Law Commons^™

Wrongs To Us, Steven Schaus

Michigan Law Review

A huge number of tort suits in the United States are captioned Plaintiff & Spouse v. Defendant. Why? The answer is at once completely obvious and deeply puzzling. The plaintiff’s spouse is part of the case because, in almost every U.S. state, she has a claim against the defendant too—not for battery or negligence, as her spouse might, but for the loss of her spouse’s “consortium.” And yet, it’s not at all clear why a spouse should have a tort claim of this kind. A plaintiff who sues in tort, Judge Cardozo once explained, must always identify “ ‘a …

A Theory Of (In)Justice: The Failure Of Tort Law To Secure Equal Respect For Women And A Feminist Contractarian Framework For Reform, Eva Augst

CMC Senior Theses

Traditional approaches to philosophical theories of tort law have systematically undermined the individual worth and security interests of women. However, torts also provide a particularly powerful avenue for reform, in that they embody the public power of private law and offer individuals the opportunity to seek recourse and accountability for wrongs. In this paper, I offer a framework for such reformist approaches to tort philosophy, predominantly inspired by Jean Hampton’s “Feminist Contractarianism,” which requires that women be recognized as individuals with intrinsic worth who are deserving of respect. To accomplish this, I first note the particular relevance of social contract …

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

The Structure Of Torts, Thomas C. Galligan Jr.

Journal Articles

Tort law consists of a number of different causes of action which are seemingly unrelated except that all involve civil wrongs, other than mere breaches of contract. The various torts have different elements; some, like the nominate or intentional torts, very specific; others, like negligence, more general and vague. There is no apparent, coherent, or consistent structure applicable to all torts. This Article articulates just such a unified structure for all torts: one that arises out of and is based upon the elements of negligence. All torts involve the judicial delineation of the defendant's duty or legal obligation. All torts …

Private Rights And Private Wrongs, Andrew S. Gold

Michigan Law Review

Review of Private Wrongs by Arthur Ripstein.

Accounting For The Slow Growth Of American Privacy Law, Rodney A. Smolla

Rod Smolla

Not available.

New Philosophical Foundations Of Tort Law?, Avihay Dorfman

Avihay Dorfman

In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).

Party Autonomy In Tort Theory And Reform, Christopher Robinette

Christopher J Robinette

Negligence And Accommodation: On Taking Others As They Really Are, Avihay Dorfman

Avihay Dorfman

Disagreements over the morality and the efficiency of the standard of reasonable care are at the root of the study of negligence law (and, perhaps, tort law as a whole). They typically proceed as though the most important question that needs to be addressed is that of the content of this standard, namely, the question of what reasonable care is. However, in these pages I shall argue that there exists another important question, which is to say the manner in which reasonable care is evaluated. This question, I show, is neither fixed by nor subservient to the content of the …

A Process Theory Of Torts, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

Civil Recourse Defended: A Reply To Posner, Calabresi, Rustard, Chamallas, And Robinette, John C. Goldberg, Benjamin Zipursky

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Two Roads Diverge For Civil Recourse Theory, Christopher J. Robinette

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Beneath The Surface Of Civil Recourse Theory, Martha Chamallas

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Interpreting Liability Under The Alien Tort Statute, Rachel Paul

University of Miami Law Review

No abstract provided.

The Concept Of 'Harm' In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

The Eggshell Skull Rule And Related Problems In Recovery For Mental Harm In The Law Of Torts, Dr. J. Stanley Mcquade

J. Stanley McQuade

The theme of this article is the place, actual and proposed, of the "thin skull" rule in relation to mental harm.

The Remoteness Doctrine: A Rationale For A Rational Limit On Tort Liability, Victor E. Schwartz

Pepperdine Law Review

No abstract provided.

Lost Life And Life Projects, Sean Hannon Williams

Indiana Law Journal

This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At …

Tort, Moral Luck, And Blame, Christopher Jackson

Cleveland State Law Review

For the last several decades, academics have been fighting over what we might think of as the soul of tort law. Law & economic theorists contend that tort is about the efficient allocation of the costs of accidents; traditionalists view tort as a law of wrongs and redress. A common criticism wielded against the traditionalists is the problem of moral luck: It is a bedrock principle of morality that you can only be responsible for that which is under your control. But in many cases, whether and how much a plaintiff recovers against a defendant will turn entirely on factors …

Rights-Based Theories Of Accident Law, Gregory J. Hall

All Faculty Scholarship

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this …

What Is The Point Of The Tort Remedy?, Avihay Dorfman

Avihay Dorfman

A tort remedy, as the conventional wisdom has it, might serve any number of masters (ranging from justice to economic efficiency) by vindicating the status quo ante the tort. I shall argue that this view forces one to accept the proposition that the duty to restore the victim to the status quo ante the wrong done her represents a contingency – that is, one among different permissible extensions of the core of the remedial regime animating tort law. Anything outside the core of the remedial regime of tort law, which is the victim’s entitlement to have her rights vindicated by …

Tort Arbitrage, Robert J. Rhee

Robert Rhee

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the operational realities of the dispute resolution process and the negligence standard. Applying a theory of bargaining based on asset pricing principles of financial economics, this Article argues that there is systematic devaluation of tort claims in the civil litigation system. This results because in essence the parties value different tort transactions, even when they are tied together in a common dispute and view the facts and laws similarly. For the party that can mitigate the risk exposure, the discount to value …

Trespassing Through Cyberspace: Should Wireless Piggybacking Constitute A Crime Or Tort Under Louisiana Law?, Grant J. Guillot

Louisiana Law Review

No abstract provided.

The Collateral Source Rule: Explanation And Defense, Michael I. Krauss, Jeremy L. Kidd

Michael I Krauss

Tort reformers have had considerable success in their efforts to eliminate or restrict the Common law’s Collateral Source Rule. Interestingly, this rule has been largely neglected by tort theorists. The authors present a coherent and complete theory of collateral source, and develop twenty-three original thought experiments to operationalize this theory. Although one of the authors has published extensively in favor of tort reform, the collateral source rule is not among the areas needing extensive revision. The Collateral Source Rule is the "canary in the coal mine" its modification or elimination would endanger the integrity of tort law.

The No Longer Silent Problem: Confronting Noise Pollution In The 21st Century, Alexander Gillespie

Villanova Environmental Law Journal

No abstract provided.

Raising Environmental Justice Claims Through The Law Of Public Nuisance, Mandy Garrells

Villanova Environmental Law Journal

No abstract provided.

The Economic Bias In Tort Law, Ronen Perry

Ronen Perry

Economic loss is moving to the forefront of tort discourse on both sides of the Atlantic. A Council draft of the Restatement (Third) of Torts: Economic Torts and Related Wrongs is being appraised and discussed by prominent American tort scholars, and European academics are seeking common ground regarding liability for economic loss in the European Union. The time may well be ripe to focus on an unexplored, perhaps unnoticed, mystery in the common law of torts: the consequential-relational economic loss dichotomy. Consequential economic loss is economic loss that stems from physical injury to the plaintiff’s own person or property. Relational …

Tort Arbitrage, Robert J. Rhee

Faculty Scholarship

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the operational realities of the dispute resolution process and the negligence standard. Applying a theory of bargaining based on asset pricing principles of financial economics, this Article argues that there is systematic devaluation of tort claims in the civil litigation system. This results because in essence the parties value different tort transactions, even when they are tied together in a common dispute and view the facts and laws similarly. For the party that can mitigate the risk exposure, the discount to value …

Tort Arbitrage, Robert J. Rhee

UF Law Faculty Publications

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …

Third Party Copyright After Grokster, Alfred C. Yen

Alfred C. Yen

This Article studies the construction of third party copyright liability after the recent Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. This inquiry is important because third party copyright liability has become a controversial area of law that affects the viability of entire industries. Unfortunately, the law governing third party copyright liability is unclear. Grokster involved a claim of third party liability against defendants whose technology supported the sharing of music over the Internet, and it represents the Supreme Court’s attempt to bring coherence to the relevant law.

Grokster is a difficult case to understand. It added a new …