 5, 2024. Details on both the fellowship and the application can be found at https://plproject.law.harvard.edu/people/ under "Apply to be a Postdoctoral Fellow."

Sperino on the Causation Canon

From Zoë Sinel:

I am thrilled to announce the second speaker in the Tort Law and Social Equality Project Speakers Series. This series features monthly presentations from scholars around the world who work on topics situated at the intersection of torts and social justice. Its aim is to foster debate and dialogue within the academic community focused on these topics and cultivate social justice tort theory as a distinctive field of inquiry. A full list of presenters can be found on the Tort Law and Social Equality (TLSE)  website (see link below).

Our second speaker is Professor Sandra Sperino, the Elwood L Thomas Endowed Professor at the University of Missouri School of Law.  Her talk, "The Causation Canon," will take place on Friday, February 16 at 1pm (EST) over Zoom. The link can be found on the attached poster:   Download Sandra Sperino_Speaker Series 2 (2)

Presentations will be hosted virtually by the University of Toronto Faculty of Law and are open to the public. They will last about 45 minutes and will be followed by a 45-minute Q&A period. Sessions will be recorded and made available for subsequent online viewing. Attendees are not expected to pre-read.

For more information on the Tort Law and Social Equality project, see: https://www.tortlawandsocialequality.ca/

Please share this information widely with students and colleagues. I hope to see many of you there!