Monday, August 6, 2018
Intersentia's "The European Convention on Human Rights as an Instrument of Tort Law" by Stefan Somers will be available in October. From blurb:
Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons.
An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights.
The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system.
Wednesday, July 25, 2018
Marta Infantino and Eleni Zervogianni are editors of "Causation in European Tort Law," available from Cambridge University Press. From the blurb:
Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike.
Monday, June 25, 2018
Martha Chamallas has posted to SSRN Feminist Legal Theory and Tort Law. The abstract provides:
Tort law in the US has failed to provide adequate protection against gender-related harms that disproportionately affect women. Because of the imposition of doctrinal and other restrictions on recovery, there is no reliable means of tort compensation for victims of domestic violence, rape and sexual assault. Only a small number of intentional tort cases have been brought directly against offenders, mainly leaving the criminal law to deal the problem. Although more negligence suits have been brought against institutional defendants for failure to prevent sexual violence, the developing law has not yet had an appreciable effect on cases of domestic violence or acquaintance rape. In the realm of reproductive harms affecting pregnancy, childbirth, and fertility, tort protection has also been precarious, with claims of women and other plaintiffs relegated to the disfavored tort of negligent infliction of emotional distress. The chapter connects these recent developments to feminist theory.
Note: This is a draft chapter. The final version will be available in Research Handbook on Feminist Jurisprudence, edited by Robin West & Cynthia Bowman, forthcoming 2018, Edward Elgar Publishing Ltd.
Friday, June 1, 2018
Ronen Perry has posted to SSRN Tort Law. The abstract provides:
This book chapter systematically analyzes the fundamental principles of Israeli tort law. Given space limits it focuses on core areas, and does not profess to be comprehensive. Part II discusses fault based liability—intentional torts, negligence, and presumptions of negligence. Part III examines strict liability, including the special regimes pertaining to road accidents, defective products, and defamation, and the general tort of breach of statutory duty. Part IV discusses general defenses—particularly those deriving from the plaintiff’s fault or consent, and the special defenses afforded to the state, public authorities, and civil servants. Part V explains how the bilateral wrongdoer-victim model has been extended by allowing claims against or by third parties. Part VI examines the available remedies.
Thursday, May 3, 2018
Recent Publications of the Institute for European Tort Law and the European Centre of Tort and Insurance Law
Tuesday, February 13, 2018
Hart Publishing announces The Duty of Care in Negligence by James Plunkett. The blurb provides:
This book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of the concept to the reader.
The flyer, with a 20% discount, is available here: Download Plunkett
Tuesday, January 23, 2018
Regulating Risk Through Private Law, edited by Matthew Dyson, is now available from Intersentia. The blurb provides:
Regulating Risk Through Private Law sets out, for nine significant legal systems, an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. It examines and explains what risk-based reasoning adds to private law.
Taking tort law as the core case study, the book analyses national variation in risk understanding, liability, culture and regulation and from that, develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the volume examines the contextual and cultural setting of different risks and how different legal systems seek to regulate them.
The volume draws on more than 25 leading scholars of private law and risk from around the world to develop a coherent and systematic study of risk. The legal systems included span the common law and civil law, large and small, codified and uncodified, as well as those with wider and narrower strict liability rules and causation rules: England and Wales, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil.
This is the first multi-handed work on risk to explore what risk-reasoning adds to private law and how best it can be deployed, resisted or simply understood.
Matthew Dyson is an Associate Professor in the Faculty of Law, University of Oxford, and Tutorial Fellow of Corpus Christi College. Previously, he was a Fellow of Trinity College and Jesus College, Cambridge. He is an associate member of 6KBW College Hill Chambers, a Research Fellow of the Utrecht Centre for Accountability and Liability Law and Vice President of the European Society for Comparative Legal History. He is the editor of Unravelling Tort and Crime (2014), Comparing Tort and Crime (2015) and Fifty Years of the Law Commissions (2016).
With contributions by Cristián A. Banfi (University of Chile), Bernardo Bissoto Queiroz de Moraes (University of Sao Paulo), Mia Carlsson (Stockholm University), Nadia Coggiola (University of Turin), Matthew Dyson (University of Oxford), Anton Fagan (University of Cape Town), Duncan Fairgrieve (University of Paris-Dauphine PSL), Richard Fentiman (University of Cambridge), Sandra Friberg (Uppsala University), Bianca Gardella Tedeschi (Università del Piemonte Orientale), María Paz Gatica (University of Chile), Ivo Giesen (Utrecht University), Michele Graziadei (University of Turin), Cyril Holm (Uppsala University), Elbert de Jong (Utrecht University), Marlou Overheul (Utrecht University), Ignacio Maria Poveda Velasco (University of Sao Paulo), Alistair Price (University of Cape Town), Otavio Luiz Rodrigues Junior (University of Sao Paulo), Albert Ruda (University of Girona), María Agnes Salah (University of Chile), Helen Scott (University of Oxford), Sandy Steel (University of Oxford), Jenny Steele (University of York), Simon Taylor (University Paris Diderot), Eduardo Tomasevicius Filho (University of Sao Paulo) and Véronique Wester-Ouisse (Deputy Prosecutor at the Court of Appeal of Rennes).
More information is available here: Download E-flyer_Regulating Risk Through Private Law
Thursday, October 26, 2017
John Oberdiek has posted to SSRN the Introduction to Imposing Risk: A Normative Framework. The abstract provides:
This is the Introduction to Imposing Risk: A Normative Framework (Oxford University Press, 2017).
Human life has always been shadowed by risks like disease and natural disaster, but modern life is distinctively risky. In the first instance, today, risk utterly permeates life. The sheer variety and scope of risks that attend industrialized and industrializing societies are unique to them. Our agrarian and geographically dispersed ancestors did not face the risks that accompany the use of automobiles and high-speed transit, the mass production of goods and widespread use of chemicals, vast construction and public works projects, or the countless other risks to which we are exposed in our everyday lives. In light of the fact that risk is ubiquitous in modern life, it should be no surprise that sociologists have called ours a “risk society,” focused on containing the risks that modernization itself has created. This sociological fact implies a normative one that, in conjunction with the pervasiveness of risk, explains why modern life is distinctively risky: the risks we now face are morally cognizable. For they are, in the main, subject to our control – indeed, they are typically our creation. The risks that define modern life are therefore our responsibility. As they are largely imposed by people on people, they call for moral assessment. This book addresses some of the central questions stimulated by our contemporary practices of imposing risk.
Friday, September 29, 2017
Nahel Asfour has published Wrongful Enrichment: A Study in Comparative Law and Culture (Hart Publishing). The blurb provides:
This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions. The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine. Revised Dissertation. (Series: International Studies in the Theory of Private Law) [Subject: Contract, Tort & Restitution Law; Comparative Law]
Friday, September 1, 2017
Peter Cane has authored "Key Ideas in Tort Law" from Hart Publishing. The blurb provides:
This book offers nine key ideas about tort law that will help the reader to understand its various social functions and evaluate its effectiveness in performing those functions. The book focuses, in particular, on how tort law can guide people's behaviour, and the political and social environments within which it operates. It also provides the reader with a wealth of detail about the ideas and values that underlie tort 'doctrine'-tort law's rules and principles, and the way those rules and principles operate in practice. The book is an accessible introduction to tort law that will provide students, scholars and practitioners alike with a fresh and engaging view of the subject.
The table of contents:
1. Nine Key Ideas
2. Tort Law
4. Torts Unpacked
5. Torts Repackaged
7. Out and About with Tort Law
10. The Political Economy of Compensation Schemes
11. The Future of Tort Law
Monday, August 21, 2017
Matthew Dyson has posted to SSRN What Does Risk-Reasoning Do in Tort Law?. The abstract provides:
This chapter is a draft of the conclusion to an edited collection on how private law (particularly tort law) conceives of risk, generates liability from risk and seeks to use liability to control risk. It is made up for 18 substantive chapters, two each from England, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil. The volume will be published later in 2017 by Intersentia. This chapter sets out the main findings from the volume, analyses them comparatively, and shows what risk-reasoning does within tort law.
Wednesday, August 2, 2017
Martha Chamallas and Lucinda Finley are co-editors of the torts volume of Cambridge University Press's Feminist Judgments series. The series involves rewriting legal opinions as if the judge were writing from a feminist perspective. They are seeking authors for both rewritten opinions and commentaries on key cases regarding most facets of tort law. The editors have identified approximately 16 relevant cases for discussion. The deadline to express interest is August 25th. Deadlines for the final product are in March 2018 for the opinions and April 2018 for the commentaries. More information is available here: Download Call for Authors Feminist Torts Judgments
Tuesday, July 25, 2017
Announcement: Publication of Materials on Tort Reform, 2nd Edition (2017) by Andrew F. Popper, Bronfman Professor of Law, American University, Washington College of Law
Early in July, West Publishing released Materials on Tort Reform, 2nd Edition (2017) by Andrew F. Popper. The goal for this edition is very much the same as it was for the First Edition: a supplemental text for torts classes that provides essays, articles, cases, and other materials allowing for consideration of all sides of the tort reform debate. In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner.
While tort law has not changed dramatically since this book was first published, the tort reform debate has shifted. In the period preceding the first edition, tort reform was a battle over substantive tort law, joint and several liability, admissibility of certain evidence—in other words, issues pertaining directly to accountability and liability. Typical tort reform proposals involved limitations on non-economic loss, standards for punitive damages, changes in the definition of design defect, the government standards and state of the art defense, and more.
For the last seven years, while the above topics remain in play, focus has broadened to include fundamental procedural mechanisms that affect, enhance, or limit access to courts. In addition, there has been an undeniable push to move tort cases away from state courts and into federal court. Broadly speaking, those fighting for these changes contend that tort law, as currently practiced, produces uncertain and unfair results.
Those opposing these changes assert that injured people are entitled to access to justice in their own states, before judges from their own states, with basic decisions made by a jury of their peers at a local level, i.e., federalism. Broadly, they assert that this is a struggle to preserve the rights of injured consumers to a fair and just legal system. What is at risk, they contend, is a level playing field where damages imposed on those who produce dangerous products or provide inappropriate professional services are sufficient to make whole those harmed and deter others from similar misconduct.
Both positions have multiple glimmers of legitimacy, a fact that seems obvious to all except those involved in the fight.
Through commentary, essays on both sides of the battle, articles, interest group papers, and cases, this text is designed to help students comprehend this 40-year struggle. Does the tort system yield inefficient and counter-productive results (e.g., a less competitive market and higher prices), or is it that prized legal regime its supporters contend, preserving fragile rights of injured consumers?
Monday, June 12, 2017
James Goudkamp has posted to SSRN the Introduction to his book Tort Law Defences. The abstract provides:
The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.
Friday, May 19, 2017
The latest edition of Marshall Shapo's products liability treatise is available from Elgar. The blurb provides:
Tuesday, February 7, 2017
Mike Wells has posted to SSRN Harmonizing European Tort Law and the Comparative Method: Basic Questions of Tort Law from a Comparative Perspective. The abstract provides:
This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.
This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.
Wednesday, January 25, 2017
Scott Hershovitz has posted to SSRN The Search for a Grand Unified Theory of Tort Law. The abstract provides:
Tuesday, January 3, 2017
Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs. The abstract provides:
This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.
Friday, December 16, 2016
Eli Ball has published Enrichment at the Claimant's Expense with Hart Publishing. The blurb provides:
This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties – a claimant and a defendant – are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test – asking whether enrichment and loss arise 'but for' each other – provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.
Monday, November 21, 2016
Ken Oliphant has edited a new book, The Liability of Public Authorities in Comparative Perspective:
In recent decades, the liability of public authorities has been one of the main areas of development in and at the edges of tort law in Europe, with major reforms implemented or considered at a national level, and a steady stream of major court decisions. During the same period, ‘Member State liability’ has also been recognised in the law of the EU, and the interplay of principles of national and EU law – and additionally the ‘just satisfaction’ jurisprudence of the European Court of Human Rights – evidently warrants close attention. In this context, the aims of the present study are to contribute to the understanding of the law of extra-contractual liability as it applies to public authorities in the legal systems of Europe (and selected non-European jurisdictions), to facilitate its enhancement where necessary or desirable, and to consider the possibilities for harmonisation in the area – specifically, through the extension and adaptation of the Principles of European Tort Law to cover public authority liability.
Mike Green and Jonathan Cardi describe doctrines in the United States. The flyer is here: Download E-flyer liability of public authorities