Category Archives: Tort

Kahn and Lopatka, ‘Res Ipsa Loquitur: Reducing Confusion or Creating Bias?’

ABSTRACT The so-called doctrine of res ipsa loquitur has been a mystery since its birth more than a century ago. This Article helps solve the mystery. In practical effect, res ipsa loquitur, though usually thought of as a tort doctrine, functions as a rule of trial practice that allows jurors to rely upon circumstantial evidence […]

Meyers and Hersch, ‘Employment Practices Liability Insurance and Ex Post Moral Hazard’

ABSTRACT Employment Practices Liability Insurance (EPLI) is a form of insurance that protects employers from claims of discrimination, harassment, retaliation, and wrongful termination. EPLI contracts as currently written often do not exclude intentional actions or payment of punitive damages, creating potentially severe moral hazard problems. We propose potential alterations that would hold employers accountable for […]

Stephen Daly, ‘The Aberrant Tort of Lawful Means Conspiracy?’

INTRODUCTION The lawful means conspiracy tort provides an actionable claim where two (or more) parties combine to engage in a lawful activity, but do so with the predominant purpose of harming the claimant, and in fact do so harm. It is a strange tort, in that it renders unlawful because of a combination that which […]

‘Supplying a Key Piece of the Tort-Decline Puzzle’

Alexandra D Lahav and Peter Siegelman, The Curious Incident of the Falling Win Rate: Individual vs System-Level Justification and the Rule of Law, 52 UC Davis Law Review 1371 (2019). In The Curious Incident of the Falling Win Rate, Alexandra Lahav and Peter Siegelman highlight a remarkable – but heretofore overlooked – fact: Between 1985 […]

Arvind and McMahon, ‘Responsiveness and the Role of Rights in Medical Law: Lessons From Montgomery

ABSTRACT Over time, medical law has moved away from paternalism in favour of an approach grounded in patients’ rights. Using Montgomery v Lanarkshire Health Board (2015) as a case study, we offer a deeper analysis of this emerging approach. We argue that patients’ rights should be evaluated in terms of their contribution to making medical […]

Abraham and White, ‘Conceptualizing Tort Law: The Continuous (and Continuing) Struggle’

ABSTRACT Today all tort lawyers, scholars, and teachers understand that there are three bases of liability in tort: intent, negligence, and strict liability. That is ordinarily how we think about tort liability, and how we organize tort law in our thinking. But that way of thinking actually does not capture, and has never captured, all […]

Allan Beever, ‘Tort Law and the Tort System: From Vindictiveness to Vindication’

ABSTRACT An examination of the nature of tort scholarship. A defence of internal analysis and a demonstration of its comparability with external scholarship. Beever, Allan, Tort Law and the Tort System: From Vindictiveness to Vindication (February 24, 2020) in Campbell, David and Halson, Roger (eds) Research Handbook on Remedies (Edward Elgar, 2019).

Kenneth Abraham, ‘The Long-tail Liability Revolution: Creating the New World of Tort and Insurance Law’

ABSTRACT Very few developments have ever transformed either tort or insurance law. One development – as important in our time as the adoption of liability for negligence was in the 19th century or the rise of strict products liability was in the 20th century – transformed both. That is the rise of long-tail civil liability. […]

‘First Coronavirus Lawsuit’

“The first negligence lawsuit arising from the Covid-19 pandemic has already been filed. On March 9, 2020, a couple sued Princess Cruises for their experience onboard the Grand Princess Cruise ship. An outbreak of Covid-19 on the Grand Princess resulted in 28 or more cases of the virus. There are going to be a ton […]

Foulkes and others, ‘Can Clinical Genetics Laboratories be Sued for Medical Malpractice?’

ABSTRACT Clinical genetics laboratories are handling more patient information than ever before, including genetic data that has no established clinical significance. Those labs could face legal liability if that previously uncertain information gains clinical significance and a laboratory fails to notify the impacted patients. Should patients choose to sue clinical genetics labs, what body of […]