Category Archives: Tort

Donahue and Witt, ‘Tort as Private Administration’

ABSTRACT What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function […]

D’Antoni and Tabbach, ‘The Complementary Role of Liability and Safety Regulation’

ABSTRACT This article deals with the control of hazardous activities in situations where potential victims can affect their exposure to risk. Economists have generally considered ex ante regulation (safety standards) to be a substitute for ex post policies (exposure to tort liability) in order to control externalities. We show that when the victim’s compensation is […]

‘The Myths and Reality of Tort Reform’

Charles Silver, David A Hyman, and Bernard Black, Fictions and Facts: Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4, Texas Tech Law Review (forthcoming), available at SSRN. It is difficult to convene a discussion of cost containment in health care without someone calling for tort reform. In […]

Elizabeth Weeks, ‘Healthism in Tort Law’

ABSTRACT This article draws on the author’s recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, […]

Tracey Tomlinson, ‘Negligent Disruption of Genetic Planning: Carving Out A New Tort Theory to Address Novel Questions Of Liability in an Era of Reproductive Innovation’

INTRODUCTION In March 2017, the Singapore Court of Appeal awarded damages for a previously unarticulated tort – the ‘loss of genetic affinity’. In the case before the Court, a husband and wife underwent in-vitro fertilization (IVF) treatment, and subsequently delivered a baby girl (Baby P). Several months after the birth of Baby P, the parents […]

Sam Porter, ‘Do the rules of private nuisance breach the principles of environmental justice?’

ABSTRACT This article explores the potential distributive consequences of the tort of private nuisance, through the lens of environmental justice. Firstly, the theoretical underpinnings of this concept are set out. The principal concern of environmental justice is the unfair burdening of disadvantaged groups with societies’ environmental ‘bads’; but the concept can also be manipulated to […]

Susan Saab Fortney, ‘Mandatory Legal Malpractice Insurance: Exposing Lawyers’ Blind Spots’

ABSTRACT As states consider the advisability of mandatory insurance, it is worth examining different positions in the debate on mandatory insurance and recent empirical research related to uninsured lawyers and legal malpractice litigation. To introduce the topic, Part I provides a historical note with information on the current status of requiring malpractice insurance for lawyers […]

‘A Primer on Opioid-Epidemic Litigation’

Abbe R Gluck, Ashley Hall, and Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) Journal of Law, Medicine and Ethics 351–366 (2018), available on SSRN. Susan Sontag documented how illness becomes metaphor, wrapped in ‘punitive or sentimental fantasies’. The bubonic plague is no longer a […]

‘Two by Billauer on Wrongful Life and Wrongful Birth’

“Barbara Pfeffer Billauer has posted two pieces on wrongful life to SSRN. The first is The Sperminator as a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts). The abstract provides …” (more) [TortsProf Blog, 7 March]

Wannes Vandenbussche, ‘Dealing with Evidentiary Deficiency in Tort Law’

ABSTRACT In continental-Europe, each party carries the burden of proof for those elements that constitute the basis of its claim. In tort law proceedings, this implies that an injured party must prove the factual elements underlying fault, damage and causation, whereas the alleged tortfeasor must demonstrate that he is not or only partly liable. Often, […]