TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, February 7, 2025

JOTWELL Equality: Dorfman on Gilboa on Tort's Role in Biased Healthcare

At JOTWELL, Doron Dorfman reviews Maytal Gilboa's Biased but Reasonable:  Bias Under the Cover of Standard of Care.

February 7, 2025 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, February 6, 2025

Tort Law and Social Equality Project Speakers Series: Haim Abraham

The next session of the Tort Law and Social Equality Project Speakers Series takes place on Friday, February 14 at 12:00-1:30 pm EST. It is a hybrid event that will be held both in person at the University of Toronto Faculty of Law and over Zoom. 

Haim Abraham of the University College London will speak on the relation between private nuisance claims and privacy, applying rights-based and queer theory lenses. Haim will speak for about 45 minutes after which there will be a Q&A period. The Zoom link is copied below, and a poster for the talk is attached with further information.  Download Abraham 

Zoom link: https://utoronto.zoom.us/j/83740690119

February 6, 2025 in Conferences | Permalink | Comments (0)

Wednesday, February 5, 2025

Harvard's Project on the Foundations of Private Law Seeks Fellow

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2025. The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law, unjust enrichment, restitution, equity, and remedies. The Project seeks applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law.
 
Application materials are due to Susan Norton ([email protected]) by 9:00 a.m. on March 12, 2025. Details on both the fellowship and the application can be found at https://plproject.law.harvard.edu/academics/ under "Call for Postdoctoral Fellow Applications."

February 5, 2025 in TortsProfs | Permalink | Comments (0)

Tuesday, February 4, 2025

Harold Luntz (1937-2025)

The legal academy suffered a significant loss last week.  Harold Luntz, who was emeritus at Melbourne Law School, passed away at the age of 87.  Luntz was a champion of alternatives to tort law.  From the Melbourne website:

Harold Luntz is an Emeritus Professor in the Law School. Until his retirement at the end of 2002, he held the George Paton Chair of Law. Thereafter, he continued until 2008 to teach in the postgraduate program. From 1986 to 1988 he was Dean of the Faculty of Law. He was educated in South Africa and at Oxford University, before migrating to Australia in 1965.

Harold is:

    • the author of Assessment of Damages for Personal Injury and Death (4th edition, 2002);
    • and Assessment of Damages for Personal Injury and Death: General Principles (2006);
    • principal author of Torts: Cases and Commentary (7th edition, 2013); and
    • the author of numerous articles, notes and comments on the law of torts.

He was the General Editor of the Torts Law Journal (1993 - 2011).

In 2000 he was the inaugural recipient of the John G Fleming Memorial Award for Torts Scholarship and in 2003 was awarded the AILA Insurance Law Prize.

From 1967 to 1984, Harold was the secretary of the Victorian Chief Justice's Law Reform Committee. From time to time, he acted as consultant to other law reform agencies and government bodies. He also served from 1990 to 1992 as a part-time senior member of the Workcare Appeals Board in Victoria and from 1993 to 1998 as Deputy Chair of the Seafarers Rehabilitation and Compensation Authority.

February 4, 2025 in TortsProfs | Permalink | Comments (0)

Tuesday, January 28, 2025

Abraham on the California Fires

Ken Abraham has posted to SSRN About the California Fires.  The abstract provides:

This short essay analyzes the issues that arise in connection with the fire insurance and other sources of compensation for the damage caused by the recent California fires, and future fires. There is a grim reality that must be faced: no insurance magic, or trick, or legerdemain is going to solve the problem on its own.

January 28, 2025 in Current Affairs, Scholarship | Permalink | Comments (0)

Monday, January 27, 2025

JOTWELL Torts: Avraham on Baharad, Benjamin & Guttel on Anti-Patents

At JOTWELL, Ronen Avraham reviews Roy Baharad, Stuart Minor Benjamin & Ehud Guttel's Anti-Patents.

January 27, 2025 | Permalink | Comments (0)

Friday, January 24, 2025

Cornell: Wrongs and Rights Come Apart

Nicolas Cornell has published with Harvard University Press Wrongs and Rights Come Apart.  The blurb provides:

A bold challenge to a central assumption in modern moral and legal thinking, showing that wrongs and rights are not flip sides of the same coin but instead represent fundamentally distinct moral phenomena.

It is commonplace to regard rights and wrongs as mirror images of each other: to be wronged, we think, is to have one’s rights violated. According to this familiar picture of the moral landscape, there is an inescapable relationship between our claims on others and our complaints against them. Indeed, if to have a right means just that one can reasonably claim redress for being wronged, then there is really nothing separating wrongs and rights.

Legal scholar and philosopher Nicolas Cornell rejects this view. He argues that although wrongs and rights often correspond and overlap, they diverge systematically in a range of contexts and play substantively different roles in our lives. Wrongs are not merely the outline left where rights have been taken away, and rights are more than just the glimmer of future liability.

To make its case, Wrongs and Rights Come Apart engages a variety of examples from literature, legal cases, moral philosophy, and contemporary culture. In accessible, lively prose, Cornell explores topics such as illicit promises, forgiveness, animal rights, and economic exploitation. It turns out that potential wrongs—unlike rights—do not determine how we ought to conduct ourselves. And crucially, rights—unlike wrongs—do not tell us what corrective action is appropriate after a violation. Only by seeing rights and wrongs as distinct concepts, Cornell concludes, can we do justice to the richness of our interpersonal obligations.

January 24, 2025 in Books, Scholarship | Permalink | Comments (0)

Wednesday, January 22, 2025

Dagan, Dorfman & Rosen-Zvi on Civil Litigation and the Values of Rights of Action

Hanoch Dagan, Avihay Dorfman & Issachar Rosen-Zvi have posted to SSRN It's (not all) Personal:  Civil Litigation and the Values of Rights of Action.  The abstract provides:

Existing approaches to civil litigation, both regarding its theoretical underpinnings and its practical instantiations, take diametrically opposing perspectives on the value of personal rights of action. Some view them as inviolable, and thus vehemently oppose any mandatory arbitration clauses and treat class actions as presumptively dubious. Others have no principled objection to neither, since they perceive personal rights of action as sheer technologies, which are painlessly dispensable if the substantive values underlying the claim at hand can be realized more effectively through a more efficient mechanism.

In this Article, we reject both these ‘all or nothing’ approaches and offer an alternative.  Our thesis is that personal rights of action are sometimes intrinsically valuable, and (many) other times, they are not. Personal rights of action are intrinsically valuable where either justice or democracy so prescribes.  This Article unpacks these justifications, explaining why justice points to cases of deliberate or relational wrongdoing while democracy focuses on cases of significant precedential potential.  These refinements, in turn, help to delineate the proper scope of class action, distinguish between legitimate and illegitimate mandatory arbitration clauses, and envisage further directions for reform.

January 22, 2025 in Scholarship | Permalink | Comments (0)

Monday, January 20, 2025

Helland & Klerman on Contingent Fees and Access to Justice

Eric Helland & Daniel Klerman have posted to SSRN Contingent Fees and Access to Justice.  The abstract provides:

Using a unique dataset from New York City, this article shows that contingent fees seem to have, at least partly, solved the access-to-justice problem in tort litigation. People in poorer zip codes, in fact, make legal claims at a higher rate than those in wealthier areas. This greater propensity to seek and achieve legal redress is partly explained by the fact that poor people are more likely to be injured. In addition, the disparity between rich and poor manifests itself solely in smaller claims. For larger claims, rich and poor make claims at roughly the same rate. African Americans and Hispanics also make claims at a higher rate than whites, and this difference also attenuates when one controls for accident rates or focuses on larger claims.

January 20, 2025 in Scholarship | Permalink | Comments (0)

Friday, January 17, 2025

24th Annual Conference on European Tort Law

The Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) and the European Centre of Tort and Insurance Law (ECTIL) cordially invite you to attend the 24th Annual Conference on European Tort Law (ACET), which will be held in Vienna from 24 to 25 April 2025.

The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe in 2024. A Special Session is dedicated to the topic of ‘Forever Chemicals – PFAS and Tort Law’. 

Participation for you is free of charge.

If you would like to attend, please send an email to [email protected] in order to register.

Information is also available here:

https://www.oeaw.ac.at/etl/events/annual-conference-acet

January 17, 2025 in Conferences | Permalink | Comments (0)

Wednesday, January 15, 2025

Bachar on Tort Plaintiffs' Attitudes on NDAs

Gilat Bachar has posted to SSRN Just Tort Settlements.  The abstract provides:

In the United States, most civil disputes settle, often under a cloak of secrecy. Recently, secret settlements—particularly those that conceal a matter of public interest—have come under intense public attention, spurring a wave of restrictive state and federal legislation. And yet, the attitudes of plaintiffs, such as aggrieved employees and consumers, have been strangely absent from the discussion regarding such laws. Indeed, even though settlements are ubiquitous, and ordinary people are crucial to their existence and justice, current literature lacks quantitative data on plaintiffs’ settlement-related attitudes, including on how nondisclosure agreements (“NDAs”) affect the tendency to settle. This Article studies the relationship between the decision to settle a tort dispute and a defendant’s demand for confidentiality, in tandem with other factors which play a role in plaintiffs’ settlement decision-making. The Article uses a preregistered survey experiment with two scenarios—one describing a products liability dispute and the other a sexual harassment dispute—that were each distributed to a representative sample of 500 Americans. The Article finds, first, that plaintiffs are more likely to accept a public than a confidential settlement offer, and, independently, are more prone to take a settlement with a first-time wrongdoer than with a repeat wrongdoer. Second, settlement goals are context dependent. Plaintiffs are overall more willing to settle a products liability dispute than a sexual harassment case. And when the wrongdoer is discharged as part of the settlement, only sexual harassment plaintiffs seem to care. Yet the amount of money on the table matters in both scenarios, suggesting that the monetary incentive might eventually swallow any competing urge to make valuable settlement information public. The Article argues that these effects reflect a broader tendency for tort plaintiffs to consider non-monetary objectives—including expressive and punitive goals—when weighing settlement offers. As such, it has direct implications for negotiating and regulating tort settlements under various liability regimes. Recognizing the central role of settlements in resolving tort disputes, alongside the key position employees and consumers hold in decisions regarding settlement, this Article pushes beyond intuitions about settlement decision-making. It considers plaintiffs’ engagement with established functions of tort law and points to how private and public law concepts about compensation and punishment for wrongdoing are intertwined in settlement decisions.

January 15, 2025 in Scholarship | Permalink | Comments (0)

Friday, January 10, 2025

Behrens: 2024 Civil Justice Update

Mark Behrens of Shook, Hardy & Bacon has written a 2024 Civil Justice Update.  The abstract provides:

This paper reviews key civil justice issues and changes in 2024. Part I discusses legal reform trends. Part II discusses federal legislation and agency action touching on civil justice issues in 2024. It also discusses changes to the Federal Rules of Evidence that took effect on December 1 as well as key amendments to federal court rules that are under consideration. Part III summarizes key developments regarding American Law Institute Restatement projects. Part IV summarizes liability law changes at the state level in 2024. Part V highlights 2024 cases that addressed the constitutionality of state civil justice laws.

January 10, 2025 in Current Affairs, Scholarship | Permalink | Comments (0)

Tuesday, January 7, 2025

JOTWELL Courts: Pfander on West on Constitutional Torts

At JOTWELL, James Pfander reviews E. Garrett West's Refining Constitutional Torts.

January 7, 2025 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, January 6, 2025

Tort Law and Social Equality Project Speakers Series: Jane Thomson

The next session of the Tort Law and Social Equality Project Speakers Series takes place on Friday, January 17 at 12:00-1:30 pm EST over Zoom. Jane Thomson of the University of New Brunswick Faculty of Law will speak on the invalidation of discriminatory wills and trusts as contrary to public policy. She will speak for about 45 minutes after which there will be a Q&A period. The Zoom link is copied below, and a poster for the talk is attached with further information. 

Zoom link: https://utoronto.zoom.us/j/83740690119

The flyer:  Download Thomson TLSE Poster

January 6, 2025 in Conferences, Scholarship | Permalink | Comments (0)

Monday, December 30, 2024

Foster on Nondelegable Duties in Australia and the UK

Neil Foster has posted to SSRN Convergence and Divergence:  The Law of Non-Delegable Duties in Australia and the United Kingdom.  The abstract provides:

This chapter discusses the circumstances under the common law of Australia and England where a principal can be held strictly liable for a wrong committed by an independent contractor.

December 30, 2024 in Books, Scholarship | Permalink | Comments (0)

Monday, December 23, 2024

George Priest (1947-2024)

Yale's George Priest has passed away at the age of 77.  Priest was a law-and-economics theorist whose work often intersected with tort law.  The Yale memorial notice (via Brian Leiter) is here.

December 23, 2024 in TortsProfs | Permalink | Comments (0)

Saturday, December 21, 2024

Torts at the AALS Annual Meeting

From Elizabeth Weeks:

The Section Program,"Understanding the Third Restatement's Approach to Dignitary Harm," will be held on Wednesday, January 8, 9:50 am – 11:20 pm, Moscone Center, Level Two South, Room 209. Speakers include Rick Hasen, Caprice Roberts, Zahra Takhshid, and Mike Wells. The Program is co-sponsored by the Sections on Insurance Law and Defamation and Privacy.

The Section Award Ceremony, honoring William L. Prosser Award Winner, Nora Freeman Engstrom, will be held on Thursday, January 9, 11:40 am - 12:30 pm, Moscone Center, Level Two South, Room 208.  Please join us in the same location, starting at 11 am for a light breakfast before the ceremony.  The event will include remarks by Jonathan Cardi, Michael Green, Robert Rabin, and Adam Zimmerman.

Please continue to send nominations for new Executive Committee members. The Section business meeting will follow the Wednesday Program.

December 21, 2024 in Conferences, TortsProfs | Permalink | Comments (0)

Wednesday, December 18, 2024

The Case for Raising Auto Insurance Minimums

AAJ Research has posted to SSRN The Case for Raising Auto Insurance Minimums.  The abstract provides:

Minimum levels of insurance are severely inadequate: Many states set their minimum levels of insurance decades ago and they have not been changed to reflect increases in medical care costs, increases in motor vehicle repair costs, or even inflation generally.

Raising minimum insurance requirements does not increase drivers’ premiums: Despite fears that raising required minimum levels of insurance will increase premiums, states that have raised their minimum levels have seen the cost of auto insurance increase at a lower rate than the country as a whole over equivalent periods.

Raising minimum levels of insurance does not increase the number of uninsured drivers: Higher minimum insurance levels are associated with lower rates of uninsured motorists. The majority of states that have raised minimums saw the proportion of uninsured drivers decrease.

Increasing minimum insurance levels protects victims: Raising minimum insurance levels helps crash victims who would otherwise be left without full compensation for their losses and relieves the financial burden on health care providers, charities, local governments, and taxpayers.

Motor vehicle crash costs exceed $340 billion per year, only half of which is covered by insurance: Over 40,000 people are killed and more than 2 million are injured in motor vehicle crashes each year. The economic cost of these crashes exceeds $340 billion a year, but only 54% of these costs are paid by insurance companies. Crash victims, health care providers, charities, and local governments end up bearing the rest of the economic burden.

I realize that AAJ is not a neutral source of information on this issue, but the idea deserves consideration regardless.  My thoughts on the issue, specific to Pennsylvania (and cited by AAJ), are here.

December 18, 2024 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Wednesday, December 11, 2024

Tilley on Tort in the Age of the Constitution

Cristina Tilley has posted to SSRN The Power of All:  Tort in the Age of the Constitution.  The abstract provides:

Life in a multicultural nation can be fraught. The United States is a case in point, with hostile tension between members of competing identity groups playing out today on streets, in offices, and across the media. Modern Americans assume that bridging race, gender, and class inequity is the stuff of public – constitutional – law. This assumption follows the lead of modern American lawyers, who migrated to this body of law just as historians, sociologists, and economists began to insist that the private law of tort was exclusively concerned with the accidental physical harms inevitable in a modern economy. According to this econostory, tort has no role to play in addressing individual dignitary harms inevitable in a multicultural society. Joseph Ranney’s book, The Burdens of All: A Social History of American Tort Law, is one of the most deeply researched and reasoned entries in this canon, and was the rightful centerpiece of Marquette University Law School’s 2023 Conference, Tort Law: What Can We Learn from Where It Has Been? In this response, originally offered as a keynote talk at that conference, I celebrate Ranney’s achievement. But I also challenge him and fellow econohistorians of tort to reckon with the lost origins of American personal injury law. It turns out that in the pre-Industrial, Founding era, localized juries drawn from the community were often asked to intervene when women, enslaved people, and the poor claimed that neighbors degraded them because of their social characteristics. These claims were not uniformly successful, but they were a legal invitation for the community to examine its social norms and adjust them to stigmatize disfavored interpersonal conduct. As I recount, this private dignitary forum was dismantled when tort was reimagined as a quasi-regulatory system to optimize resource allocation. The quest for individual dignity was ultimately reassigned in the twentieth century to Article III courts, which updated and expanded their reading of the Constitution to integrate members of suspect classes more fully into public life. But while constitutional pronouncements can force system-level equity rules for schools, workplaces, police forces, and the like, they cannot touch the private worldviews of the people found in those systems. The Burdens of All acknowledges that American tort has always fluctuated to manage the social tensions of the day. I suggest it may be time for a twenty-first century fluctuation. Excavating tort’s original purpose as an instrument of interpersonal dignity provides a template to build out a robust private law of social justice for the modern era.

December 11, 2024 in Scholarship | Permalink | Comments (0)

Friday, December 6, 2024

JOTWELL TORTS: Tilley on Rabin on Emotional Harm

At JOTWELL, Cristina Tilley reviews Robert Rabin's Stand Alone Emotional Harm:  Old Wine in New Bottles.

December 6, 2024 in Scholarship, Weblogs | Permalink | Comments (0)