Category Archives: Torts
Feb 27, 2013 Anthony SebokTorts
In The Moral Significance of Risking, John Oberdiek offers a theory of why risk imposition is prima facie wrong. Oberdiek admits that his argument will only be persuasive if he applies it to risk imposition in its purest form (what he calls “risking”). Risking’s moral significance – if it has any – must be based on the imposition of the risk of harm, and not the harm itself. In other words, if risking is wrong, it shouldn’t matter in our evaluation of it that the risk of injury never ripened into an injury. Thus, second-order effects of risking on the victim, such as emotional distress, cannot justify the conclusion that risk-imposition is wrong. Similarly (although Oberdiek does not discuss this) instrumentalist accounts for imposing liability on the basis of risk obviously cannot explain why risking is wrong, given that risking is significant to an instrumentalist only to the extent that deterring it would result in the optimal level of harm.
Although Oberdiek claims that his article is about risk imposition from the perspective of moral philosophy, he is quite conscious of the fact that his argument, if accepted, would reshape debates in law, especially tort law. Further, he recognizes that establishing the fact that risking is wrong does not answer the question whether any particular act of risking should be condemned or should be the basis of a liability judgment. His only point in this article is to say that risking is a prima facie wrong, and it may be the case that it is justified in many situations in the balance of reasons, or excused, or, in the case of private law, left unrecognized like other moral wrongs that do not generate liability. Continue reading "Are Risks Wrong?"
Jan 18, 2013 John GoldbergTorts
W. Jonathan Cardi, Randy Penfield & Albert Yoon,
Does Tort Law Deter?, Wake Forest Univ. Legal Studies Paper No. 1851383 (2011),
available at SSRN.
Why have tort law? After all, other laws and institutions cover a lot of the same ground. If we want to punish bad actors, there is criminal law. If we want to ensure safety, there is regulatory law. If we want to aid injury victims, there is public and private insurance. What’s left for tort?
A standard answer is that tort, with its threat of liability, deters people from engaging in conduct that unduly risks harm. Tort law is needed for this purpose, the answer continues, because a good deal of risky conduct falls outside the ambit of criminal and regulatory law. For example, injuring someone by careless driving usually isn’t a crime, so the threat of negligence liability fills the void. Of course this answer assumes that the prospect of liability will actually induce people to act more carefully. Does Tort Law Deter?, by Professors Cardi, Penfield, and Yoon, is an innovative attempt to harness social science methods to investigate that assumption. Continue reading "Against the Law?"
Dec 3, 2012 Sheila ScheuermanJotwellTorts
Joseph Sanders, Matthew B. Kugler, John M. Darley and Lawrence M. Solan,
Torts as (Only) Wrongs? An Empirical Perspective (Brooklyn Law School, Legal Studies Paper No 302, 2012) available at
SSRN.
A long-enduring question in tort scholarship concerns the purpose of tort law. One camp, anchored by the powerful scholarship of John Goldberg and Ben Zipursky, argues that tort is a law of fault and wrongs, and strict liability is sort of that weird cousin no one likes to talk about much.
In a compelling new sociological study, however, Joseph Sanders tests the idea of tort as wrongs (and only wrongs), and adds to the scholarly debate about tort’s rationales. Sanders persuasively argues that—far from being “at the margin of tort law” —from the public’s perspective, strict liability reigns supreme. In four discrete studies, Sanders assessed whether the public believes fault or wrongdoing is a requirement for tort liability. His thoughtful article presents some surprising findings that should have those of us in the academy taking another look at the purpose of tort law. Continue reading "A Preference for Strict Liability?"
Nov 5, 2012 Gregory KeatingTorts
In Mistakes, Misunderstandings and Misalignments, Jules Coleman joins the debate precipitated by Ariel Porat’s Misalignments in Tort Law and carried on by Mark Geistfeld in The Principle of Misalignment: Duty, Damages and the Nature of Tort Liability, and by Israel Gilead and Michael D. Green in Maligned Misalignments. Coleman’s contribution to the debate is important both in its own right and because the larger debate in which it figures represents the state of play with respect to important issues in tort theory. That debate throws into relief the issues that now divide wrongs-oriented and efficiency-oriented theories of tort. The debate also flushes out the lurking significance of “harm” as perhaps the most understudied concept in tort law.
Professor Porat’s originating contribution identifies five misalignments in negligence law—circumstances where the risks accounted for in setting the standard of care differ from the risks for which liability is imposed and damages are awarded at the conclusion of a successful negligence suit. Alignment requires that the same risks be taken into account and the same valuations used by courts in setting the standard of care and in imposing liability and damages. Misalignments are a sign that the law may be structured in a way which leads potential injurers to make inappropriate investments in accident prevention. Professor Porat’s fine paper prompted three diverse rejoinders. Professors Gilead and Green rejoined that the misalignments may be ways in which the law of torts takes approximate account of negative externalities. Continue reading "The (Mis)alignment Debate"
Oct 9, 2012 Catherine SharkeyTorts
Omri Ben-Shahar & Kyle D. Logue,
Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111
Mich. L. Rev. (forthcoming 2012)
available at SSRN.
In Outsourcing Regulation: How Insurance Reduces Moral Hazard, Omri Ben-Shahar and Kyle Logue make a pitch for the underappreciated role of insurance as manager and minimizer of safety risks.
The study of tort law in the modern administrative state increasingly entails a comparative institutional account of private common law versus public agency control in terms of satisfying the goals of compensation and regulation of safety risks. I would go so far as to say that the future of tort law and scholarship belongs to those who tackle complex health and safety issues by integrating concepts and doctrines drawn from public administrative law and private tort law. Ben-Shahar and Logue make a major contribution by adding the third dimension of insurance: “Choosing the ideal regulatory role of these two institutions—agencies versus courts—depends on how well insurance arrangements support the regulatory function of tort and agency law.” (P.20) Continue reading "Insurance as Safety Regulator"
Oct 8, 2012 JotwellJotwellTorts
Torts Section Editors
The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.
Professor Gregory Keating
William T. Dalessi Professor of Law and Philosophy
USC Gould School of Law
Professor Catherine Sharkey
Crystal Eastman Professor of Law
New York University School of Law Continue reading "Meet the Editors"
Oct 8, 2012 JotwellTorts
Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.
Although gentle critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. Continue reading "Call For Papers"
Oct 8, 2012 JotwellTorts
The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics can go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.
We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"
