Category Archives: Tort

Matthew Dyson, ‘What Does Risk-Reasoning Do in Tort Law?’

Abstract: This chapter is a draft of the conclusion to an edited collection on how private law (particularly tort law) conceives of risk, generates liability from risk and seeks to use liability to control risk. It is made up for 18 substantive chapters, two each from England, France, Sweden, Italy, Spain, the Netherlands, Chile, South […]

Alex Kaiserman, ‘Partial Liability’

Abstract: In most cases, liability in tort law is all-or-nothing – a defendant is either fully liable or not at all liable for a claimant’s loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant’s loss only to the degree to […]

Lars Noah, ‘“Go Sue Yourself!” Imagining Intrapersonal Tort Liability’

Abstract: Are ‘self-inflicted’ harms actionable? Courts increasingly have allowed victims to identify other (typically unrelated) parties that may share responsibility for such injuries. Moreover, insofar as judges now also permit lawsuits against closely related parties, they arguably have expanded what it means for a harm to qualify as self-inflicted. Taking these various doctrinal developments to […]

‘Call for Authors: Feminist Judgments: Rewritten Torts Opinions’

Martha Chamallas and Lucinda Finley are co-editors of the torts volume of Cambridge University Press’s Feminist Judgments series. The series involves rewriting legal opinions as if the judge were writing from a feminist perspective. They are seeking authors for both rewritten opinions and commentaries on key cases regarding most facets of tort law. The editors […]

Barbara Billauer, ‘The Causal Conundrum: Examining the Medical-Legal Disconnect in Toxic Tort Cases from a Cultural Perspective or How the Law Swallowed the Epidemiologist and Grew Long Legs and a Tail’

Abstract: The literature regarding the law-epidemiologic disconnect in causal proof is vast, non-conclusive and partisan. Some favor weakening the plaintiff’s burden in cases of ambiguous causation (when we don’t have enough objective scientific proof), even if bastardizing scientific requisites is necessary. Scientific purists, of course, object. Some suggest crafting novel legal causes of action, such […]

Jacob Eisler, ‘One Step Forward and Two Steps Back in Product Liability: The Search for Clarity in the Identification of Defects’

Abstract: Product liability law has struggled to develop a test for identifying when products are defective under the Consumer Protection Act 1987 (‘CPA’). In Wilkes v Depuy International Ltd [2016] EWHC 3096 (QB), Hickinbottom J offered the most prolonged reflection on product defect since A v National Blood Authority [2001] EWHC 446 (QB), and rejected […]

James Henderson, ‘The Impropriety of Punitive Damages in Mass Torts’

Abstract: Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud […]

‘Business-Friendly Litigation Overhaul Stalls in Senate’

“The 2016 elections gave Republicans control of the White House and both houses of Congress, and the party seemed primed to make good on a long-standing goal for the business community – enacting sweeping changes to the federal litigation process, including curbs on class actions. The strategy was to fast-track legislation through the House, to […]

Twerski and Shane, ‘Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls’

Abstract: Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard […]

Douglas Kysar, ‘The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism’

Abstract: Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust […]