TortsProf Blog

Simons on Nonconsequentialist Accounts of Negligence

Ken Simons has posted his contribution to A Research Agenda for Torts (Bublick & Goldberg, eds.) (forthcoming 2025).  Entitled, Exploring Nonconsequentialist Accounts of Negligence and Risky Tradeoffs, the abstract provides:

Negligence doctrine dominates tort law, yet its scope and underlying justification remain contested. One of the most controversial questions is the propriety of employing the Learned Hand test as a criterion of reasonable care or ordinary prudence. Is it helpful, or even essential, to evaluate whether the actor’s burden of taking a precaution (B) is less than the probability of the harm that the precaution would avoid (P) multiplied by the severity of that harm (L)?

The debate about the Hand test is really a debate about more fundamental issues. Does a determination of negligence depend on whether the actor failed to make the proper tradeoff of the advantages and disadvantages of taking a precaution? Is that tradeoff best understood in either narrow economic or broadly utilitarian terms? Or instead in nonconsequentialist or deontological terms?

Suppose the owner of a baseball stadium is deciding how much protection she must provide to spectators at risk of injury from baseballs. Should she simply compare the costs and benefits of more extensive netting? Suppose she is deciding how much protection to offer to bystanders outside the stadium who are at risk but who receive no benefit from the game. Should she now put a thumb on the scale, and thus invest in greater safety precautions than cost-benefit analysis would require? A nonconsequentialist can give an affirmative answer, while a consequentialist cannot.

This chapter will review some of the most illuminating proposals that legal scholars have offered on this topic. But there is a parallel debate in moral philosophy about risky tradeoffs. Fuller understanding of the philosophical literature should be helpful to scholars and practitioners of tort law who try to explain and justify negligence doctrine.

Section IIA of the chapter introduces the Hand test and how it has been understood in case law and legal commentary, while IIB explores alternative conceptions of the test, including both consequentialist and nonconsequentialist variants. Section III reviews an important philosophical literature that addresses, from a nonconsequentialist perspective, what tradeoffs are permissible when actors must choose between alternative courses of action. The discussion first explores tradeoff scenarios in a “certain” world, i.e., when the actor is certain about the results or the circumstances, and then addresses tradeoffs in an “uncertain” world, i.e., when there is a risk but not a certainty that the result will occur or the circumstance will obtain. Section IV considers implications of the analysis.  Subpart A argues that for actors facing risks, the value of the abstract analysis of permissible risk is indirect, because that analysis provides a criterion of permissible conduct, not a concrete decision-procedure. Subpart B identifies implications of the analysis for the standards that should govern autonomous technology and artificial intelligence. Subpart C discusses the value of empirical analysis of the issues addressed in the chapter.

JOTWELL Torts: Robinette on Keating on Tort Theory

At JOTWELL, I review Greg Keating's excellent book, Reasonableness and Risk.

Long & Baxter's Torts: A Modern Approach, 2d Edition

Alex Long and Teri Dobbins Baxter have published with Carolina Academic Press, Torts:  A Modern Approach.  The blurb provides:

This casebook takes a modern approach to the learning that takes place in the first year of law school. It utilizes a mix of classic torts cases and more recent cases, and the notes are limited in number and length to keep students engaged.

Each chapter begins with an outline of key concepts and also a hypothetical set of facts that students can use to orient themselves throughout the chapter. There are also short problems throughout each chapter, which build on the chapter-opening hypothetical, requiring students to apply the law. At the end of each chapter or section there is a short issue-spotting essay question related to chapter content.

The second edition includes updated cases and problems.

Childs on Recreational Activities and Risk

TortsProf's founder, Bill Childs, has written Recreation and Risk for Carolina Academic Press.  The blurb provides:

Recreation and Risk explores the law through recreational businesses—mostly amusement parks, but also water parks, haunted houses, ski resorts, and more. Such an exploration is accessible and provocative—and it offers a chance to explore an array of doctrinal concepts.

First, and most centrally, the book provides students with a look at how a range of legal concepts applies to a particular industry. With this unique single-industry approach, students can glimpse how a broad range of aspects of the law can affect a particular business and can also gain a sense of what in-house attorneys face. Most of this is around civil litigation, with examination of liability issues for design and warning as well as deep dives into comparative fault and assumption of risk, especially inherent risks, as well as waivers. It also includes a look at intentional torts and consent, and the occasional potential for criminal liability.

Second, and relatedly, it includes a good bit of regulatory law—in particular, enough to see how wildly varied the regulatory schemes around one industry can be, and the sometimes unpredictable ways those schemes develop and evolve.

Third, it gives students a chance to revisit some central doctrinal areas beyond the first year of law school. As such, especially with the case study chapter included, it can serve as a capstone course (whether formally designated as one or not).

Bennett: Principles of the Law of Agency (2d ed.)

Howard Bennett has published Principles of the Law of Agency (2d ed.) with Bloomsbury.  The blurb provides:

The 2nd edition of this successful book provides a fully updated, succinct examination of the principles of agency law.

The book explores the rules of attribution, the rights and obligations arising within the agency relationship, the impact of agency in the fields of contract and tort, and the termination of an agent's authority. Throughout the book, full consideration is given to the issues arising under the Commercial Agents (Council Directive) Regulations 1993. The discussion is informed not only by common law authority that constantly nourishes the development of agency law principle, but also by international soft law instruments and the Restatement of the Law, Third: Agency.

Discount Price: £31.99

Order online at www.bloomsbury.com  – use the code GLR AT5 to get 20% off!

Long & Baxter's Torts: A Modern Approach, Second Edition

Alex Long & Teri Dobbins Baxter are publishing Torts:  A Modern Approach (2d ed.).  The blurb provides:

This casebook takes a modern approach to the learning that takes place in the first year of law school. It utilizes a mix of classic torts cases and more recent cases, and the notes are limited in number and length to keep students engaged.

Each chapter begins with an outline of key concepts and also a hypothetical set of facts that students can use to orient themselves throughout the chapter. There are also short problems throughout each chapter, which build on the chapter-opening hypothetical, requiring students to apply the law. At the end of each chapter or section there is a short issue-spotting essay question related to chapter content.

A complimentary copy can be ordered here.

Forthcoming May 2024 | ISBN 978-1-5310-2547-2 | casebound | TEACHER’S MANUAL FORTHCOMING

Landmark Cases in the Law of Punitive Damages

James Goudkamp and Eleni Katsampouka have published Landmark Cases in the Law of Punitive Damages with Hart Publishing.  The blurb provides:

Punitive damages are private law's most controversial remedy. This book traces the development of the jurisdiction from the foundational decisions of Huckle v Money and Wilkes v Wood in England, to leading modern cases such as Harris v Digital Pulse Pty Ltd in Australia, Whiten v Pilot Insurance Co in Canada, Couch v AG (No 2) in New Zealand, PH Hydraulics and Engineering Pte Ltd v Airtrust (Hong Kong) Ltd in Singapore and Mathias v Accor Economy Lodging, Inc and State Farm Mutual Automobile Insurance Co v Campbell in the United States. Many of the decisions addressed are not only landmarks regarding punitive damages but are among the most important judgments delivered in private law more generally.

The essays, which are written by leading scholars from a wide range of jurisdictions, cast new light on the cases covered. They do so by examining their historical antecedents and the impact that they have had on the development of the law. The full spectrum of issues regarding punitive damages is addressed including the insurability of punishment, constitutional constraints on the remedy's availability and whether the award should be confined to particular causes of action. The collection will be of interest to all scholars and students of private law. It concentrates on common law cases although civilian perspectives, drawn from France and Germany, are also offered.

Order online at www.bloomsbury.com  – use the code GLR AQ7 to get 20% off!

Mullenix: Public Nuisance: The New Mass Tort Frontier

Linda Mullenix has published Public Nuisance:  The New Mass Tort Frontier with Cambridge University Press.  The blurb provides:

In Public Nuisance, Linda Mullenix describes the landscape of 21st century mass tort litigation involving public harms – including lead paint, opioids, firearms, e-cigarettes, climate change, and environmental pollution – and the novel theory of public nuisance that lawyers and local governments have used to receive compensation from those who have created public nuisances. The book surveys conflicting judicial decisions rooted in common law and statutory interpretation and evaluates the competing arguments for and against the expansion of public nuisance law. Mullenix argues that that the development of public nuisance theory is part of the historical arc of mass tort litigation and suggests a middle approach to new public nuisance law, namely that we should embrace the common law and legislated public nuisance statutes.

Nolan: Questions of Liability

Donal Nolan has published Questions of Liability with Bloomsbury.  The blurb provides:

In this collection, one of the key commentators on the modern law of tort presents 12 of his most important articles and book chapters. These are accompanied by an introductory chapter in which the author comments on the impact and reception of the pieces that make up the collection, and by a provocative new essay in which he argues against strict product liability in the law of tort. A coherent and compelling exploration of topical issues in core areas of tort law, the collection is divided into 3 parts, dealing with negligence; nuisance and Rylands v Fletcher; and tort in general. The essays in this collection are a significant contribution to debates about the limits and scope of tortious liability in common law systems. Students, scholars and practitioners alike will find it an invaluable resource for understanding tort law in the early 21st century.

Discount Price: £68

Order online at www.bloomsbury.com  – use the code GLR AQ7 to get 20% off!

Tort Law: The Children's Book!

The ever-creative Kyle Graham and his daughter have written and illustrated (using felt!) Tort Law for Children.  The illustrations can be useful for class discussions.  Check it out!

Bant: The Culpable Corporate Mind

Elise Bant (as editor) has published The Culpable Corporate Mind from Bloomsbury.  The blurb provides:

This collection examines critically, and with an eye to reform, conceptions and conditions of corporate blameworthiness in law. It draws on legal, moral, regulatory and psychological theory, as well as historical and comparative perspectives. These insights are applied across the spheres of civil, criminal, and international law.

The collection also has a deliberate focus on the 'nuts and bolts' of the law: the legal, equitable and statutory principles and rules that operate to establish corporate states of mind, on which responsibility as a matter of daily legal practice commonly depends.The collection therefore engages strongly with scholarly debates.

The book also speaks, clearly and cogently, to the judges, regulators, legislators, law reform commissioners, barristers and practitioners who administer and, through their respective roles, incrementally influence the development of the law at the coalface of legal practice.

Order online at www.bloomsbury.com  – use the code GLR BE1UK for UK orders and GLR BE1US for US orders to get 20% off!

Outside In: The Oral History of Guido Calabresi

Norman Silber has published Outside In:  The Oral History of Guido Calabresi with Oxford University Press.  The blurb provides:

Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.

Outside In is a unique sort of account, written in Guido's remarkable voice based on recordings that which took place over a decade. The book is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.

Updated:  The author was kind enough to provide a code for 30% off:  ALAUTHC4 

CFP: Oxford Studies in Private Law Theory, Volume III

Oxford University Press is pleased to announce a call for papers for volume three of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers).

Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory.  The series publishes exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general.  Submissions should be approximately 12,000 words, inclusive of footnotes.  The *updated* deadline for submission is Feburary 28th, 2023.

All accepted papers will be presented at a workshop at the Max Planck Insitute for Comparative and International Private Law in Hamburg, June 30-July 1, 2023. The Notre Dame Program on Private Law and the Max Planck Institute will cover the expense of contributors’ travel and accommodation. 

Please send submissions to both Paul Miller (paul dot miller at nd dot edu) and John Oberdiek (oberdiek at rutgers dot edu).

The full announcement is here.

Keating: Reasonableness and Risk

Late last month, Greg Keating published his new book, Reasonableness and Risk:  Right and Responsibility in the Law of Torts.  The blurb provides:

The law of torts is concerned with what we owe to one another in the way of obligations not to interfere with, or impair, each other's urgent interests as we go about our lives in civil society. The most influential contemporary account of tort law treats tort liability rules as shadow prices. Their role is not to vindicate claimants' own rights and interests, but to induce us to injure one another only when it is economically efficient to do so. The chief competitors to the economic view take tort law's importance to lie primarily in the duties of repair that it imposes on wrongdoers, or in the powers of recourse that it confers on the victims of tortious wrongs.

This book argues that tort law's primary obligations address a domain of basic justice and that its rhetoric of reasonableness implies a distinctive morality of mutual right and responsibility. Modern tort law is preoccupied with, and responds to, the special moral significance of harm. That special significance sometimes justifies standards of precaution more stringent than those prescribed by efficiency. This book also examines the regulatory and administrative institutions with which the common law of torts cooperates and competes, treating these as part of a continuum of institutions that instantiate the primary role pursued by modern tort law - that is, to protect our physical integrity and other essential interests from impairment and interference by others, and to do so terms that all those affected might accept as justifiable.

Morgan: Great Debates in Tort Law

Jonathan Morgan has published Great Debates in Tort Law with Hart Publishing.  The blurb provides:

Exploring the key discussions and arguments in tort law, this book enables students to get a deeper and more rounded understanding of the subject.

Part of the Great Debates series, it is an engaging introduction to the more advanced legal concepts, such as negligent breach of duty and vicarious liability. Each chapter is structured around questions and debates that provoke deeper thought. It features summaries of the views of notable experts on key topics and each chapter ends with a list of further reading.

This book is ideal for use by ambitious students alongside a main course textbook, encouraging them to think critically, analyse the topic and gain new insights. The development of these skills and the discursive nature of the series, with an emphasis on contentious topics, means the book is also useful for students when preparing their dissertations. Suitable for use on courses at all levels, this book helps students to excel in coursework and exams.

Giliker: Vicarious Liability in the Common Law World

Paula Giliker has published Vicarious Liabilty in the Common Law World with Hart Publishing.  The blurb provides:

This book is the one place to find unprecedented access to case-law, doctrinal debates and comparative reflections on vicarious liability from across the common law world. The doctrine of vicarious liability, that is strict liability for the torts of others, represents one of the most controversial areas of tort law. Unsurprisingly it is a doctrine that has been discussed in the highest courts of common law jurisdictions. This collection responds to uncertainties as to the operation of vicarious liability in twenty-first century tort law by looking at key common law jurisdictions and asking expert scholars to set out and critically analyse the law, identifying factors influencing change and the extent to which case-law from other common law jurisdictions has been influential. The jurisdictions covered include Canada, England and Wales, Australia, Singapore, Ireland, Hong Kong and New Zealand.

In providing critical analysis of this important topic, it will be essential and compelling reading for all scholars of tort law and practitioners working in this field.

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

Sign up to our email list to receive updates about our new titles.

Common Law and Civil Law Perspectives on Tort Law

Mauro Bussani, Tony Sebok, and Marta Infantino have published with OUP Common Law and Civil Law Perspectives on Tort Law.  The blurb provides:

The book provides scholars, lawyers and law students with a comparative overview of the law of civil liability for injuries arising outside of contract in five major legal systems in the common law and civil law traditions: England, the United States, France, Germany and Italy. The book analyzes a select number of foundational issues that lie at the core of tort law in all the jurisdictions surveyed, and takes them as points of comparison for appreciating commonalities and differences between the common law and the civil law traditions, as well as within these traditions. The analysis covers the structure and context of tort law architectures, the role of negligence and the continuum between fault and strict liability, rules on recovery for personal injuries, non-economic losses and for pure economic losses, tests and approaches to causation, medical malpractice and products liability regimes. As such, the book provides an updated and enriched framework for understanding the rules, the theories, the styles of reasoning and the tort law cultures across the Atlantic.

Thanks to Richard Wright for the tip.

Sharkey, Wu, Walsh & Offit on DTC Genetic Testing

Cathy Sharkey, Xiaohan Wu, Michael Walsh, and Kenneth Offit have posted to SSRN Regulatory and Medical Aspects of DTC Genetic Testing.  The abstract provides:

The recent Food and Drug Administration (FDA) marketing authorizations granted for testing mutations associated with hereditary breast and colon cancer, as well as pharmacogenomic susceptibilities, provide an opportunity to reexamine the medical as well as regulatory underpinnings of direct-to-consumer genetic testing (DTC-GT). In this chapter, we make the case for federal regulation of DTC-GT at two levels: protecting consumers/patients who access particular tests and building an informational environment for genetic testing that supports innovation in the aggregate.

Aristova & Grušić: Civil Remedies and Human Rights in Flux

Ekaterina Aristova and Uglješa Grušić have edited Civil Remedies and Human Rights in Flux with Hart Publishing.  The blurb provides:

What private law avenues are open to victims of human rights violations? This innovative new collection explores this question across sixteen jurisdictions in the Global South and Global North. It examines existing mechanisms in domestic law for bringing civil claims in relation to the involvement of states, corporations and individuals in specific categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions. Taking a truly global perspective, it assesses the question in jurisdictions as diverse as Kenya, Switzerland, the US and the Philippines. A much needed and important new statement on how to respond to human rights violations.

Order online at www.bloomsbury.com  – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!

Leow on Corporate Attribution in Private Law

Rachel Leow has published Corporate Attribution in Private Law with Hart Publishing.  The blurb provides:

Looking at key questions of how companies are held accountable under private law, this book presents a succinct and accessible framework for analysing and answering corporate attribution problems in private law.

Corporate attribution is the process by which the acts and states of mind of human individuals are treated as those of a company to establish the company's rights, duties, and liabilities. But when and why are acts and states of mind attributed in private law?

Drawing on a wide range of material from across the disparate areas of company law, agency law, and the laws of contract, tort, unjust enrichment, and equitable obligations, this book's central argument is that attribution turns on the allocation and delegation of the company's own powers to act. This approach allows for a much greater and clearer understanding of attribution. A further benefit is that it shows attribution to be much more united and coherent than it is commonly thought to be. Looking at corporate attribution across the broad expanse of the common law, this book will be of interest to lawyers across the common law world, including the United Kingdom, Australia, Canada, and Singapore.

Order online at www.bloomsbury.com  – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!