Torts Commons^™

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

Looking To Torts: Exploring The Risks Of Workplace Discrimination, Catherine E. Smith

Scholarly Articles

Tort law plays a powerful role in defining cognizable harms and allocating responsibility based on concepts of fault, individual and community interests, social values, morality, compensation, deterrence, and notions of fairness. So, the idea that it may serve as a source of guidance in employment discrimination law, and in particular, in one of the most intractable debates within employment discrimination jurisprudence--the requirement of discriminatory intent--is not "unreasonable." To shift from an intentional discrimination mindset to one focused on risks of discrimination will not be easy. Hopefully, this brief inquiry has offered some food for thought.

Chapter 58: Disclosure Of Medical Information In Pretrial Settlements With Marriage And Family Therapists, Brian Geremia

McGeorge Law Review

No abstract provided.

Derailed: The Locomotive Inspection Act And The Need To Extend The Field Preemption, Rebecca Diel

McGeorge Law Review

No abstract provided.

Setting Parental Controls: Do Parents Have A Duty To Supervise Their Children’S Use Of The Internet?, 31 J. Marshall J. Info. Tech. & Privacy L. 309 (2014), Alberto Bernabe

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

A Test By Any Other Name: The Influence Of Justice Breyer's Concurrence In Kiobel V. Royal Dutch Petroleum Co., Alex S. Moe

Loyola University Chicago Law Journal

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application to the Alien Tort Statute (“ATS”). In doing so, the Court undermined the generally accepted view of the ATS: that it could apply to actions abroad. Applying this presumption severely limited the factual circumstances that could produce a viable ATS claim. The majority opinion carved an exception, permitting extraterritorial ATS claims that “touch and concern” the United States, but declined to set more specific guidelines. In the absence of such guidelines, lower courts have applied the presumption in an overbroad fashion, barring claims that …

Proving Toxic Harm: Getting Past Slice And Dice Tactics, Andrew S. Lipton

McGeorge Law Review

No abstract provided.

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

Are You Free To Contract Away Your Right To Bring A Negligence Claim?, Scott J. Burnham

Chicago-Kent Law Review

This article explores the enforceability of the exculpatory clause—a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed, followed by the author’s view of the rubric by which the enforceability of the clause should be measured. The article concludes by deconstructing one contract in which the clause was found.

Contract Law And The Hand Formula, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Third Party Funding Of Personal Injury Tort Claims: Keep The Baby And Change The Bathwater, Terrence Cain

Chicago-Kent Law Review

In the early 1990s, a period of high-risk lending at high interest rates, a new entrant emerged in civil litigation: the Litigation Finance Company (“LFC”). LFCs advance money to plaintiffs involved in contingency fee litigation. The money is provided on a non-recourse basis, meaning the plaintiff repays the LFC only if she obtains money from the lawsuit through a settlement, judgment, or verdict. If the plaintiff recovers nothing, she will not owe the LFC anything. When she does repay the LFC, however, she could end up paying as much as 280% of the amount advanced by the LFC. As one …

Sanctions Or Tort? A Review Of Ohio's Treatment Of Independent Causes Of Action For Spoliation Of Evidence, Justin J. Hawal

Cleveland State Law Review

The Note that follows will explore the different variations of independent torts for spoliation as well as various policy arguments used by supporters and critics of the torts. Specifically, Section II of this Note will explore the history behind the recognition of independent torts for spoliation. Section III will explain the traditional remedies courts have used to combat spoliation of evidence, and Section IV will detail the various forms of the spoliation tort. Section V of this paper will examine various policy arguments employed by supporters and detractors of the torts. Section VI will examine Ohio’s treatment of the various …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

What Boilerplate Said: A Response To Omri Ben-Shahar (And A Diagnosis), Margaret Jane Radin

Law & Economics Working Papers

This essay responds to Omri Ben-Shahar’s review of my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). Ben-Shahar’s review (available at: http://ssrn.com/abstract=2255161) unfortunately does not convey the nature of this book to possible readers. His preconceptions – reflecting primarily what I call “old-school Chicago”--apparently caused him to believe that some strong version of “autonomy” was the focus of my book. Instead, the book’s purpose is to gather together a broad range of ideas relevant to boilerplate, in order to encourage readers to consider opportunities for improving our theory and practice. It makes detailed suggestions …

Warr V. Jmgm Group: Maryland Dram Shops Escape Duty To Foreseeable Victims Of Drunk Driving, Katherine O'Konski

Maryland Law Review

No abstract provided.

Foreword – Institutional Responsibility For Sex And Gender Exploitation, Nancy Levit

Faculty Works

Organizations are increasingly being held accountable for sex and gender exploitation perpetrated by individuals who are associated with them. The idea of litigating toward gender justice by making institutional actors responsible for various forms of sex and gender discrimination unites the articles in this Symposium.

This Foreword begins by tracking the evolution of tort law from its early vindication of isolated individual claims to its much more recent incarnation as an instrument of social reform for collective interests. The second part addresses legal impediments that prevent redress of certain types of gendered harms — ranging from areas that are virtually …

Protecting Freedom Of Testation: A Proposal For Law Reform, Eike G. Hosemann

University of Michigan Journal of Law Reform

This Article addresses a problem ever more pressing in wealthy and aging societies like the United States: interference with freedom of testation by the use of wrongful means such as undue influence or will forgery to acquire benefits through inheritance. A detailed analysis of the remedies against interference with freedom of testation under inheritance law, tort law, and equity reveals that there is currently a significant under-deterrence of this undesirable behavior. Hence, this Article proposes a new remedy in order to protect freedom of testation more effectively: a disinheritance statute barring wrongdoers that have infringed upon someone’s freedom of testation …

What Is Troubling About The Tortification Of Employment Discrimination Law?, William Corbett

Journal Articles

No abstract provided.

An Introduction To Climate Change Liability Litigation And A View To The Future, Joseph Macdougald

Faculty Articles and Papers

No abstract provided.

Tort As A Substitute For Revenge, Scott Hershovitz

Book Chapters

In 1872, the Supreme Court of Illinois decided a case called Alcorn v Mitchell. It was not the first litigation between the parties. Some years earlier, Alcorn had sued Mitchell for trespass. That suit did not go well, and at the close of the trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1,000, which was a lot of money back then—depending on how you think about the change in value of money over time, the present day equivalent would range from just …