Category Archives: Torts
Apr 15, 2026 Anthony SebokTorts
The Pain Brokers by Prof. Elizabeth Burch (Georgia) describes the terrible treatment suffered by a group of women who had a defective surgical device implanted into their bodies. Unlike the more familiar stories about products liability involving DES or asbestos, The Pain Brokers focuses not on the wrongdoing that led to the defective products reaching the market, but on the wrongdoing that followed the discovery of the defendants’ liability. This is the story of the mass tort system being weaponized against plaintiffs.
The Pain Brokers is a work of general nonfiction which will appeal to various audiences. It takes the reader into a world that many may have already encountered in books like Michael Lewis’ Liars Poker and films like The Wolf of Wall Street. No one in the early 21st Century would be shocked to discover that lawsuits can be commodified and sold just like junk bonds or crypto currency. The book will appeal to readers who believe that America is dangerously obsessed with financialization, to the detriment of the larger society. Continue reading "The Shame of Mass Torts"
Mar 12, 2026 John C.P. GoldbergTorts
Kenneth S. Abraham,
The Liability Revolution That No One Saw Coming, 78 Fla. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 31, 2025).
At the outset of his very interesting article, The Liability Revolution That No One Saw Coming, Kenneth Abraham, one of our most distinguished scholars of tort and insurance law, posits an irony concerning predictions about law. As Holmes famously observed, law practice is all about anticipating judicial decisions. Yet, according to Abraham, lawyers – and adjacent actors including insurers and law professors – are not expected to predict, and have not predicted, broader shifts in the legal landscape, some of which have had huge significance.
The bulk of the article discusses three broad twentieth-century legal developments: (1) the rise of mass tort law; (2) the expansion of insurers’ coverage costs for liabilities generated by environmental and tort law; and (3) the conclusion of the expansionary phase of American accident law. According to Abraham, nobody in law saw these important developments coming. Continue reading "What Can The Reasonable Lawyer (and Law Professor) Foresee?"
Feb 10, 2026 Ronen AvrahamTorts
What happens when a self-driving car kills someone and there is no human driver to blame, no detailed public regulation to point to, and a jury that has never heard of ISO 26262 or UL 4600? Who decides what “reasonable care” means when safety choices are embedded in code, sensors, and validation protocols rather than in a driver’s split-second decision?
In his insightful paper Swords and Shields, Gary Marchant argues that in this world, private technical standards will quietly become the real baseline for tort law. Standards written by SAE, ISO, UL, IEEE, and other standard-setting organizations—largely unfamiliar to most people—will serve as shields for autonomous-vehicle (AV) manufacturers who comply with them, and as swords for plaintiffs when manufacturers ignore them. Continue reading "Private Standards as Swords and Shields for Autonomous Vehicles"
Jan 13, 2026 Gregory KeatingTorts
In an illuminating article, A Novel Tort Duty for Platforms that Intermediately Produce Real World User Interactions, Jordan Wallace-Wolf proposes that we recognize that a distinctive duty of care should attach to internet platforms that “cultivate” markets. Ridesharing Apps— Uber and Lyft— are the paradigm platforms that he has in mind. Professor Wallace-Wolf’s perceptive proposal warrants careful consideration. It puts its finger on properties of the interactions that platforms promote that courts and other commentators have not identified as clearly. And its proposed liability rule responds to those properties in an attractive, justified way. Continue reading "Sponsoring Torts: Reconceptualizing Platform Liability"
Dec 3, 2025 Sandy SteelTorts
Nico Cornell’s terrific book Wrongs and Rights Come Apart rejects the commonly held view that moral wrongs are simply moral right violations. Rather, wrongs and rights ‘come apart’: there can be wrongs without right violations and right violations without wrongs.
The book proceeds by providing a range of powerful examples from law, philosophical writing, and literature to make its case. How can we tell, in these examples, whether a person has been wronged but their rights not violated? Cornell provides an account of the characteristic features of an entity holding a right: (1) the power to waive the correlated duty, (2) the fact that certain conduct can be demanded by that person, (3) enforceability of the correlated duty, (4) the presence of a special kind of reason (a trump or an exclusionary reason), and (5) a distinctive phenomenology. (Pp. 14-15.) Continue reading "Are Wrongs Always Right Violations?"
Nov 3, 2025 Cristina TilleyTorts
Tom Baker,
What Is Insurance for Tort Law?, 111
Va. L. Rev. __ (forthcoming 2025), available at
SSRN.
It is a truth rarely acknowledged by tort theorists that personal injury lawyers in possession of good plaintiffs must also be in want of insured defendants. Tom Baker acknowledges that truth in What is Insurance for Tort Law?, and follows it to some bracing conclusions. Baker’s article is a welcome rejoinder to Kenneth Abraham and Catherine Sharkey’s recent call to treat insurance as a constitutive part of tort doctrine and practice. Abraham and Sharkey embrace liability insurance as an economically “beneficial” aspect of tort practice that “spreads the risk of tort liability, []helps to promote safety, ensures compensation for some tort victims who would otherwise not be compensated, and enables planning and budgeting . . . by potential defendants.” Not so fast, Baker warns. When an insurance eminence like Baker issues a warning, it’s a good idea to listen. Yes, he agrees, tort and insurance are in the symbiotic business of distributing compensation. But Baker argues that tort should aspire to non-economic goals like corrective justice, and then artfully demonstrates how yoking injury outcomes to insurance pricing mechanisms can hobble that goal.
Baker begins with a frank and comprehensive look at how liability insurance influences tort in action. Because insurance “provides the money that changes hands through tort claiming,” (P. 8) lawyers who earn contingency fees are reluctant to sue uninsured defendants and insured defendants typically cede control over litigation to insurers. And because the universe of tort cases is determined by the infrastructure of insurance, tort doctrine has developed in ways that reflect and amplify the interests of insurers. For example, insurers who manage large pools of litigation are positioned to cherry-pick cases as vehicles for friendly changes to procedural and doctrinal rules. (Pp. 12-15.) Further, by tracing verdicts back to centralized insurers rather than to decentralized defendants, lobbyists can depict plaintiff compensation as an “insurance crisis” that justifies anti-plaintiff legislative reforms like damage caps, the restriction of joint and several liability, and limits to the collateral source rule. (Pp. 17-18.) Most notably, plaintiffs lawyers fill their rosters with clients whose claims can “plead into” existing insurance. Consequently, they prioritize cases involving premises liability, bodily injury, and property damage and devalue cases involving pure emotional or economic loss. (P. 15.) Continue reading "Price and Prejudice"
Oct 6, 2025 Kenneth W. SimonsTorts
Emad H. Atiq,
The Disaggregated Hand Formula, 114
Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 1, 2025).
The Learned Hand test is both famous and infamous. The main source of its fame is the law and economics movement, which drew attention to the test in the 1970’s. According to Richard Posner and other scholars in that movement, the test is both a descriptively accurate account of how legal fact-finders understand negligence, and a normatively attractive account of why tort law imposes liability for harms caused by negligence—namely, to promote efficiency and minimize the aggregate costs of precautions and the harms that precautions could avoid.
But the Hand test is also infamous. The test provides that an actor is negligent just in case the burden of taking a precaution (B) is less than the probability of the harm that the precaution would have avoided multiplied by the severity of that harm (PxL). Critics protest that the test is not an accurate account of how the law defines negligence. And more fundamentally, they object that treating this formula as the test of negligence is normatively objectionable, indeed abhorrent. If the burden is only slightly more than the expected harm (the harm’s severity discounted by its probability), the formula declares that the actor may freely impose the risk without fear of tort liability if the risk generates harms–even very serious harms–to others. Continue reading "Does the Hand Formula Express Efficiency or Justice? Or Both?"
Sep 2, 2025 Ellen BublickTorts
In the age of artificial intelligence (and statistics before that), there is a great need for these frameworks’ constant companion – data. After centuries of common law tort actions, and millions of lawsuits filed, one might think that much would be known about these suits. Not so. As James Anderson and co-authors from the Rand Institute for Civil Justice write, “Remarkably, there is little recent empirical research in the United States that measures the extent and sources of compensation, benefits, and assistance that individuals may receive after they suffer personal harms.” (Pp. 97-98.) Tort law counts among these empirically-neglected sources.
Anderson and the current RAND crew set out to fill this information gap. In tribute to Stanford Law School Professor Deborah Hensler and her pioneering empirical work on civil justice claims, the authors surveyed 17,000+ adult Americans about injuries, illness, and the ways in which losses from these difficulties were addressed. Using a standard that measured respondents’ lost days of work, inability to perform regular activities, multiple visits to a healthcare provider, nights in the hospital and visits to the emergency room, the researchers winnowed the group down to roughly 3,000 people who had suffered “significant injury or illness” under the study criteria in 2017. (P. 98.) Those 3000 people were asked to provide detailed information about the extent and manner of their injuries or illness; the harms, treatments, and expenses they endured; the sources of compensation they relied on; their views about attribution of blame; and their decisions to consult a lawyer, initiate suit, and pursue a claim. About two years after these first inquiries, the researchers sent follow up questions to learn more. Continue reading "When Do Injured People Sue? New Empirical Research on Blaming and Claiming in Tort Law"
Sep 2, 2025 Christopher J. RobinetteTorts
The vast majority of tort cases are settled, and many of the settlements include confidentiality provisions that prevent the public from learning about the allegedly wrongful conduct. This has been true for decades, but the confidentiality provisions—nondisclosure agreements (“NDAs”)—have become increasingly controversial. The #MeTooMovement provided momentum to criticism of NDAs, and multiple states and even the federal government have passed legislation restricting their use.
But do such “sunshine laws” matter to plaintiffs? Noting the lack of empirical data on the issue, Professor Gilat Juli Bachar fills the void with the first article to examine the “extent to which a confidentiality clause affects plaintiffs…when weighing a settlement offer….” (P. 1260.) Such information is important because “the real-world impact of sunshine laws ultimately depends on the litigants themselves.” (P. 1206.) Not only does Professor Bachar shed light on how NDAs are perceived, but she also delves further to identify other factors affecting a plaintiff’s willingness to settle. Bachar’s excellent article is useful on the prominent issue of NDAs, and her methods have the potential to reveal information crucial to a better-functioning civil justice system. Continue reading "Why Plaintiffs Settle"
Jul 21, 2025 Anita BernsteinTorts
Writers who study torts tend to engage with liability as a force or vector that imposes consequences on parties accused of injuring others. For most of us in this field, liability means accountability or reckoning. This occupational interest in what tort does in action, or can do when it’s enlisted, can obscure the impacts of shelters from accountability.
Removing Torts marks Betsy Grey’s return to a source of tort nonaccountability that Professor Grey knows backwards and forwards, the statutory kind. This refuge has ample company in the land of shelters. Fortuitousness, for example, also fends off reckoning: Prospective defendants get lucky when prospective plaintiffs don’t know what hit them, run out of time or money, fail to clear the intake criteria of a contingent-fee attorney, on and on. Judge-made immunities of the common law—especially the intrafamily and charitable kind—are more orderly, though they’ve dwindled into something of a quaint oddball relic. Continue reading "BEWARE OF SHELTER"
