TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, June 13, 2022

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.

June 13, 2022 in Books | Permalink | Comments (0)

Monday, June 6, 2022

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.

June 6, 2022 in Books, Scholarship | Permalink | Comments (0)

Friday, April 1, 2022

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!

April 1, 2022 in Books | Permalink | Comments (0)

Thursday, March 17, 2022

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!

March 17, 2022 in Books | Permalink | Comments (0)

Tuesday, March 8, 2022

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!

March 8, 2022 in Books | Permalink | Comments (0)

Thursday, February 3, 2022

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!

February 3, 2022 in Books, Scholarship | Permalink | Comments (0)

Thursday, October 14, 2021

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.

October 14, 2021 in Books, Scholarship, Teaching Torts | Permalink | Comments (0)

Monday, August 30, 2021

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!

August 30, 2021 in Books, Scholarship | Permalink | Comments (0)

Tuesday, August 10, 2021

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.

August 10, 2021 in Books, Religion, Scholarship | Permalink | Comments (0)

Friday, July 16, 2021

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.

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

Tuesday, June 22, 2021

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.

June 22, 2021 in Books, Scholarship | Permalink | Comments (0)

Monday, June 21, 2021

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.

June 21, 2021 in Books | Permalink | Comments (0)

Monday, June 7, 2021

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.

June 7, 2021 in Books, Scholarship | Permalink | Comments (0)

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)