Law Commons^™

Tort Recovery For Loss Of A Chance, David A. Fischer

Faculty Publications

Tort lawyers in the United States often think of “loss of a chance” as a theory of “probabilistic causation” that only applies to medical malpractice misdiagnosis cases. The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the “loss of a chance” of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by a preponderance of evidence that the negligence caused the harm, and would recover no damages under …

Intent And Recklessness In Torts: The Practical Craft Of Restating Law, James A. Henderson, Jr., Aaron D. Twerski

Vanderbilt Law Review

However one frames the concepts of intent and recklessness in a Restatement, they must be kept generic, stable, and endogenous. By "generic" we mean that the concepts should not be tied to any single tort, or family of torts. For example, one frequently encounters philosophical treatments of tort that automatically link intent with the causing of tangible harms, such as personal injury and property damage. Apparently, intent and harm are coupled in this manner in order to contrast intentional infliction of harm with negligently harmful conduct. But to inextricably link intent with tangible harm in a Restatement of Torts would …

Accidental Torts, Thomas C. Grey

Vanderbilt Law Review

One way to understand tort law is as a functional response to the social problem of accidental personal injury. That puts the negligence action at the center, and emphasizes the doctrinal choice between negligence and strict liability, while downplaying the intentional torts and the torts that do not involve physical injury. It also foregrounds the policy choice between tort and other means of dealing with accidents. This functional treatment is not uncontroversial today, but it is certainly orthodox.

Here I propose to bring back into view some neglected aspects of the intellectual origins of the accident-centered approach to tort law. …

Introduction To Torture As Tort: From Sudan To Canada To Somalia, Craig M. Scott

Articles & Book Chapters

The present work is chapter 1 of the edited volume, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing, Oxford, 2001). At the time the book was generated, the controversial nature of seeking globalised justice through national courts had become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought extradition of the former President of Chile from the United Kingdom in order to bring him to account under Spanish criminal law for a variety of alleged violations in Chile of human rights, most notably involving torture. Yet, …