Category Archives: Tort

Iain Field, ‘A good-faith challenge to the taxonomy of tort law defences’

Introduction: … The argument develops incrementally in five substantive parts. Part II outlines the range of circumstances in which good faith ‘protections’ (to use a neutral term that encompasses, but is not limited to, the possible definitions of ‘defences’ examined later in this article) operate in tort law, and demonstrates why – subject to the […]

‘The Algorithm Made Me Do It and Other Bad Excuses’

“As the outputs of algorithms increasingly pervade our everyday lives – from wayfinding apps and search engine autofill results to investment advice and self-driving cars – we must also come to terms with who should be held accountable when those algorithms cause harm, and how. In the lives of many people, algorithms are harmless, even […]

Juergen Backhaus, ‘Lawyers’ economics versus economic analysis of law: a critique of professor Posner’s “economic” approach to law by reference to a case concerning damages for loss of earning capacity’

Abstract: A methodological critique of the Chicago School of legal economic analysis, in particular Posner’s approach, is illustrated by an example characterizing Chicago-type ‘analysis of law’. Although the discussion of the example referred to may be interesting in its own right, its purpose here is to suggest a more general framework of criticism in order […]

Sabrina Safrin, ‘The C-Section Epidemic: What’s Tort Reform Got to Do with It?’

Abstract: Today one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean section epidemic and that tort reform, which caps physician liability, […]

David Neuberger, ‘Implications of Tort Law decisions’

“In the Fairchild case, which I shall discuss later, Lord Nicholls of Birkenhead described legal concepts determining the appropriate scope of liability in tort, including duty of care, causation, proximity, and remoteness, as ‘afflicted with linguistic ambiguity’. And, as the equally formidable Professor Jane Stapleton has written, the legal reasoning in judgments in tort cases […]

Patrick Borchers, ‘How “International” Should a Third Conflicts Restatement Be in Tort and Contract?’

Introduction: The question on the floor, I take it, is whether in drafting the Third Conflicts Restatement special considerations (or perhaps even rules) should come into play in tort and contract conflicts cases in which the involved jurisdictions are not all states of the United States. This is a question that — in my view […]

Stuart Hargreaves, ‘“Relational Privacy” and Tort’

Abstract: This article argues that the current interpretation given to the four-part invasion of privacy framework by the courts is inadequate in the face of modern privacy challenges. In particular, it struggles with claims for privacy over public matters or other ‘non-secret’ matters in which an individual may nonetheless have some ongoing privacy interest. This […]

Lynn Baker, ‘Mass Torts and the Pursuit of Ethical Finality’

Abstract: Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through non-class aggregate settlements without running afoul of the existing ethics rules. This Article joins this important debate. Part […]

‘A Benefit Theory of Tort Law’

Alex Stein, The Domain of Torts, 117 Columbia Law Review 535 (forthcoming 2017), available at SSRN. Scholars seeking to interpret the common law of torts typically take a position on the merits of fairness or rights-based rationales for liability as contrasted to welfarist or efficiency-based rationales. Rejecting this fairness versus efficiency framework, Alex Stein defends […]

Kate Tokeley, ‘When Not All Sellers Are Traders: Re-Evaluating the Scope of Consumer Protection Legislation in the Modern Marketplace’

Abstract: Consumer protection statutes in both Australia and New Zealand impose obligations on people who are in trade. Courts have consistently interpreted the ‘in trade’ limitation as excluding private transactions. In New Zealand, a statutory provision operative since 2014 requires all sellers ‘in trade’ who transact over the internet to make it clear to consumers […]