TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, October 8, 2021

Waldron on Duty

Jeremy Waldron has posted to SSRN On Duty.  The abstract provides:

Duties are normally understood prescriptively, in terms of the particular action a given duty requires. This essay, however, considers an alternative understanding. Duties may be understood by reference to situations for which the duty-bearer takes responsibility. (Not responsibility in a causal sense, but responsibility in a forward-looking sense--like being "on duty"). The paper explores the difference between these two understandings of duty and the attractions of the situational version. One attractive feature of the situational understanding is that it is open-ended (rather than settled and determinate) in the sense it conveys of what might be expected of the duty-bearer.

October 8, 2021 in Scholarship | Permalink | Comments (0)

Wednesday, October 6, 2021

Keating on Corrective Justice

Greg Keating has posted to SSRN Corrective Justice:  Sovereign or Subordinate?.  The abstract provides:

This chapter discusses the concept of corrective justice, which has been at the heart of much recent scholarship on the law of torts in particular, and private law more generally. Notwithstanding its familiarity, ancient origin, and apparent universal acceptance, the concept of corrective justice has produced a remarkable number of distinct conceptions and has stirred up major controversies. For at least a generation, corrective justice stood at the center of the argument between economic and non-economic theories of tort. For legal econo¬mists, corrective justice was an aspect of the institution of tort law. It was part of the data that needed to be explained and justified in economic terms. Corrective justice was subor¬dinate. It was a feature of—not a justification for—the institution of tort law. For legal philosophers Ernest Weinrib and Jules Coleman—who championed corrective justice as the counter-theory to economic analysis—corrective justice was sovereign. It was both in¬stantiated in the institution of tort law and the justification for the institution. It was incipiently and powerfully normative. Furthermore, the justification that corrective justice supplied was formal, not instrumental. The chapter explains and analyzes corrective justice in light of this history, in the hope that this will set the stage for tort theory to move forward.

October 6, 2021 in Scholarship | Permalink | Comments (0)

Tuesday, October 5, 2021

Wright on Haack and Standard of Proof

Richard Wright has posted to SSRN Legal Proof:  Foundherentism and Statistical Evidence.  The abstract provides:

This paper is one of several papers initially presented at a conference in March 2020 at the University of Girona, in Spain, in honor of Susan Haack, which will be published after translation into Spanish by Marcel Pons. This paper discusses (i) Haack's important work on proving causation or any other alleged facts, which focuses on case law and academic doctrine in the USA, and (ii) recent important work on the standard of proof in civil cases in Europe collected in Standards of Proof in Europe (Lubos Tichy ed., Mohr Siebeck, 2019). The standard of proof for civil cases in civil law jurisdictions is generally considered to be much higher than the standard of proof stated in common law jurisdictions. In both types of jurisdiction, and especially in civil law jurisdictions, the standard of proof in civil cases generally requires the formation of an at least minimal belief in the truth of the relevant facts, based on the concrete facts in the particular case. Statistical frequencies, no matter how high, will not suffice.

October 5, 2021 in Scholarship | Permalink | Comments (0)

Monday, October 4, 2021

Keating on Form and Substance in Tort Law

Greg Keating has posted to SSRN his piece in the most-recent issue of the Journal of Tort Law, Form and Substance in the "Private Law" of Torts.  The abstract provides:

Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses, have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where (1) persons bring claims in their own names for (2) harms that they have wrongly suffered against (3) those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, our pressing interest in the physical integrity of our persons grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category of tort as its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. Tort is one institutional instrument available to us to secure diverse, important interests against interference and impairment. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm. Our private law of torts competes and cooperates with these bodies of law and cannot be understood in isolation from them.

October 4, 2021 in Scholarship | Permalink | Comments (0)

Friday, October 1, 2021

Chamallas on Social Justice Tort Theory

Martha Chamallas has posted to SSRN Social Justice Tort Theory, her contribution to the Journal of Tort Law's symposium on "The State of Tort Theory."  The abstract provides:

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

October 1, 2021 in Scholarship | Permalink | Comments (0)

Wednesday, September 29, 2021

SoCal Gas Agrees to $1.8B Settlement Over 2015 Leak

In 2015, fumes from a failing natural gas storage well were released into the mountains above the San Fernando Valley, sickening people with nausea, headaches, and nosebleeds.  On Monday, SoCal Gas announced agreements to pay up to $1.8B to settle litigation over the leak.  The first agreement requires around 97% participation from approximately 36,000 plaintiffs and court approval of how the money will be distributed.  Second and third agreements involve separate settlements and dismissing named plaintiffs in a business class action, both of which are subject to court approval.  Plaintiffs' attorneys spoke from the steps of the Los Angeles federal courthouse:

“There was no plan when the well blew up on what to do,” said attorney Brian Panish. “Because of those failures, these people suffered. We’re thankful we can do our best to offer fair and just compensation.”

Panish said that affected residents gave depositions by Zoom during the pandemic and that some still living in the area believe that the storage field, which is active, should be shut down.

But he said that the settlement shows that the gas company has taken some responsibility.

“It sends a loud message about what had happened — people were justified in their complaints,” he said.

Gregory Yee, Tony Barboza, and Leila Miller of the LA Times have the story (behind a paywall).

September 29, 2021 in Current Affairs | Permalink | Comments (0)

Monday, September 27, 2021

JOTWELL Torts: Tilley on Motala on IIED

At JOTWELL, Cristina Tilley reviews Tasnim Motala's Words Still Wound:  IIED & Evolving Attitudes toward Racist Speech.

September 27, 2021 | Permalink | Comments (0)

Bill Proposed in Congress to Update Maritime Law

Last Wednesday, legislation was introduced in Congress to update the Limitation of Liability Act of 1851, pursuant to which boat owners can limit their liability to the value of the remains of the vessel.  The proposed legislation, introduced by Rep. Salud Carbajal and Sen. Dianne Feinstein, would mean that owners of small boats could be held legally responsible for maritime accidents regardless of the value of the boat after the incident.  The changes would be applied retroactively to compensate the victims of a 2019 incident off the coast of Ventura County, California.  In that case, 34 people were burned to death in the bunkroom of the Conception, a scuba-diving boat.  The AP's Stefanie Dazio in the Los Angeles Times has the story.

September 27, 2021 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, September 22, 2021

Florida Seeks Torts Visitor for Spring 2022

The University of Florida Levin College of Law is currently seeking applications for a visiting faculty position for the Spring 2022 semester to teach either Torts (4 credits) in the first-year required curriculum or Remedies (3 credits) in the upper-level curriculum, as well as a second course in an elective subject of the visitor’s interest. The University of Florida, located in Gainesville, FL, is currently the fifth-best public research institution in the nation and the flagship university of the third-largest state.

Application materials should include a cover letter, a resume with at least three references, and recent course evaluations, if available. Materials may be uploaded at

For further information, applicants may contact Associate Dean Amy Stein at Review of applications will begin immediately. The Levin College of Law fosters a diverse and inclusive environment for faculty, staff, and students, and we welcome applications from candidates with diverse backgrounds and perspectives.   

The University of Florida is committed to non-discrimination with respect to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, marital status, political opinions or affiliations, genetic information, disability, and veteran status in all aspects of employment.

September 22, 2021 in Teaching Torts | Permalink | Comments (0)

Tuesday, September 21, 2021

Rave on Tort Claims as Property Rights

Theodore Rave has posted to SSRN Tort Claims as Property Rights.  The abstract provides:

Courts have long said that legal claims are a constitutionally protected form of property. But what does that mean? This essay explores the treatment of legal claims as property rights in the context of mass torts in doctrinal, theoretical, and economic terms. Corrective justice and civil recourse conceptions of tort law dictate that tort claims are owned by individual plaintiffs. Allocating these property rights at the individual scale can make it difficult to use public mechanisms, like class actions, to aggregate mass tort plaintiffs’ claims to achieve tort law’s instrumental goals like deterrence horizontal equity. At the same time property rights in tort claims facilitate aggregation and mass settlement through private ordering that often sweeps away individualized distinctions among plaintiffs. While the private aggregate settlements that emerge may sometimes further tort law’s instrumental goals, they do so fortuitously, as a byproduct of intermediaries seeking private gain from bundling claims together for sale to the defendant en masse, and without the transparency or oversight of public alternatives.

September 21, 2021 in Scholarship | Permalink | Comments (0)

Friday, September 17, 2021

Kentucky Law Journal Exclusive Submission

The Kentucky Law Journal has an exclusive submission window, with a particular interest in tort pieces (perhaps in honor of Dean Mary Davis's specialty!).  The details are at Howard Wasserman's Prawfsblawg post here.

September 17, 2021 | Permalink | Comments (0)

Thursday, September 16, 2021

Dorfman on the Work of Tort Law

Avihay Dorfman has posted to SSRN The Work of Tort Law.  The abstract provides:

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two conceptions of tort law appear to dominate the ways we should understand and discharge these tasks. One conception takes tort law to be the law of wrongs whereas the other conception equates tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be that of identifying the nature of the conflict to which it responds (or shapes). In fact, there are three of them: Inherently valuable, tolerably valuable, and valueless conflicts. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to organizing activities at the physical workplace.

September 16, 2021 in Scholarship | Permalink | Comments (0)

Tuesday, September 14, 2021

Wright on Multiple Legally Responsible Causes

Richard Wright has posted to SSRN Identifying and Assigning Liability Among Multiple Legally Responsible Causes.  The abstract provides:

This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibility and ultimate liability issues, and briefly discusses the legal responsibility and ultimate liability issues.

September 14, 2021 in Scholarship | Permalink | Comments (0)

Friday, September 10, 2021

Hedley on Private Law Theory

Steve Hedley has posted to SSRN Private Law Theory:  The State of the Art.  The abstract provides:

This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.

September 10, 2021 in Scholarship | Permalink | Comments (0)

Tuesday, September 7, 2021

Geistfeld on Proximate Cause

Mark Geistfeld has posted to SSRN Proximate Cause Untangled.  The abstract provides:

The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across all elements of the tort claim.

In a negligence case, for example, duty determines the risks that factor into the duty to exercise reasonable care. This property implies that the duty must be limited to the risks of foreseeable harm in order for the standard of reasonable care to govern only those harms. Foreseeability for this purpose is defined by the general zones of danger or reference classes that the reasonable person would consider when estimating the likelihood of accidental harm, reducing foreseeability to a behavioral concept that is adequately determinate for resolving the issue of breach. The element of proximate cause then provides a case-specific requirement that the plaintiff’s injury must be within a general category of foreseeable harms encompassed by both the tort duty and its breach—a necessary predicate for liability. The prima facie case accordingly requires the foreseeability test to establish proximate cause for the breach of a duty that is limited to the risks of foreseeable harm.

Once liability has been established, the damages phase of the case requires a further inquiry to fix the full extent of compensable harm proximately caused by the tortious conduct. The foreseeability test produces inequities in the determination of damages that the directness test fairly resolves. This inquiry is structured by the uniformly adopted rule that permits full recovery for an unforeseeably large harm, such as a crushed skull, that was directly caused by a tortious force that would normally cause minor injury, such as a bump on the head. This rationale also explains why the intentional torts exclusively rely on the directness test, eliminating culpability as a confounding factor in the analysis of proximate cause. Because the directness test is a rule for equitably determining compensatory damages, its tort rationale does not justify the directness test for proximate cause in criminal cases, contrary to a widely adopted assumption. Instead of being competing formulations, the directness and foreseeability tests each address different components of a tort claim, explaining why each one is both widely adopted and yet roundly criticized when employed as the only method for determining proximate cause.

September 7, 2021 in Scholarship | Permalink | Comments (0)

Thursday, September 2, 2021

Kutner on Property Torts and the Restatements

Peter Kutner has posted to SSRN Property Torts and the Restatements.  The abstract provides:

Essay examining connections between tort law and property, and the Restatements' treatment of tort liability for loss of, damage to or interference with property interests.

September 2, 2021 in Scholarship | Permalink | Comments (0)

Tuesday, August 31, 2021

Korean Media Law Amendment

In South Korea, the ruling Democratic Party is on the verge of passing a Media Law Amendment that authorizes punitive damages against the media of up to five times compensatory damages.  The standard for punitive damages would be intent or gross negligence.  The law is presented as a way to curtail "fake news," and the government defends the law on the basis that US law is even harsher regarding punitive damages toward the media.  

I don't know what the government has in mind, but, regardless, US law does not support the Media Law Amendment.  The USSC has interpreted the Due Process Clause of the US Constitution as establishing a flexible cap on punitive damages in the form of a single-digit multiplier of compensatory damages (no more than nine times).  Sitting as a common law court in a maritime case, however, the Court referred to a 1:1 ratio as a "fair upper limit."  Moreover, the Due Process limit is said to protect all types of defendants from a system of punitive damages that is widespread in the US.  As I understand Korean law, punitive damages are not generally available; they must be authorized by particular statutes.  Thus far, only a handful of specific statutory allowances of punitive damages have been enacted.  So, in this case, the authorization of punitive damages would be targeting the media specifically.  Additionally, I understand that Korean punitive damages have traditionally been set at a 3:1, not a 5:1, ratio.    

The bigger problem with arguing that US law is harsher against media defendants than the proposed Korean law is that it doesn't take the free-speech protections of the US Constitution into account, particularly the standard needed to prove liability for damages in defamation cases.  The Korean Media Law Amendment would allow punitive damages based on a standard as low as gross negligence.  Very few US jurisdictions allow punitive damages in any kind of case based on gross negligence; the vast majority require a higher standard.  Under US law, for certain types of plaintiffs in a defamation case, gross negligence would not be sufficient to recover even compensatory damages.  Interestingly, in a recent statement, Democratic Party leader Song Young-gil cited Gertz v. Welch as support for the Media Law Amendment, stating the US imposes "tremendously heavy punitive damages."  On remand, the plaintiff in Gertz was awarded $100,000 in compensatory damages and $300,000 in punitive damages.  Gertz, however, is widely understood as requiring "actual malice"--knowledge of falsity or reckless disregard for the truth--prior to receiving punitive damages, at least from a media defendant on matters of public concern.  The $300,000 award was made after the plaintiff proved the "actual malice" standard.  Gross negligence would not have been sufficient.  

Whatever the merits of the Media Law Amendment, and I'm dubious about them, US law does not support its passage.

Kyung-Won Lee of the Seoul Broadcasting System has the story (in Korean). 

Update:  Consideration of the bill has been postponed for a month for further discussion.

August 31, 2021 in Legislation, Reforms, & Political News | 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 – use the code UG8 at the checkout to get 20% off your order!

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

Friday, August 27, 2021

COVID-19 Suits Against Businesses Through the Lens of Cruise Ship Cases

At Bloomberg News, Robert Iafolla & Jake Holland cover COVID-19 suits against businesses through the lens of cruise ship cases.  Here's the lede:

The limited success of cruise line Covid-19 lawsuits showcases the high bar consumers must meet to hold businesses liable for alleged virus exposure, suggesting they can overcome legal hurdles—but only in the right circumstances.

Cruise ship passengers filed at least 42 lawsuits in federal court alleging injuries—ranging from emotional distress to death—due to exposure to Covid-19, an analysis of Bloomberg Law data shows. About 15% of those cases have settled on undisclosed terms, and 40% of them have been dismissed. None have advanced to trial.

The data highlight the long odds consumers face to win such lawsuits in less confined environments than a cruise ship. The pervasive presence of the virus makes it very difficult to prove that spending time at a specific business caused a consumer to get sick, legal observers say.

August 27, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, August 25, 2021

Janger & Twerski on Warranties and Amazon

Edward Janger and Aaron Twerski have posted to SSRN Warranty, Product Liability and Transaction Structure:  The Problem of Amazon.  The abstract provides:  

Amazon, and other internet sales platforms, have revolutionized the manner in which goods are purchased and sold. The obligations undertaken by Amazon in those sales are unclear, both as a matter of transparency, and as a matter of legal doctrine. Is Amazon a store? Is it a shipper? Is it a telephone? In various transactions Amazon can play some or all of these roles. Choosing the right metaphor has consequences. Amazon knows this and has done everything it can to deploy the metaphors selectively to its best legal and practical advantage, even when the chosen characterizations are inapt or even mutually inconsistent.

In an earlier article, we explored whether Amazon should be considered a “seller” for the purposes of product liability when a customer purchases goods from a third-party seller using the Amazon platform. We concluded that the answer was an emphatic “Yes.” We examined the relationship between Amazon and the third-party seller, and considered the extent to which Amazon controlled all aspects of the sale. We also noted, to a lesser extent, the way in which the consumer experienced the sale process.

The purpose of this article is, to extend that analysis to include the law of contracts—principally the law of warranty. We ask the next question: Should Amazon be considered a “warrantor” for the purposes of making the implied warranty of merchantability when it serves as an intermediary between a third-party seller and a consumer buyer? Again, we conclude that it does.

This article will proceed in four steps. First, it will explore the formal legal problems that transaction structure creates when sales are intermediated by an internet platform like Amazon. The problem created by Amazon’s manipulation of transaction structure is the same for contract and for tort, but as we shall see, the doctrinal response is not symmetric. Second, it will explore whether that transaction structure should affect substantial rights. To address that question we will look at what a customer actually sees when they purchase something from Amazon. We will show that what the consumer experiences is at odds with the formal transaction structure claimed by Amazon. We will examine the text of the Uniform Commercial Code (UCC), and show that the statute does not preclude Amazon from being considered a warrantor. Further, Amazon could, and probably should be considered a warrantor-by-estoppel, or as an agent. Third, we will consider whether Amazon should be viewed as successfully disclaiming warranty. Here we conclude that the answer is tied inextricably to ongoing debates about the enforceability of boilerplate in consumer contracts. Those debates are reflected in the current battle royal of the Restatement of Consumer Contracts, but more importantly, in uncertainty in the courts. For that reason, warranty will offer an imperfect solution at best. So, finally, fourth, we return to tort, and argue that the section 20 of Third Restatement of Torts – Product Liability offers a somewhat more direct solution, including within the definition of "seller," somebody who "sells or otherwise distributes."

August 25, 2021 in Scholarship | Permalink | Comments (0)