Category Archives: Tort

Henrik Lando, ‘Two Advantages of the Negligence Rule Over Strict Liability When the Parties Are Risk Averse’

ABSTRACT When parties are risk-averse and take out insurance, the efficiency of alternative tort rules depends on the efficiency of the insurance contracts. This article addresses two advantages of the negligence rule over the rule of strict liability in this common scenario. One is the well-known advantage that standards may have over rules. Even when […]

Gregory Keating, ‘Between Absolutism and Efficiency: Reply to Professors Geistfeld, Grady, and Priel’

ABSTRACT This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article ‘Principles of Risk Imposition and the Priority of Avoiding Harm’, 36 Revus: Journal for Constitutional Theory and Philosophy of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers a part of the ‘Symposium: Risk Regulation and […]

‘“With great power comes great responsibility” – contributory negligence post-Montgomery

“Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium […]

Madison Shepley, ‘The Character of the Business: Looking Through “Broken Windows” for Liability in Mass Shootings and Other Third-Party Criminal Acts’

ABSTRACT Mass violence and third-party criminal acts are increasing in prevalence, and Washington State’s current prior incidents liability analysis does not fully address public policy concerns of safety. This Comment argues for an expansive standard of the definition of character of the business that incorporates a sociological understanding of the effects of an atmosphere of […]

John Murphy, ‘Contemporary Tort Theory and Tort Law’s Evolution’

ABSTRACT Although grand, explanatory theories of tort law come apart from one another in many ways, they also have a fair amount in common. One core claim found in the work of various Kantian theorists, as well as a number of leading rights theorists, is that tort law develops, incrementally, in such a way as […]

Flatt and Zerbe, ‘Climate Change Common Law Nuisance Suits: A Legal-Efficiency Analysis’

ABSTRACT Multiple common law nuisance lawsuits have been filed against companies to either get them to stop emissions of greenhouse gases or to seek damages for harm from climate change. In American Electric Power v Connecticut, the United States Supreme Court held that federal common law nuisance lawsuits for injunction of emissions activities were preempted […]

Gregory Keating, ‘Corrective Justice: Sovereign or Subordinate?’

ABSTRACT … This chapter argues that the corrective justice critique of economic analysis is powerful, but that the conclusion that corrective justice is the sovereign principle of tort, and perhaps even private law more generally, is not. Corrective justice in tort looks back to the violation of tort law’s primary norms. Those norms, and the […]

Barbara Fried, ‘Facing Up To Risk’

ABSTRACT By banishing decision-making in the face of uncertainty (risk) to the margins of tort theory, nonconsequentialist legal philosophers have obscured the quotidian, unavoidable, and ubiquitous tradeoffs we face in almost every arena of life. This article explores the historical antecedents of the marginalization of risk in contemporary moral philosophy, and details how legal philosophers […]

Steven Shavell, ‘The Mistaken Restriction of Strict Liability to Uncommon Activities’

ABSTRACT Courts generally insist that two criteria be met before imposing strict liability rather than basing liability on the negligence rule. The first – that the injurer’s activity must be dangerous – is sensible because strict liability possesses general advantages over the negligence rule in controlling risk. But the second – that the activity must […]

Gregory Keating, ‘Is Tort Law “Private”?’

ABSTRACT A prominent, important strand of contemporary thinking about tort law – represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib – has coalesced around the thesis that the concept of ‘private law’ is the key to the subject. In one familiar usage of the term, the thesis that tort is private […]