TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, April 22, 2021

Perry on the Unidentified Wrongdoer

Ronen Perry has posted to SSRN The Unidentified Wrongdoer.  The abstract provides:

The Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.

Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong unidentifiability problems lawmakers should focus on four types of costs: (1) the cost for the victim of identifying the unknown wrongdoer using advanced procedural tools, (2) the cost for a third party of obtaining and retaining information about the wrongdoer’s identity, (3) the cost (and expected impact) of precautions a third party could take to reduce the likelihood of the wrongdoing, and (4) the cost of non-enforcement.

Part II then outlines the selection principle, explains that its application is context, jurisdiction, and time-specific, and applies it to four common cases of strong unidentifiability: intentional violations of bodily integrity, life, or liberty by unknown perpetrators, injuries caused by defective products whose manufacturers are unidentified, anonymous online wrongdoing, and hit-and-run accidents.

April 22, 2021 in Scholarship | Permalink | Comments (0)

Monday, April 19, 2021

Festschrift for Oscar Gray

The Maryland Law Review has published "A Torts Festschrift for Oscar Gray."  Contributors include Ken Abraham & Ted White, Mark Geistfeld, Don Gifford, Mike Green & James Sprague, and me.  

April 19, 2021 in Scholarship, TortsProfs | 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 – use the code UG7 at the checkout to get 20% off your order!

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

Wednesday, April 14, 2021

Mullenix on Reviving a Mass Tort Litigation for Guns

Linda Mullenix has posted to SSRN Outgunned No More?  Reviving a Firearms Industry Mass Tort Litigation.  The abstract provides:

In November 2019, the United States Supreme Court denied certiorari in Remington Arms Co. v. Soto, on appeal from the Supreme Court of Connecticut. In so doing, the U.S. Supreme Court let stand the Connecticut court’s determination that plaintiffs in gun litigation arising out of the 2012 Sandy Hook elementary school massacre could litigate wrongful death claims under Connecticut consumer protection and unfair trade practice statutes. In making that determination, the Connecticut Supreme Court held that the federal Protection of Lawful Commerce in Arms Act (PLCCA) did not preempt the plaintiffs’ claims under state law. The Connecticut court decided that the plaintiffs’ claims came within PLCCA’s third exception to immunity, the so-called “predicate statute” exception. The Remington Arms litigation is important because it may signal a pathway for further firearms litigation against gun defendants in other states pursuant to state consumer and unfair trade practice statutes. This article assesses whether the Remington Arms precedent provides a possibility for reviving a firearms mass tort litigation, which possibility receded in the decade after congressional enactment of PLCCA. Evaluated in the context of well-known hallmarks of developing mass tort litigation, a firearms mass tort remains in a very nascent stage in the life cycle of mass tort litigation. It remains to be seen whether litigation against the gun industry will gain renewed traction as a consequence of the Connecticut Remington Arms litigation.

April 14, 2021 in Conferences, Scholarship | Permalink | Comments (0)

Friday, April 9, 2021

Robinette & Costa on Section 230

Shannon Costa and I have posted to SSRN Incorporating an Actual Malice Exception to Section 230 of the Communications Decency Act.  The essay is from Southwestern's "New Frontiers in Torts:  The Challenges of Science, Technology, and Innovation" symposium last February.  The abstract provides:

In an initial attempt to shield minors from pornography, Congress enacted the Communications Decency Act (CDA) of 1996. An amendment to the CDA, codified as section 230, originally was designed to encourage web-related defendants to self-regulate by shielding “Good Samaritan” websites from liability. Courts have interpreted the section broadly, creating almost complete civil immunity for interactive computer services (ICS) for the statements of their users—regardless of whether they would have been “publishers or distributors” at common law. Despite the good intentions behind section 230, the broad immunity that it has provided ICSs ultimately prevents holding ICSs accountable for their wrongful behavior: not only defamation, but also conduct such as malicious catfishing.

For at least fifteen years, commentators have proposed amending section 230, but, other than one limited exception, Congress has yet to take action. Recent political attention to section 230, however, provides an opportunity for reform, and this essay proposes such a reform. Although two reform proposals have received a lot of attention—the repeal of section 230 and a “notice-and-takedown-procedure”—we have concerns about both.

Instead, this essay proposes applying the actual malice standard to torts committed by ICSs in a distributor capacity. Expanding an earlier proposal, we would apply actual malice in all cases against ICSs acting as distributors. Moreover, we would apply the actual malice standard to torts beyond defamation. Thus, if an ICS were engaged in tortious conduct involving knowledge or reckless disregard for the truth, the ICS would be accountable. The actual malice standard holds web-related defendants accountable for egregious harm, while protecting them from overly burdensome liability.

April 9, 2021 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, April 6, 2021

Crocker on Reforming Immunity

Katherine Mims Crocker has posted to SSRN Qualified Immunity, Sovereign Immunity, and Systemic Reform.  The abstract provides:

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s death last summer. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in American law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The present moment offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that we should refocus the conversation by reconsidering other aspects of the constitutional-tort system—especially sovereign immunity for government entities—too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.

This Article recommends an incremental yet systemic reform strategy, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity falls hardest on populations that suffer a disproportional share of constitutional harm, including communities of color for police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses will not wreak havoc on individual or government finances, the judicial system, or substantive rights.

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

Monday, April 5, 2021

Wansley on Liability for Autonomous Vehicles

Matthew Wansley has posted to SSRN The End of Accidents.  The abstract provides:

In the next decade, humans will increasingly share the roads with autonomous vehicles (AVs). The deployment of AVs has the potential to dramatically reduce the frequency and severity of motor vehicle crashes. Existing liability rules give companies developing AVs insufficient incentives to develop that potential. Data from real-world autonomous driving indicates that today’s most advanced AVs rarely cause crashes, but often fail to avoid preventable crashes caused by other road users’ errors. A growing number of scholars have proposed reforms that would make it easier for plaintiffs injured in crashes with AVs to hold AV companies liable. These reform proposals either ignore the issue of comparative negligence or would preserve some form of the defense. If AV companies avoid liability for crashes in which a human road user was negligent, they will not invest in developing technology that could prevent those crashes. This Article proposes a solution: AV companies should be held responsible for all crashes in which their AVs come into contact with other vehicles, persons, or property—regardless of fault, cause, or comparative negligence. Contact responsibility would cause AV companies to internalize the costs of all preventable crashes and lead them to make all cost-justified investments in developing safer technology. Crashes would no longer be treated as regrettable but inevitable accidents, but as engineering problems to be solved.

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

Thursday, April 1, 2021

Engstrom & Rabin on Public Health by Litigation

Nora Engstrom & Bob Rabin have posted to SSRN Pursuing Public Health Through Litigation:  Lessons from Tobacco and Opioids.  The abstract provides:

Over the past half-century, product-related public health crises have claimed millions of American lives. Two of these crises have been especially prominent: tobacco and opioids. In this Article, we zero in on both controversies. Like many before us, we trace how these two addictive and deadly products became widely used by the American public and analyze the myriad ways in which the products—cigarettes and prescription painkillers—are similar. From there, however, we part ways with previous analyses, as we look beyond these surface similarities to the many ways tobacco and opioids are markedly different from one another. This analysis of differences—focusing on the products’ substitutability, social utility, and price sensitivity—ultimately underscores the crushing, and easily underestimated, challenges policymakers face, to the extent they try to curb the opioid epidemic using tried-and-true supply-side mechanisms. We then turn from the crises themselves to the litigation each has generated. From a distance of two decades, we tally the successes and failures of tobacco litigation—which began in the 1950s and crested in the late 1990s—and analyze how that mixed scorecard has informed, and, going forward, ought to inform, the sprawling opioid litigation: the most complex civil action ever tackled by any American court. Finally, moving beyond this comparative analysis, we address both the future and the utility of public health litigation. Many have asked: What is the role of litigation when it comes to promoting public welfare? Harnessing lessons from both tobacco and opioids, our answer to that question offers new insights for how tort litigation complements—and, under certain conditions, can catalyze—broader regulatory strategies.

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

Tuesday, March 23, 2021

AALS Torts Section Calls for Newsletter Items and Prosser Award Nominations

We are writing as the Secretary and Treasurer of the
AALS Torts & Compensation Systems section to pass along two important

*1. Torts and Compensation Systems Section Newsletter*

As most of you know, our section publishes a newsletter each fall listing:
(1) symposia related to tort law; (2) recent law review articles on tort
law; (3) selected articles from Commonwealth countries on tort law; and (4)
books relating to tort law. If you know of any works that should be
included in this year's newsletter, please forward relevant citations and
other information to The deadline for
inclusion in this fall's newsletter is Friday, August 20, 2021.

*2. 2022 William L. Prosser Award*

This is the first call for nominations for the 2022 William L. Prosser
Award. The award recognizes “outstanding contributions of law teachers in
scholarship, teaching and service” in torts and compensation systems.
Recent recipients include Jack Weinstein, Anita Bernstein, Ken Simons,
Marshall Shapo, Steve Sugarman, Aaron Twerski, Mike Green, James Henderson,
Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray,
and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex
Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the
award. Nominators can renew past nominations by resubmitting materials.
Living tort scholars and those who have passed away within the last five
years are eligible for the award. Selection of the recipient will be made
by members of the Executive Committee of the Torts & Compensation Systems
section, based on the recommendation of a special selection committee. The
award will be presented at the annual AALS meeting in Washington, D.C. in
January 2022.

Nominations must be accompanied by a brief supporting statement and should
be submitted no later than Friday, July 16, 2021. Please email submissions
to Elizabeth Weeks,

Best Regards,
Nora Freeman Engstrom & Elizabeth Weeks

March 23, 2021 in Scholarship, TortsProfs | Permalink | Comments (0)

Friday, March 19, 2021

Goldberg & Zipursky on Public Nuisance and Opioid Litigation

John Goldberg & Ben Zipursky have posted to SSRN Opioid Litigation and the Law of Public Nuisance:  A Preliminary Assessment.  The abstract provides:

In recent years, states and cities have filed civil actions against manufacturers and distributors of prescription opioid medications seeking, among other things, reimbursement for the cost of treating individuals who suffer from addiction, overdoses, and related illnesses. In many respects, these suits have followed the pattern set by suits against tobacco companies, as well as gun and paint manufacturers. This Article focuses on one of the most striking similarities: the plaintiffs’ aggressive invocation of the law of public nuisance as a basis for liability.  The question we explore is whether the plaintiff-entities can rely on public nuisance as a ground for prevailing and recovering damages. We conclude, preliminarily, that these suits should fail because they do not fall within the concept of public nuisance as courts have deployed it, and because the admittedly grave problems they aim to address are of a very different kind than those which the law of public nuisance is well-suited to address. In arguing for these conclusions, we do not deny—as some scholars have—that public nuisance is a tort. Rather, we maintain, primarily, that the entities have not alleged the kind of interference with a right common to the public that is required for the commission of this tort. Of course, even if we are correct to conclude that the plaintiffs’ public nuisance claims fail, the opioid defendants might well face liability on other claims brought by these claimants, or on behalf of individuals who have suffered physical injury as a result of becoming addicted to opiate-based medications have tort claims against the manufacturers, prescribers, or retailers of those drugs.  While our analysis of public nuisance tort liability might strike some as “formalistic” in a pejorative sense, we maintain that in-depth doctrinal analysis should not be mistaken for out-of-touch conceptualism. Part of what makes the common law valuable and adaptive is that it has some content and structure. If it did not, it would not qualify as law at all. Our contention is that, notwithstanding the breadth of the public nuisance tort, it is not capacious enough to absorb claims by cities and states seeking compensation for the concededly urgent harms associated with the opioid crisis. To burst the seams of the legal framework while pretending one has remained within it is to lose the institutional stability that renders tort law a form of law and that helps to sustain the authority of judge-fashioned bodies of law. Perhaps some courts will decide this is worth doing. Our point is that, in so far as they do, they probably are exceeding the bounds of ordinary common law reasoning, even on a capacious understanding of it.

March 19, 2021 in 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)

Friday, March 12, 2021

JOTWELL Torts: Engstrom on Campbell et al. on Voir Dire

Tuesday, March 9, 2021

Rapp on Tort Law, LGBTQ+ Rights, and Obergefell

Geoffrey Rapp has posted to SSRN LGBTQ+ Rights, Anti-Homophobia and Tort Law Five Years After Obergefell.  The abstract provides:

Tort law’s intersection with the rights of members of minority and historically oppressed groups is complicated, and its status as an instrument for the advancement of rights tenuous. Tort law embraces a “reasonable person” analysis, with tort liability is circumscribed by the attitudes, impressions, beliefs, knowledge, and understanding of the fictional average member of “the community,” and reaches for majoritarian sensibilities to regulate human interaction. Tort law is also shaped by the common law process, and can be slow to evolve to changes in social structures, patterns of human relations, and the needs of members of growing minority groups that have not achieved dominant status. On the other hand, because of the evolving content of reasonableness and the common law process, tort law is equipped to change as society changes.This paper considers how tort law responded to a distinctive and powerful exogenous shock – the Supreme Court’s landmark 2015 decision prohibiting the restriction of same sex marriage, Obergefell v. Hodges.

March 9, 2021 in Scholarship | Permalink | Comments (0)

Friday, March 5, 2021

Abraham & Schwarcz on Cyber-Insurance

Ken Abraham & Daniel Schwarcz have posted to SSRN Courting Disaster:  The Underappreciated Risk of a Cyber-Insurance Catastrophe.  The abstract provides:

Cyberattacks have the potential to cause simultaneous, very large losses to numerous firms across the globe, thus resulting in a cyber “catastrophe.” Moreover, there are plausible reasons for believing that a future cyberattack could produce world-wide losses that are larger by an order of magnitude than any past attack. This Article argues that such a cyber-catastrophe could cripple the insurance industry, for two primary reasons. First, many traditional property/casualty policies might well provide “silent-cyber” coverage of a much larger portion of these costs than is now anticipated, because a cyber catastrophe could well result in “physical damage or loss” to tangible property resulting from cyberattacks. This is especially true for auto and homeowners coverage, which generally do not expressly exclude cyber-risk due to the historic absence of cyber claims in these domains. But even general commercial property and CGL policies might cover significant elements of this loss, depending on their terms. Second, a cyber catastrophe could cripple the growing number of insurers providing "cyber insurance" coverage, which expressly cover various losses associated with cyberattacks and the compromise of electronic data. These cyber-insurers face unique difficulties in using two of the most important insurance tools for limiting their exposure to catastrophe risk: coverage exclusions and underwriting. Although cyber-insurers have historically offset these difficulties by insisting on artificially low coverage limits, competition is increasingly rendering this strategy unworkable. In short, both traditional forms of insurance and new forms of cyber insurance are courting disaster. The Article therefore closes by identifying and analyzing several alternative approaches to protecting traditional insurance from catastrophic cyber loss and encouraging new forms of cyber insurance that provide increased coverage without exposing insurers to excessive financial risk.

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

Tuesday, March 2, 2021

Rabin on Compensation and Disaster Relief

Bob Rabin has posted to SSRN Some Thoughts on Compensation and Remedial Relief for Disasters in the American Legal System.  The abstract provides:

We live in a time when disasters, tragically, have taken on new meaning. Natural disasters arise with greater frequency and growing intensity. And responsible party disasters—disasters that are man-made—dominate the headlines, generating fear and a sense of disbelief. Both preventive measures beforehand, and restorative efforts on behalf of victims thereafter, raise enormously difficult questions of how to best address these momentous events.

This essay focuses on the restorative efforts: compensation and remedial relief for disasters in the United States legal system. The essay sets out to briefly describe the multi-layered system in the U.S. for addressing the consequences of catastrophic loss, which is framed in a typology based on a straightforward, two-fold approach.

Part I discusses compensation for natural disasters, where a combination of legislative no-fault compensation systems, privately held insurance, and governmental assistance programs compensate property loss, which is the dominant, although by no means exclusive, source of harm. Part II turns to responsible party disasters—where tort serves as the default system for seeking redress for physical harms. In addition to tort, Part III considers other options for securing compensation, such as targeted informal settlement schemes. Finally, the essay concludes with a brief note on the shortcomings of each of these strategies and suggest the need for a hybrid approach that draws upon each of the positive elements in our patchwork system.

March 2, 2021 in 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)

Monday, February 22, 2021

Nolan on Limiting English Vicarious Liability

Donal Nolan has posted to SSRN Reining in Vicarious Liability.  The abstract provides:

The English law of vicarious liability has changed dramatically over the course of the last 20 years. The overall effect of this transformation has been a significant expansion in the scope of the doctrine, accompanied by high levels of uncertainty, as reflected in the frequency with which appeals on the subject have been heard by the Supreme Court in recent years. The two most recent of those appeals, Barclays Bank v Various Claimants and WM Morrison Supermarkets plc v Various Claimants, are the subject of this commentary. In these two decisions, the Supreme Court has attempted to impose some order on the chaos, and to replace the old structures of vicarious liability with a new framework offering comparable levels of certainty and predictability. This ‘modified orthodox’ approach preserves some continuity with the old law, and is also characterised by the abandonment or downgrading of open-ended tests and multi-factorial analysis in favour of more structured and tightly drawn enquiries, as well as a strong attachment to precedent. With these two decisions, it seems that the limits on the expansion of vicarious liability are now coming into clearer focus.

February 22, 2021 in 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)