‘Is Tort Law Hopelessly Fragmented?’

Kenneth S Abraham and G Edward White, Conceptualizing Tort Law: The Continuous (and Continuing) Struggle Maryland Law Review (forthcoming 2020), available at SSRN. Like Gaul, tort law is divided into three parts: torts of intent, negligence, and strict liability. At least, that is what most torts professors teach and what many scholars, judges and practitioners suppose. In an engaging, lively, and perceptive article, Professors Abraham and White remind us that this tripartite division is descriptively inadequate for characterizing the variety of individual torts recognized today. They further claim that this plethora of distinct torts is a disorganized, fragmented mess. They then surprise the reader with a provocative conclusion: tort law is incapable of principled organization. The authors provide solid evidence of their descriptive thesis. Their critiques of the inevitability of this unprincipled disorganization are more controversial, for reasons that I will later suggest … (more)

[Kenneth W Simons, JOTWELL, 27 July]

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