Category Archives: Tort

Maria Rosaria Marella, ‘“Love Will Tear Us Apart”: Some Thoughts on Intrafamilial Torts and Family Law Modernization Between Italy and Canada’

Abstract: This paper analyzes a specific aspect of the so-called privatization of the family, namely the intersection of family law with the law of torts, as experienced in some European civil law countries like Italy, France and Germany. It also takes into account parallel developments emerged in common law jurisdictions and specifically in Canada. After […]

Nadia Sawicki, ‘Choosing Malpractice: A New Narrative for Limiting Physician Liability’

Abstract: Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on […]

Anita Bernstein, ‘Rape is Trespass’

Abstract: By furnishing new blackletter on battery, assault, and false imprisonment, Restatement (Third) of Torts: Intentional Torts to Persons provides illustrations of what the medieval writ of Trespass once remedied. All three causes of action restated in this Restatement derive from the trespass writ, as do other modern doctrines that fall under intentional torts to […]

Stephen Sugarman, ‘Restating the Tort of Battery’

Abstract: This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would a) do away with complex and unneeded […]

JiangYu Wang, ‘Enforcing Fiduciary Duties as Tort Liability in Chinese Courts’

Abstract: Fiduciary duties, once an Anglo-American concept, was codified in China’s Company Law in 2005, which made China one of the very few jurisdictions which introduced fiduciary duties through statutory provisions. Between successful or unsuccessful cases of legal transplant, China offers a third possibility on how the transplant of fiduciary duties may work in a […]

Avihay Dorfman, ‘Against Market Insularity: Market, Responsibility, and Law’

Abstract: In this paper, I take stock of some leading attempts to drive a wedge between distinctively market reasoning and practical (including moral) reasoning. Although these attempts focus on different normative foundations – the epistemology of market interaction, the autonomy of its participants, the stability-enhancing quality of markets, and the authority of democratic decision-making – […]

Punitive Damages in Italian Law – Corte di Cassazione 5 July 2017 no 16601

Abstract: In the current legal system, the purpose of civil liability law is not just to make the victim of a tort whole again, since the functions of deterrence and punishment are also inherent in the system. The American doctrine of punitive damages is therefore not ontologically contrary to the Italian legal system. However, the […]

Faure, Visscher and Weber, ‘Liability for Unknown Risks: A Law and Economics Perspective’

Abstract: In the law and economics literature liability is generally regarded as an instrument which provides potential tortfeasors with incentives for optimal care taking. The question, however, arises whether liability can still provide those incentives when risks are unknown. That is the central question that is addressed in this contribution. One may, furthermore, have to […]

Ian Gallacher, ‘My Grandmother Was Mrs Palsgraf: Ways to Rethink Legal Education to Help Students Become Lawyers, Rather Than Just Thinking Like Them’

Abstract: This article uses my family history, and its striking similarities to the Palsgraf case, as a starting point for a consideration of the ways law schools teach the law to their students, the problems that approach appears to cause, and some possible alternative, and potentially healthier, approaches to legal education. My grandmother, grandfather, mother, […]

Jaime Lindsey, ‘Psychiatric Injury Claims and Pregnancy: RE (a Minor) and Others v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824′

Abstract: RE and others concerned a clinical negligence claim against the Defendant NHS Trust by a baby injured during childbirth, as well by her mother and grandmother for psychiatric injury found to have been caused by those events. This commentary focuses on the claim for psychiatric injury by the mother and grandmother, both of which […]