TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, January 21, 2020

Zick on the Costs of Dissent

Timothy Zick has posted to SSRN The Rising Costs of Dissent:  Public Protest and Civil Liabilities.  The abstract provides:

This Article holistically examines the threat that civil liabilities and costs pose to effective political protest. The immediate impetus for examining the costs of dissent is the appearance of new civil liability claims, including “negligent protest,” “conspiracy to protest,” and “malicious petitioning.” However, these claims merely add to an already challenging and burdensome protest environment, which imposes legal, regulatory and cultural restrictions on protest activities. In addition, a wide variety of more traditional costs ranging from permit fees to punitive damages also affects contemporary protest. Owing to their potential chilling effect on expressive activities, courts have special obligations to review both new theories and traditional costs skeptically, to demand precision in terms of liability standards, and to reject civil liability when it is inconsistent with First Amendment rights and commitments. Applying these guidelines, the Article urges courts to reject new theories of liability such as “negligent protest” and “malicious petitioning.” It also encourages courts and lawmakers to more carefully consider the First Amendment implications of other aspects of the cumulative – and rising – costs of dissent.

January 21, 2020 in Scholarship | Permalink | Comments (0)

Friday, January 17, 2020

Goldberg & Zipursky: Recognizing Wrongs

John Goldberg & Ben Zipursky have published Recognizing Wrongs from Harvard University Press.  From the blurb:

Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.

Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.

Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

I got my copy yesterday; get yours here

January 17, 2020 in Books, Scholarship | Permalink | Comments (0)

Thursday, January 16, 2020

Smith on the Structure of Remedial Law

Stephen Smith has posted to SSRN Rights, Wrongs, and Injustices:  The Structure of Remedial Law--Introductory Text.  The abstract provides:

In this text, which comprises the 'Preface' and 'Introduction' to Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019), I set out the foundations for the first comprehensive account of the scope, foundations, and structure of the law governing private law remedies (understood here as judicial rulings) in common law jurisdictions.

Substantively, this introductory text explains what remedial law is, why it is important, and how common law lawyers’ failure to take remedies seriously as a legal subject has impoverished their understanding not just of remedial law, but also of the broader private law. As part of this explanation, it also introduces four themes that run through the book’s examination of particular remedies. First, the question of what courts should do when individuals seek their assistance (the focus of remedial law) is different from the question of how individuals should treat one another in their day-to-day lives (the focus of substantive law). Second, remedies provide distinctive reasons to perform the actions they command; in particular, they provide reasons different from those provided by either rules or sanctions. Third, remedial law has a complex relationship to substantive law. Some remedies are responses to rights-threats, others to wrongs, and yet others to injustices. Further, remedies respond to these events in different ways: while many remedies merely replicate substantive duties, others modify substantive duties and some create entirely new duties. Finally, remedial law is underpinned by general principles — principles that cut across the traditional distinctions between ‘legal’ and ‘equitable’ remedies.

January 16, 2020 in Books, Scholarship | Permalink | Comments (0)

Tuesday, January 14, 2020

Goudkamp on Beever on a Theory of Tort Liability

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'.

January 14, 2020 in Books, Scholarship | Permalink | Comments (0)

Monday, January 13, 2020

Polsky on Federal Tax Implications for PI Plaintiffs and Lawyers

Gregg Polsky has posted to SSRN Taxing Litigation:  Federal Tax Concerns of Personal Injury Plaintiffs and Their Lawyers.  The abstract provides:

This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount of damages awarded. These attempts have been met with varying degrees of success, depending on the jurisdiction and context.

The Article then addresses the personal tax issues of trial lawyers themselves. Structured attorney fee arrangements, whereby these lawyers attempt to defer tax on contingent fees, are discussed. The tax deductibility of litigation costs advanced by contingent fee lawyers to their clients is considered. Finally, the Article concludes with a discussion of how provisions of the 2017 Tax Act might affect trial lawyers.

January 13, 2020 in Scholarship | Permalink | Comments (0)

Thursday, January 9, 2020

Pasquale on Data-Informed Duties in AI Development

Frank Pasquale has posted to SSRN Data-Informed Duties in AI Development.  The abstract provides:

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to industry to help it avoid preventable accidents. It will also assist a judiciary that is increasingly called upon to develop common law in response to legal disputes arising out of the deployment of AI.

January 9, 2020 in Scholarship, Web/Tech | Permalink | Comments (0)

Friday, January 3, 2020

JOTWELL Torts: Sebok on Herstein on Moral Responsibility in Negligence

At JOTWELL, Tony Sebok reviews Ori Herstein's Nobody's Perfect:  Moral Responsibility in Negligence.

January 3, 2020 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, December 30, 2019

Sugarman on Traynor

Steve Sugarman has posted to SSRN Justice Roger J. Traynor, Pragmatism, and the Current California Supreme Court.  The abstract provides:

California Supreme Court Justice Roger J Traynor entered the debate between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions,especially in torts. In this article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the "Rowland" factors, which promote the treatment of “no breach” cases as “no duty” cases. In Part II, I demonstrate the prominence of pragmatism in the Court’s recent decision-making, but not the sort of pragmatic thinking that Traynor expressed. In Part III, I speculate as to how Traynor might have wanted these recent cases resolved based on his pragmatic endorsement of enterprise liability.

December 30, 2019 in Scholarship | Permalink | Comments (0)

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. CrawfordThe Common Law as Silver Slippers
David S. CohenThe Promise and Peril of a Common Law Right to Abortion
Joanna L. GrossmanWomen are (Allegedly) People, Too
Cyra Akila ChoudhuryThe Common Law as a Terrain of Feminist Struggle
Margaret ChonIntellectual Property Infringement and the Right to Say No
Maritza I. ReyesThe Female Body in the Workplace: Judges and the Common Law
Teri A. McMurtry-ChubbIn Search of the Common Law Inside the Black Female Body
Anita BernsteinNegative Liberty Meets Positive Social Change

Bernstein will receive the William L. Prosser Award at the AALS Annual Meeting in January.

December 23, 2019 in Books, Scholarship, TortsProfs | Permalink | Comments (0)

Monday, December 16, 2019

Goudkamp on Lunney on Australian Tort Law

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.

December 16, 2019 in Books, Scholarship | Permalink | Comments (0)

Friday, November 29, 2019

Michigan Junior Scholars Conference

The University of Michigan Law School invites junior scholars to attend the 6th Annual Junior Scholars Conference, which will be held on April 17-18, 2020, in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.

Applications are due by January 3, 2020.

Further information can be found at the Conference website:

November 29, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, November 26, 2019

AALS Torts Section Newsletter

Monday, November 25, 2019

JOTWELL Torts: Goldberg on Descheemaeker on Compensating Emotional Harm

At JOTWELL, John Goldberg reviews Eric Descheemaker's Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

November 25, 2019 in Damages, Scholarship, Weblogs | Permalink | Comments (0)

Friday, November 22, 2019

New Torts Books from Hart: Markesinis, Bell & Janssen; Robertson & Goudkamp; Beuermann

Markesinis's German Law of Torts

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: £150  

Discount Price: £120

Order online at – use the code CV7 at the checkout to get 20% off your order!


Form and Substance in the Law of Obligations

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: £95  

Discount Price: £76

Order online at – use the code CV7 at the checkout to get 20% off your order!


Reconceptualising Strict Liability for the Tort of Another

Christine Beuermann

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: £60  

Discount Price: £48

Order online at – use the code CV7 at the checkout to get 20% off your order!

November 22, 2019 in Books, Scholarship | Permalink | Comments (0)

Tuesday, November 19, 2019

Teitelbaum on Computational Complexity and Deterrence

Joshua Teitelbaum has posted to SSRN Computational Complexity and Tort Deterrence.  The abstract provides:

Standard economic models of tort deterrence assume that a tortfeasor's precaution set is convex — usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (e.g., the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor's behavior in the direction of socially optimal care over time more rapidly than strict liability.

November 19, 2019 in Scholarship | Permalink | Comments (0)

Monday, November 18, 2019

Engstrom on Lone Pine Orders

Nora Engstrom has posted to SSRN The Lessons of Lone PineThe abstract provides:

Over the past three decades, Lone Pine orders have become a fixture of the mass- tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain — or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it’s not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device.

But that’s just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen — and, in places, complicate — our understanding of these profoundly influential phenomena.

November 18, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, November 6, 2019

Oman on Private Law and Local Custom

Nathan Oman has posted to SSRN Private Law and Local Custom.  The abstract provides:

One of the striking features of private law in English-speaking countries is the extent to which it is mainly common law. To be sure, many areas of tort, contract, and property are subject to statutes, and civil law jurisdictions demonstrate that private law can be codified. Still, most Anglo-American private law is common law. This chapter explores that relationship. Both private law and the common law fit awkwardly into the dominant theoretical models of law, which emphasize regulation and social control by the state. Thus, the common law has long been criticized for failing to comply with the model of clearly articulated rules that are announced ex ante and applied ex post. The private law, for its part, contains numerous features that make it a poor candidate for a well-designed regulatory regime. Law and economics (L&E) has dominated much of contemporary private law theory. Beginning in the 1980s, however, neoformalist critics focused on features of private law that L&E can explain only awkwardly. These accounts, in turn, provide responses to many of the standard criticisms of the common law. While this movement is encouraging, theoretical challenges remain. Neoformalism, despite its ambition to take the structure of legal doctrine more seriously than L&E, has difficulty accounting for large swaths of private law. Furthermore, these theories have tended to be highly abstract, placing little or no significance on the particularity of the communities over which private law claims authority. In contrast, the common law often evidences a parochialism that focuses on the history or practices of specific communities. A renewed focus on the classical common law theory of the seventeenth and eighteenth centuries offers one way of responding to these weaknesses in neoformalism.

November 6, 2019 in Scholarship | Permalink | Comments (0)

Thursday, October 31, 2019

Palmer on the Woodhouse Report

Sir Geoffrey Palmer has posted to SSRN A Retrospective on the Woodhouse Report:  The Vision, the Performance, and the Future.  The abstract provides:

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

October 31, 2019 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Tuesday, October 29, 2019

Reynolds on the Role of Private Litigation in Auto Recalls

Conor Dwyer Reynolds has posted to SSRN The Role of Private Litigation in Automotive Recall Process.  The abstract provides:

This Article presents an empirical perspective on the role of tort litigation in generating federal automotive recalls. It begins with a brief history of the American automotive recall process, beginning with the creation of the federal agency responsible for handling such recalls, the National Highway Traffic Safety Administration (NHTSA). It then details the contemporary automotive recall process, examining the administrative apparatus within NHTSA that investigates and orders recalls. Next, it provides the traditional view of private litigation's role in the automotive recall process, which sees private litigation's only role in the initiation of automotive recalls as creating the specter of post hoc liability for defect-related injuries. The heart of the paper tests this view by generating a dataset containing automotive recalls issued in 2014, coding each recall for the presence of defect-related litigation filed before the recall was initiated. The data, alongside narratives of each recall that coded positively for pre-recall litigation, demonstrates that the majority of vehicles recalled were preceded by defect-related litigation. This data an alternative view of private litigation's role in the automotive recall process, one that asserts the existence of a more direct, investigatory role for private litigators in initiating recalls.

October 29, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, October 23, 2019

Bernstein on MacPherson

Anita Bernstein has posted to SSRN The Reciprocal of MacPherson.  The abstract provides:

MacPherson v. Buick Motor Company won fame for taking down a privity barrier that stood between consumers and manufacturers of products that cause injury. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. In this relation of mutually constituted security and danger, privity and MacPherson are each the other’s reciprocal. This article, written to celebrate the centenary of a great decision, explores the reciprocity path that MacPherson helped to build by considering instances of law-mandated care and vigilance that came after it. Broadly worded obligations as provisioned in MacPherson function to support, or at least are consistent with, entitlements and shelters that business entities now receive from American consumers.

October 23, 2019 in Conferences, Scholarship | Permalink | Comments (0)