TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, April 16, 2021

Justifying Private Rights

Simone Degeling, Michael Crawford, and Nicholas Tiverios have published Justifying Private Rights by Hart Publishing.  The blurb provides:

Many of the most influential contributions to private law scholarship in the latter part of the twentieth century go beyond purely doctrinal accounts of private law. A distinctive feature of these analyses is that they straddle the divide between legal philosophy, on the one hand, and the sort of traditional doctrinal analysis applied by the courts, on the other. The essays contained in this collection continue in this tradition. The collection is divided into two parts. The essays contained in the first part consider the nature of, and justification for, private rights generally. The essays in the second part address the justification for particular private law rights and doctrines. Offering insightful and innovative analyses, this collection will appeal to scholars in all fields of private law and legal theory.

Feb 2021   |   9781509931958   |   296pp   |   Hbk   |    RSP: £80  

Discount Price: £64

Order online at www.hartpublishing.co.uk – use the code UG7 at the checkout to get 20% off your order!

April 16, 2021 in Books, Scholarship | Permalink | Comments (0)

Monday, March 15, 2021

Swan on Tort Law and Feminism

Sarah Swan has posted to SSRN Tort Law and Feminism.  The abstract provides:

Tort law has not been a sympathetic audience for feminist legal scholars. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it towards pursuing goals of social justice or equality. Nevertheless, some feminist redirection has been achieved, mostly through statutory intervention, thus laying the groundwork for further development. This chapter imagines what tort law might look like if it more fully embraced feminist reforms. Focusing on four foundational concepts in tort law – duty, third-party liability, harm, and damages – this chapter uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. Noting the places where feminist paths have already been forged, this chapter explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates existing social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.

The piece is forthcoming in Oxford Handbook on Feminism and the Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna Williams, eds) (2021).

March 15, 2021 in Books, Scholarship | Permalink | Comments (0)

Tuesday, February 23, 2021

Goldberg & Zipursky Respond to Sharkey's Review of Recognizing Wrongs

In December, I posted about Cathy Sharkey's review of Recognizing Wrongs, by John Goldberg & Ben Zipursky.  They have now responded in "Thoroughly Modern Tort Theory."

February 23, 2021 in Books, Scholarship | Permalink | Comments (0)

Friday, February 19, 2021

Stapleton: Three Essays on Torts

Oxford University Press has published Jane Stapleton's Clarendon Law Lectures as Three Essays on Torts.  The blurb provides:

This book of essays champions tort scholarship that puts judges at centre stage: what they do, how they understand their role, the heterogeneous reasons they give for their decisions, and their constitutional responsibility to identify and articulate the 'living' and 'evolving' common law. This is 'reflexive tort scholarship'. Reflexive tort scholars seek dialogue with Bench and Bar. Their approach is very different from the currently fashionable academic search for 'grand theories' that descriptively assert that tort law is fundamentally 'all about one thing', a unifying idea that alone explains and justifies the whole of tort law. This book illustrates the advantages and pay-offs of the reflexive style of scholarship by showing how it illuminates key features of tort law. The first essay contrasts the reflexive approach with the Grand Theory approach, while the second essay identifies a principle of tort law (the 'cooperative principle'), that is latent in the cases and that vindicates the value of collaborative human arrangements. Identifying this principle calls into question, in disputes between commercial parties, the reasoning used to support one of the most entrenched lines of authority in tort law - that based on the famous case of Hedley Byrne v Heller. The final essay deploys the reflexive method to argue that the iconic 'but-for' test of factual causation is inadequate and narrower than the concept actually utilized in the cases. Application of the method also prompts a reassessment of the 'scope of duty' concept and of the appropriate characterisation of the much-discussed decision in SAAMCO. These essays, based on the 2018 Clarendon Law Lectures given at Oxford University, clearly demonstrate the value of scholarship that 'takes the judges seriously'.

A flyer containing a discount is here:  Download Stapleton_-_Three_Essays_on_Torts

February 19, 2021 in Books, Scholarship | Permalink | Comments (0)

Wednesday, February 17, 2021

McBride: Private Law Book Reviews 2015-2020

Nicholas McBride has posted to SSRN Private Law Book Reviews 2015-2020.  The abstract provides:

This collects together a number of reviews of books on private law published over the last five years, including: Gardner, From Personal Life to Private Law; Ripstein, Private Wrongs; and Goldberg and Zipursky, Recognizing Wrongs.

February 17, 2021 in Books, Scholarship | Permalink | Comments (0)

Monday, February 15, 2021

Smith Reviews Recognizing Wrongs

Stephen Smith has posted to SSRN Taking Torts Seriously, his review of Recognizing Wrongs by John Goldberg and Ben Zipursky.  The abstract provides:

In Recognizing Wrongs, John Goldberg and Benjamin Zipursky argue that tort law is just what ‘it looks to be’—and that what it looks to be is a law of wrongs and recourse. According to Goldberg and Zipursky, it is not necessary to turn to economics, sociology, philosophy or any other discipline to understand tort law: it is sufficient to take seriously judges' reasons for why they decide tort cases as they do. In advancing this argument, the authors seek to distinguish themselves from two influential camps in contemporary tort theory: (1) theories that argue that tort law’s rights are ‘rights’ in only a nominal sense; and (2) theories that regard tort law’s rights as genuine but that defend those rights by invoking a comprehensive moral theory. In this review essay, I argue that Goldberg and Zipursky largely succeed in their ambitions. The reservations that I explore are two-fold. First, certain tort remedies are not recourse for wrongs, even at the level of appearances. Second, it is not easy to construct a theory of tort law while sticking as close to tort law’s appearances as Goldberg and Zipursky purport to stick. The theory that Goldberg and Zipursky ultimately defend relies on certain philosophic ideas (though it does not rely on a comprehensive moral theory). It is also complex, multi-layered, and skeletal in its account of tort law’s primary duties—and so, for some scholars, it may appear to be less of a ‘theory of tort law’ than those offered by their competitors (though I argue that this feature is a virtue of their account).

February 15, 2021 in Books, Scholarship | Permalink | Comments (0)

Tuesday, January 12, 2021

Robinette on Prosser

I have posted to SSRN Scholars of Tort Law:  Professor William Lloyd Prosser (1898-1972).  The abstract provides:

This chapter, presented at Oxford at the “Scholars of Tort Law” conference, is concerned with William Prosser, the most important U.S. tort scholar of the twentieth century. Prosser exerted considerable influence on the development of several specific tort doctrines, notably strict products liability, privacy, and intentional infliction of emotional distress. Instead of his well-known contributions to these discrete torts, this chapter focuses more broadly on Prosser’s overall effects, particularly regarding the paramount tort of negligence. Prosser attempted to adjust negligence to two Realist challenges: Realists’ belief in the public nature of seemingly private disputes and the undermining of certainty caused by emphasising the facts of each case. To the first challenge, Prosser reconceptualised the elements of negligence as involving public policy choices. To the second, Prosser attempted to present a negligence formula that was both flexible and predictable. Prosser succeeded in presenting a more flexible negligence formula incorporating public policy factors, but failed in enhancing predictability, with far-reaching consequences for tort law as a compensatory mechanism.

January 12, 2021 in Books, Conferences, Scholarship, TortsProfs | Permalink | Comments (0)

Tuesday, December 29, 2020

Nolan on Winfield

Donal Nolan has posted to SSRN Scholars of Tort Law:  Professor Sir Percy Winfield (1878-1953).  The piece comes from a conference at Oxford in 2018 and published as a book last year; the abstract provides:

This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.

December 29, 2020 in Books, Conferences, Scholarship, TortsProfs | Permalink | Comments (0)

Friday, December 11, 2020

Feminist Judgments: Rewritten Torts Opinions

Martha Chamallas & Lucinda Finley have edited Feminist Judgments:  Rewritten Torts Opinions.  The blurb provides:

By rewriting both canonical and lesser-known tort cases from a feminist perspective, this volume exposes gender and racial bias in how courts have categorized and evaluated harm stemming from pre-natal malpractice, pregnancy loss, domestic violence, sexual assault and harassment, invasion of privacy, and the award of economic and non-economic damages. The rewritten opinions demonstrate that when confronted with gendered harm to women, courts have often distorted or misapplied conventional legal doctrine to diminish the harm or deny recovery. Bringing this implicit bias to the surface can make law students, and lawyers and judges who craft arguments and apply tort doctrines, more aware of inequalities of race, gender, class, and sexual orientation or identity. This volume shows the way forward to make the basic doctrines of tort law more responsive to the needs and perspectives of traditionally marginalized people, in ways that give greater value to harms that they disproportionately experience.

December 11, 2020 in Books, Scholarship | Permalink | Comments (0)

Friday, December 4, 2020

Sharkey Reviews Recognizing Wrongs

Cathy Sharkey has posted to SSRN Modern Tort Law:  Preventing Harms, Not Recognizing Wrongs.  The abstract provides:

Part I of my review of John Goldberg and Benjamin Zipursky’s (GZ), Recognizing Wrongs (Harv. U. Press 2020) reframes the book as, first and foremost, a sustained critique of the law-and-economics, deterrence-focused view of tort law, rather than (as GZ set forth) the affirmative case for the “wrongs and redress” account of tort law. “Cheapest cost avoider” tort theory (as my chosen stand-in for instrumentalist, deterrence-based theories) plays the role of an antagonist, against which GZ construct their theory of wrongs and redress. Part II inverts the role of “cheapest cost avoider” as the protagonist of some of the most significant developments in contemporary tort law, focusing on its central role in the rise of strict products liability in tort and especially its extension to cover bystanders. Part III argues that law-and-economics deterrence-based theory holds the most promise for judges facing two primary challenges of modern torts: (1) containing modern risks at the cutting edge of the regulatory state; and (2) addressing widespread harms.

December 4, 2020 in Books, Scholarship | Permalink | Comments (0)

Tuesday, December 1, 2020

Prescription in Tort Law

The European Group on Tort Law has published Prescription in Tort Law, edited by Israel Gilead and Bjarte Askeland and published by Intersentia.  The blurb provides:

Prescription is a major legal defence that bars civil actions on a claim after the expiry of a certain period of time. Despite its far-reaching practical effects on litigation and on society at large, and the fact that it is the subject matter of pervasive legal reforms in many countries, the law of prescription (limitation of actions) is rarely discussed, analysed and compared.

To meet this challenge, this book canvasses in-depth the law of 16 selected jurisdictions (covering Europe, South Africa and the US jurisdictions) and extensively analyses in comparative perspective the elements of prescription (accrual of the cause of action, prescription periods, rules of suspension, renewal and extension and upper time limits), their interrelations, and the policy considerations (including economic analysis). Topics also covered include the notions of ‘action’, ‘claim’, and ‘cause of action’, subjective and objective prescription, statute interpretation and judicial discretion. The book introduces important insights into how the present law can be improved and, where possible, harmonised. While its main focus is the prescription of tort claims, the analysis, comparison and conclusions are highly relevant to most civil actions.

Prescription in Tort Law is the result of a three-year research project conducted by the European Group on Tort Law (EGTL) that brings together leading academics of the field. It is an invaluable resource for private lawyers.

With contributions by Bjarte Askeland (Bergen Appeal Court Judge, Norway), Ewa Bagińska (University of Gdańsk, Poland), Nina Baranowska ((formerly) University of Wrocław, Poland), Jean-Sébastien Borghetti (University Paris II Panthéon-Assas, France), Giovanni Comandé (Sant’Anna School of Advanced Studies, Italy), Eugenia Dacoronia (National and Kapodistrian University of Athens, Greece), Isabelle Durant (Université catholique de Louvain, Belgium), Israel Gilead (Hebrew University of Jerusalem, Israel), Michael D Green (Wake Forest University, United States), Ernst Karner (University of Vienna, Austria), Anne LM Keirse (Utrecht University, The Netherlands), Bernhard A Koch (University of Innsbruck, Austria), Frédéric Krauskopf (University of Bern, Switzerland), Piotr Machnikowski (University of Wrocław, Poland), Ulrich Magnus (University of Hamburg, Germany), Miquel Martín-Casals (University of Girona, Spain), Johann Neethling (University of the Free State, South Africa), Elena Occhipinti (University of Pisa, Italy), Ken Oliphant (University of Bristol, United Kingdom), Albert Ruda (University of Girona, Spain), Stefan Rutten (University of Antwerp, Belgium), Luboš Tichý (Charles University, Czech Republic), Vanessa Wilcox (European Law Institute, Austria) and Bénédict Winiger (University of Geneva, Switzerland).

December 1, 2020 in Books | Permalink | Comments (0)

Wednesday, November 25, 2020

Goldberg & Zipursky Appear on "Digging a Hole"

John Goldberg & Ben Zipursky appear on the latest episode of "Digging a Hole:  The Legal Theory Podcast," hosted by David Schleicher & Samuel Moyn.  They discuss their latest book, Recognizing Wrongs.

November 25, 2020 in Books | Permalink | Comments (0)

Monday, November 23, 2020

Witt on Holdren on Industrial Accidents

John Witt has posted to SSRN Radical Histories/Liberal Histories in Work Injury Law.  The abstract provides:

Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.

November 23, 2020 in Books, Scholarship | Permalink | Comments (0)

Tuesday, November 17, 2020

Geistfeld on Civil Recourse Theory

Mark Geistfeld has posted to SSRN his book review of John Goldberg & Ben Zipursky's Recognizing Wrongs.  Entitled Tort Law and Civil Recourse, the abstract provides:

In Recognizing Wrongs (Harvard U. Press 2020), Professors John Goldberg and Benjamin Zipursky defend their long-standing thesis that the primary purpose of tort law is to implement the principle of civil recourse, which “can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her” (p. 3). To provide an adequate account of tort law, the principle of civil recourse cannot simply describe the formal structure of tort liability; it must also explain the substantive nature of wrongdoing. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior that mistreated the plaintiff. Goldberg and Zipursky accordingly conclude that “the point of tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them” (p. 266).

The argument turns on mistreatment and the associated prohibition of injury-causing behavior, each of which is defined in problematic terms. Many tort rules function as forms of no-fault or strict liability, even when not expressly denominated as such. According to Goldberg and Zipursky, these rules are defined by an “unforgiving” behavioral standard not to cause injury that can be violated by even “conscientious and diligent actions” (p. 193). In addition to begging the question of why this behavior meaningfully mistreats the plaintiff, Goldberg and Zipursky do not address the implications of such a rule. On their account, the violation of any tort duty is prohibited. Insofar as one ought to avoid acting in a legally prohibited manner, dutyholders who cannot comply with an “unforgiving” behavioral obligation should avoid engaging in the risky activity altogether—an extreme obligation that would prevent most of us from driving automobiles. Something about this argument has gone awry.

As this Review shows, civil recourse readily accommodates an alternative interpretation of tort law that substantially limits the relevance of mistreatment, which in turn limits the importance of civil recourse to the remedial aspects of modern tort law. Although undoubtedly important, the redressive structure of tort liability does not supply the “point of tort law.” Goldberg and Zipursky depict tort law in a manner that is faithful to its historical origins but is now anachronistic. The role of mistreatment within the early common law stemmed from the customary norms that governed behavior in the state of nature. Lacking protection of a centralized government, individuals needed to defend their honor in order to ward off future attacks. Even in cases of accidental harm, suffering injury at the hands of another necessarily involved a form of mistreatment—a loss of honor—that entitled the victim to obtain compensation from the injurer, a form of interpersonal redress for mistreatment that functioned as a rule of strict liability. By enforcing these norms, the early common law was fully animated by the principle of civil recourse.

Over time, social conditions have changed. Physical security no longer depends on one’s honor. To protect individuals from physical harm, modern tort law focuses on the prevention and compensation of injury. Mistreatment matters only insofar as it involves highly culpable wrongdoing—a distinctive threat to physical security redressed by punitive damages. Outside of this extraordinary remedy, mistreatment does not substantively shape the tort rules governing accidental physical harms. Tort liability still satisfies the principle of civil recourse—plaintiffs receive redress from defendants who have violated their tort rights and thereby wronged them—but the primary purpose of modern tort law is defined by its substantive rights and correlative obligations, not by the remedial structure of civil recourse.

November 17, 2020 in Books, Scholarship | Permalink | Comments (0)

Tuesday, November 10, 2020

Gold on the Right of Redress

Andrew Gold has posted to SSRN Introduction to the Right of Redress.  The abstract provides:

This is a draft of the Introduction chapter from my new book, The Right of Redress (Oxford University Press, 2020). As the book argues, the law enables private parties to engage in redress by undoing the wrongs committed against them. Moreover, a distinctive kind of justice governs our legal rights of redress, different from the kind described in leading corrective justice approaches. Through analysis of these key ideas, The Right of Redress helps to make sense of tort law, contract law, fiduciary law, unjust enrichment doctrine, and equity.

November 10, 2020 in Books, Scholarship | Permalink | Comments (0)

Monday, September 14, 2020

Geistfeld: Principles of Products Liability, Third Edition

Mark Geistfeld has posted to SSRN two chapters from Principles of Products Liability (3rd ed.).  The abstract provides:

Two chapters from the third edition of Principles of Products Liability (Foundation Press 2020), a state-of-the-art study of products liability. The book shows how ancient laws have evolved into liability rules capable of solving the safety questions raised by new or emerging technologies, ranging from autonomous vehicles to the Amazon online marketplace. Identifying a development that has been largely ignored by scholars, the book shows how the rule of strict products liability from the last century has been transformed into a more comprehensive liability regime — “strict products liability 2.0” — that incorporates the risk-utility test into the consumer-expectations framework of strict products liability. Across the important issues, this more comprehensive formulation of the implied warranty sharpens the inquiry about what’s at stake, supplying strong rationales for a host of otherwise contentious doctrines — from federal preemption to the relevance of scientific evidence in toxic-tort cases. The analysis throughout relies on extended discussion of the black-letter rules and associated controversies in the case law, providing a solid foundation for understanding and incisively analyzing this vitally important area of the law.

September 14, 2020 in Books, Products Liability | Permalink | Comments (0)

Friday, September 4, 2020

Vines & Akkermans on the Unexpected Consequences of Compensation Law

Prue Vines and Arno Akkermans have published The Unexpected Consequences of Compensation Law with Hart Publishing.  From the blurb:

This book explores the performance of compensation law in addressing the needs of the injured. Compensation procedure can be dangerous to your health and may fail to compensate without aggravation/creating other problems. This book takes a refreshing and insightful approach to the law of compensation considering, from an interdisciplinary perspective, the actual effect of compensation law on people seeking compensation. Tort law, workers’ compensation, medical law, industrial injury law and other schemes are examined and unintended consequences for injured people are considered. These include ongoing physical and mental illness, failure to rehabilitate, the impact on social security entitlements, medical care as well as the impact on those who serve – the lawyers, administrators, medical practitioners etc.  All are explored in this timely and fascinating book. The contributors include lawyers, psychologists, and medical practitioners from multiple jurisdictions including Australia, the Netherlands, Canada, Italy and the UK.

Discount Price: £56

Order online at www.hartpublishing.co.uk – use the code UG6 at the checkout to get 20% off your order!

September 4, 2020 in Books, Scholarship | Permalink | Comments (0)

Thursday, September 3, 2020

Keating on Beuermann on Strict Liability

At JOTWELL Torts, Greg Keating reviews Christine Beuermann's Reconceptualising Strict Liability for the Tort of Another.

September 3, 2020 in Books, Scholarship, Weblogs | Permalink | Comments (0)

Monday, July 20, 2020

CFP: Oxford Studies in Private Law Theory, Volume II

 Oxford University Press is pleased to announce a call for papers for volume two 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 deadline for submission is March 1, 2021.

Circumstances permitting, all accepted papers will be presented at a workshop at the National University of Singapore on August 6-7 2021.  The National University of Singapore and the Rutgers Institute for Law and Philosophy 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).

July 20, 2020 in Books, Conferences, Scholarship | Permalink | Comments (0)

Thursday, June 4, 2020

McBride: The Humanity of Private Law, Part II

Nicholas McBride has published The Humanity of Private Law, Part II:  Evaluation with Hart Publishing.  The blurb provides:

Part II of The Humanity of Private Law charts a new course for English private law in the twenty-first century. Part I set out the vision of human flourishing that English private law has in mind in seeking to promote its subjects' flourishing. Part II argues in favour of a very different account of what human flourishing involves, and explains what private law would look like were it to base itself on this alternative vision of the nature of human flourishing.

This volume:
sets out and evaluates different models of what human flourishing involves;

argues in favour of the view that human flourishing involves being engaged in a quest to lead a truthful life;

explains in what ways a private law that sought to foster this distinctive vision of human flourishing would be different from English private law in its current state, in particular with regard to: (i) tackling fraud; (ii) promoting freedom of speech; (iii) preserving attention capacities; (iv) protecting people from being subjected to degrading or hateful treatment; and (v) enabling people to make a fresh start in their lives; and,

considers whether and when it would be legitimate for the courts to transform English private law in the ways suggested in this volume.

Part II of The Humanity of Private Law is a radical and prophetic book that is essential reading for anyone who is interested in understanding the contribution private law can make to our living in a society that promotes the flourishing of all its members.

Hart is offering a discount:

Use the code HE6 at the checkout to receive 20% off.

June 4, 2020 in Books | Permalink | Comments (0)