Tuesday, January 14, 2020
James Goudkamp has posted to SSRN Book Review: A Theory of Tort Liability. The abstract provides:
Allan Beever’s latest book, A Theory of Tort Liability, builds on his previous major theoretical works regarding tort law, those being Rediscovering the Law of Negligence, and The Law of Private Nuisance. In the same vein as his earlier projects, Beever defends a rights-based conception of tort law. His ultimate concern in A Theory of Tort Liability is to explain 'how [the] rights [that underpin tort law] relate to each other and ground a systematic form of liability'.
Monday, December 23, 2019
Anita Bernstein's "The Common Law Inside the Female Body" Discussed in Online Symposium at Northwestern Law Review
From the Faculty Lounge:
The Northwestern University Law Review Online has published a symposium issue devoted to Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press 2019), including a response by Professor Bernstein. Here is the publisher's description of the book:
In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.
Here are the essays in the symposium line-up:
Bridget J. Crawford, The Common Law as Silver Slippers
David S. Cohen, The Promise and Peril of a Common Law Right to Abortion
Joanna L. Grossman, Women are (Allegedly) People, Too
Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle
Margaret Chon, Intellectual Property Infringement and the Right to Say No
Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law
Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body
Anita Bernstein, Negative Liberty Meets Positive Social Change
Bernstein will receive the William L. Prosser Award at the AALS Annual Meeting in January.
Monday, December 16, 2019
James Goudkamp has posted to SSRN Book Review: A History of Australian Tort Law 1901-1945: England's Obedient Servant?. The abstract provides:
Recent years have witnessed a surge of interest in the historical foundations of tort law. In 2014, Paul Mitchell published his excellent A History of Tort Law 1900–1950. Now Mark Lunney has published A History of Australian Tort Law 1901–1945: England’s Obedient Servant? Lunney’s book is ultimately concerned to test the claim, which he regards as being received wisdom, that in the period between 1901 and 1945 Australian private law, and Australian tort law in particular, essentially mirrored that in England and that there was little evidence of Australian exceptionalism. Lunney takes the following remark of GW Paton (the Dean of Melbourne Law School) made in 1952 that ‘there are very few significant differences’ between English and Australian law as embodying the conventional view.
Friday, November 22, 2019
Basil S Markesinis, John Bell and André Janssen
Since its first appearance in 1986, this magisterial work has won uniform praise from many of the world’s leading comparatists. It has been acclaimed by senior judges and has been cited by the courts of many countries. This new, substantially rewritten and systematically updated fifth edition of the work, contains over 95 leading judgments, most translated in their entirety, along with references to over 2,000 other decisions from Germany and the common law world. While the book remains an ideal tool for teaching comparative torts and comparative methodology, the fact that it has been extensively rewritten makes it an indispensable source of inspiration for those with a professional interest in tort litigation and tort law reform. This edition has paid particular attention to liability for internet activity, medical liability and the protection of personality rights and private life.
Sir Basil S Markesinis QC FBA LLD DR. H.C. (MULT.) is a Fellow of the British Academy, a Foreign Fellow of the Accademia dei Lincei of Rome, the Royal Belgian Academy of Arts and Sciences in Brussels, the Royal Netherlands Academy of Arts and Sciences in Amsterdam, and a Corresponding Fellow of the Academy of Athens and the Académie des Sciences Morales et Politques in France. He is a Bencher of Gray’s Inn.
John Bell QC FBA is Professor of Law at the University of Cambridge.
André Janssen is Professor of Private Law at Radboud University, Nijmegen.
Oct 2019 | 9781509933198 | 728pp | Hardback | RSP:
Discount Price: £120
Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!
Edited by Andrew Robertson and James Goudkamp
This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.
Andrew Robertson is Professor of Law at the University of Melbourne.
James Goudkamp is Professor of the Law of Obligations at the University of Oxford.
Nov 2019 | 9781509929450 | 504pp | Hbk | RSP:
Discount Price: £76
Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!
This book adopts a novel approach to resolving the present difficulties experienced by the courts in imposing strict liability for the tort of another. It looks beyond the traditional classifications of ‘vicarious liability’ and ‘liability for breach of a non-delegable duty of care’ and, for the first time, seeks to explain all instances of strict liability for the tort of another in terms of the various relationships in which the courts impose such liability. The book shows that, despite appearances, there is a unifying feature to the various relationships in which the courts currently impose strict liability for the tort of another. That feature is authority. Whenever the courts impose strict liability for the tort of another, the defendant is either vested with authority over the person who committed a tort against the claimant or has vested or conferred a form of authority upon that person in respect of the claimant. This book uses this feature of authority to construct a new expositive framework within which strict liability for the tort of another can be understood.
Christine Beuermann is Lecturer in Law at the University of Newcastle.
Nov 2019 | 9781509917532 | 240pp | Hbk | RSP:
Discount Price: £48
Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!
Thursday, September 19, 2019
James Goudkamp and Donal Nolan have posted to SSRN Pioneers, Consolidators and Iconoclasts: The Story of Tort Scholarship, the introduction to Scholars of Tort Law. The abstract provides:
Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.
Thursday, September 12, 2019
James Goudkamp and Donal Nolan have edited (and written for) Scholars of Tort Law, now available from Hart Publishing. A discount is available with this flyer: Download Goudkamp & Nolan The blurb provides:
The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.
And the Table of Contents:
1. Pioneers, Consolidators and Iconoclasts: The Story
of Tort Scholarship ..................................................................................1
James Goudkamp and Donal Nolan
2. Thomas McIntyre Cooley (1824–1898) and Oliver Wendell Holmes
(1841–1935): The Arc of American Tort Theory .....................................43
John CP Goldberg and Benjamin C Zipursky
3. Professor Sir Frederick Pollock (1845–1937): Jurist as Mayfly ..................75
4. Professor Sir John Salmond (1862–1924): An Englishman Abroad ......... 103
5. Professor Francis Hermann Bohlen (1868–1942) ................................... 133
Michael D Green
6. Professor Sir Percy Winfield (1878–1953) ............................................... 165
7. Professor Leon Green (1888–1979): Word Magic and the
Regenerative Power of Law .................................................................. 203
8. Professor William Lloyd Prosser (1898–1972) ........................................ 229
Christopher J Robinette
9. Professor Fleming James Jr (1904–1981) ............................................... 259
10. Professor John G Fleming (1919–1997): ‘A Sense of Fluidity’ ................. 289
11. Professor Patrick Atiyah (1931–2018) .................................................... 309
12. Mr Tony Weir (1936–2011) .................................................................. 337
13. Law, Fact and Process in Common Law Tort Scholarship ..................... 359
Thursday, July 25, 2019
Frank McClellan has a new book coming in October entitled Healthcare and Human Dignity. From the blurb:
The individual and structural biases that affect the American health care system have serious emotional and physical consequences that all too often go unseen. These biases are often rooted in power, class, racial, gender or sexual orientation prejudices, and as a result, the injured parties usually lack the resources needed to protect themselves. In Healthcare and Human Dignity, individual worth, equality, and autonomy emerge as the dominant values at stake in encounters with doctors, nurses, hospitals, and drug companies. Although the public is aware of legal battles over autonomy and dignity in the context of death, the everyday patient’s need for dignity has received scant attention. Thus, in Healthcare, law professor Frank McClellan’s collection of cases and individual experiences bring these stories to life and establish beyond doubt that human dignity is of utmost priority in the everyday process of health care decision making.
FRANK McCLELLAN is a professor of law emeritus at the Beasley School of Law, Temple University, Philadelphia and author of Medical Malpractice: Law, Tactics and Ethics and co-author of Tort Law: Cases, Perspectives, and Problems.
A flyer (with a 30% discount) is here: Download Mcclellan author flyer (1) (1)
Wednesday, May 1, 2019
Tim Lytton has published Outbreak: Foodborne Illness and the Struggle for Food Safety. The blurb provides:
Foodborne illness is a big problem. Wash those chicken breasts, and you’re likely to spread Salmonella to your countertops, kitchen towels, and other foods nearby. Even salad greens can become biohazards when toxic strains of E. coli inhabit the water used to irrigate crops. All told, contaminated food causes 48 million illnesses, 128,000 hospitalizations, and 3,000 deaths each year in the United States.
With Outbreak, Timothy D. Lytton provides an up-to-date history and analysis of the US food safety system. He pays particular attention to important but frequently overlooked elements of the system, including private audits and liability insurance.
Lytton chronicles efforts dating back to the 1800s to combat widespread contamination by pathogens such as E. coli and salmonella that have become frighteningly familiar to consumers. Over time, deadly foodborne illness outbreaks caused by infected milk, poison hamburgers, and tainted spinach have spurred steady scientific and technological advances in food safety. Nevertheless, problems persist. Inadequate agency budgets restrict the reach of government regulation. Pressure from consumers to keep prices down constrains industry investments in safety. The limits of scientific knowledge leave experts unable to assess policies’ effectiveness and whether measures designed to reduce contamination have actually improved public health. Outbreak offers practical reforms that will strengthen the food safety system’s capacity to learn from its mistakes and identify cost-effective food safety efforts capable of producing measurable public health benefits.
At the University of Chicago Press, there is a 20% discount with the code UCPNEW.
Tuesday, January 22, 2019
Nicholas McBride has published The Humanity of Private Law with Hart Publishing. The blurb provides:
The Humanity of Private Law presents a new way of thinking about English private law. Making a decisive break from earlier views of private law, which saw private law as concerned with wealth-maximisation or preserving relationships of mutual independence between its subjects, the author argues that English private law's core concern is the flourishing of its subjects.
- presents a critique of alternative explanations of private law;
- defines and sets out the key building blocks of private law;
- sets out the vision of human flourishing (the RP) that English private law has in mind in seeking to promote its subjects' flourishing;
- shows how various features of English private law are fine-tuned to ensure that its subjects enjoy a flourishing existence, according to the vision of human flourishing provided by the RP;
- explains how other features of English private law are designed to preserve private law's legitimacy while it pursues its core concern of promoting human flourishing;
- defends the view of English private law presented here against arguments that it does not adequately fit the rules and doctrines of private law, or that it is implausible to think that English private law is concerned with promoting human flourishing.
A follow-up volume will question whether the RP is correct as an account of what human flourishing involves, and consider what private law would look like if it sought to give effect to a more authentic vision of human flourishing.
The Humanity of Private Law is essential reading for students, academics and judges who are interested in understanding private law in common law jurisdictions, and for anyone interested in the nature and significance of human flourishing.
Friday, January 18, 2019
Anita Bernstein has published The Common Law Inside the Female Body with Cambridge University Press. The blurb provides:
In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today's common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law - with a focus on crimes, contracts, torts, and property - and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons - women included.
Tuesday, January 15, 2019
Ken Oliphant, Zhang Pinghua, & Lei Chen have edited The Legal Protection of Personality Rights: Chinese and European Perspectives. The abstract provides:
This book aims to investigate the way in which personality rights are protected in China through a comparative and cross-cultural lens drawing on perspectives from Europe and elsewhere in the world. Currently, the question whether or not to incorporate a special law on personal rights – the right to life, the right to health, and the rights to reputation and privacy – into a future Chinese Civil Code is heatedly debated in the Chinese legal community. The essential topics that are addressed in this book include general issues of personality rights, personality rights in Constitutional law, personality rights in private law, the legislative development of personality rights in China, case studies of the right to privacy, personality rights in the mass media and the internet, competition law aspects of the right of publicity, the protection of patients’ personal information, and personality rights in the family context. The book offers a broad investigation of personality rights protection in both China and Europe and provides the first substantive comparison of the Chinese and European regimes. The project is conceived as a joint effort on the part of a carefully chosen team of Chinese and European academics, working closely together. The team consists of both senior scholars and young researchers led by well-known experts in the field of comparative tort law.
Thursday, November 1, 2018
Editors Jason Varuhas and NA Moreham have published "Remedies for Breach of Privacy" with Hart Publishing. The blurb provides:
Over the last 15 years, privacy actions have been recognised at common law or in equity across common law jurisdictions, and statutory privacy protections have proliferated. Apex courts are now being called upon to articulate the law governing remedies, including in high-profile litigation concerning phone hacking, covert filming and release of personal information. Yet despite the practical significance of the courts' approach to damages, injunctions and other remedies for breach of privacy, very little has been written on the topic. This book comprehensively analyses these developments from a comparative perspective and provides solutions to issues which are coming to light as higher courts forge this remedial jurisprudence and practitioners look for guidance.
Significantly, the essays are important not only for what they say about remedies, but also for the attention they give to the nature of the new privacy actions, providing deep insights into substantive law. The book includes contributions by academics, practitioners and judges from Australia, Canada, England, New Zealand and the United States, who are expert in the legal disciplines implicated by privacy remedies, including torts, equity, public law and conflict of laws. By bringing together this range of perspectives, the book offers authoritative insights into this cutting-edge topic. It will be essential reading for all those seeking to understand and resolve the new issues associated with privacy remedies.
Wednesday, October 31, 2018
James Goudkamp & Donal Nolan are publishing "Contributory Negligence Principles and Practice" from OUP. The blurb provides:
Despite the centrality of the contributory negligence doctrine in practice, very little is known about how it functions in reality. This volume provides legal practitioners with a ‘one-stop-shop’ where they can find clear and succinct exposition of the legal principles governing contributory negligence alongside an empirically informed analysis of the way doctrine operates in various recurrent factual scenarios, based on cases decided between 1998 and 2017.
For each of the given recurring acts of contributory negligence, the average discount, the range of discounts, and the distribution of discounts are reported. These statistics are supplemented by way of illustrations drawn from the case law. Short summaries of typical cases for the relevant act of contributory negligence are given, along with summaries of cases that fall towards the higher and lower ends of the range of discounts.
A 30% discount is available with this flyer: Download Goudkamp and Nolan Contributory Negligence (Oct 18)
Monday, September 17, 2018
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