TortsProf Blog

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!

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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!

Murphy on Economic Torts

John Murphy has published The Province and Politics of the Economic Torts with Hart Publishing.  The blurb provides:

Economic torts play a key role in the development of private law more generally. Indeed, the landmark case of OBG v Allan (2008) provided one of the most important decisions in the whole of the law of torts in the last generation, as the House of Lords sought to bring order to an area of the law that has long been beset by doctrinal and theoretical puzzles. Probably the most enduring question of all in this area is whether the economic torts can be unified. This book argues that the search for unity is a will o' the wisp. More particularly, it shows that although some juridical connections exist between some of these torts, there is far more that separates them than unites them. Offering a unique perspective, this is a landmark publication on the law of economic torts.

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

Abraham & White: Tort Law and the Construction of Change

Ken Abraham and Ted White have published, with UVa Press, Tort Law and the Construction of Change:  Studies in the Inevitability of History:

The book argues that two versions of history–one grounded in the application of previous legal rules and the other responsive to larger societal changes—must be considered in tandem to grasp fully how American tort law has evolved over time. The book covers a number of understudied areas of tort law, such as liability for nonphysical harm—including lawsuits for defamation, privacy, emotional distress, sexual harassment, and the hacking of confidential information—and aspects of tort litigation that have now disappeared, such as the prohibition against "interested" parties testifying in civil actions and the intentional infliction of temporal damage without justification. What emerges is a picture of the complicated legal dance American judges performed to cloak radical changes in tort law in response to social transformations. When confronting established tort doctrines under pressure from emerging social changes, the courts found ways to preserve at least the appearance of doctrinal continuity.

Order it here.  I just bought my copy!

Peltz-Steele's Casebook

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.

Punishment and Private Law

Bloomsbury has released Punishment and Private Law, edited by Elise Bant, Wayne Courtney, James Goudkamp & Jeannie Paterson.  The blurb provides:

Does private law punish? This collection answers this complex but compelling question. Lawyers from across the spectrum of the law (contract, tort, restitution) explore exactly how it punishes wrong doing. These leading voices ask whether that punishment is effective and what its societal role might be. Taking the discussion out of the technical and into a broader realms of a wider purpose, it is both compelling and thought-provoking.

Order online at www.bloomsbury.com – use the code UG8 at the checkout to get 20% off your order!

Sinai & Shmueli on Maimonides and Tort Theory

Yuval Sinai & Benny Shmueli have published Maimonides and Contemporary Tort Theory with Cambridge University Press.  The blurb provides:

Maimonides lived in Spain and Egypt in the twelfth century, and is perhaps the most widely studied figure in Jewish history. This book presents, for the first time, Maimonides' complete tort theory and how it compares with other tort theories both in the Jewish world and beyond. Drawing on sources old and new as well as religious and secular, Maimonides and Contemporary Tort Theory offers fresh interdisciplinary perspectives on important moral, consequentialist, economic, and religious issues that will be of interest to both religious and secular scholars. The authors mention several surprising points of similarity between certain elements of theories recently formulated by North American scholars and the Maimonidean theory. Alongside these similarities significant differences are also highlighted, some of them deriving from conceptual-jurisprudential differences and some from the difference between religious law and secular-liberal law.

Feminist Torts Judgments: Pruitt's Commentary on Boyles v. Kerr

Lisa Pruitt has posted to SSRN Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments:  Rewritten Torts Opinions.  The abstract provides:

This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

Gold Reviews Smith on the Structure of Remedial Law

Andrew Gold has posted to SSRN his review of Stephen Smith's Rights, Wrongs, and Injustices:  The Structure of Remedial Law.  The abstract provides:

This paper is a draft review of Stephen Smith’s recent book -- Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019). The book offers a groundbreaking and deeply insightful theory of the remedies in private law. On Smith’s account, remedies are judicial rulings, and they are issued because they provide people with new reasons for action. This review will focus on a jurisprudential puzzle that lies at the center of the book. Rights, Wrongs, and Injustices provides an original account of the authority in court orders. I will suggest that the book is right that the authority in court orders is distinctive, but wrong in its analysis of what grounds that authority. Considering this question, however, sheds significant new light on the law of remedies and on private law as a whole.

Kinzler's Highway Robbery

Peter Kinzler has just published Highway Robbery about the battle over no-fault automobile insurance in Congress.  The blurb provides:

In Highway Robbery Peter Kinzler delivers a fast-paced behind-the-scenes account of two federal legislative efforts twenty years apart—one from the political left and one from the right—to reform America’s auto insurance system to make it fairer and more affordable. He explains how the legislation was designed to achieve those objectives and describes the political challenge of trying to overcome the entrenched special interest opposition of those who stood to lose billions—trial lawyers and insurers—if the new no-fault system were adopted.

Highway Robbery provides readers with both a primer on how fault and liability auto insurance, no-fault, and no-fault choice insurance policies work and who benefits most from which system. Peter Kinzler, with years of experience as a congressional staffer and in the private sector, is the perfect guide through these important policy and political fights, enlivened with revealing firsthand sketches of the legislators, staffers, academics, and lobbyists who played major roles in these attempts as well as their interplay with each other. Drawing upon his decades of engagement with the issues Kinzler shows how thoughtful and skilled members of Congress, good staff, and thorough academic research can lay the groundwork for important reform legislation; in doing so he provides a model for restoring Congress’s effectiveness, whenever it chooses to resume exercising its constitutional authority as the legislative branch of government.

Highway Robbery details how the trial bar used the levers of political power first to undermine state no-fault laws and then to use the weaknesses they had implemented in the laws to undermine passage of federal legislation. It also describes the surprising alliance in opposition between the trial bar and famed consumer advocate Ralph Nader. No-fault continues to hold the promise of better compensation and dramatic premium reductions, with the largest savings available to those who need them most—low- and moderate-income drivers. The most likely scenario for further federal consideration of auto insurance reform would be in the context of congressional action on universal health insurance.

The book is available at Amazon on Wednesday and can be pre-ordered here.

Miller & Oberdiek's Introduction to Civil Wrongs and Justice in Private Law

Paul Miller and John Oberdiek have posted Introduction to Civil Wrongs and Justice in Private Law.  The abstract provides:

This introduction to Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds., Oxford University Press, 2020) provides a thematic overview of the significance of civil wrongs to debate over conceptual and normative questions in private law theory, as well as a discussion of the contributions to the volume. The volume includes chapters by the editors and María Guadalupe Martinez Alles, Ahson Azmat, Nicolas Cornell, Christopher Essert, Lee Fennell, Kimberly Kessler Ferzan, Andrew Gold, John Goldberg, Ori Herstein, Larissa Katz, Gregory Keating, Liam Murphy, David Owens, James Penner, Jeffrey Pojanowski, Matthew Shapiro, Adam Slavny, Stephen Smith, Findlay Stark, Victor Tadros, and Benjamin Zipursky.