Category Archives: Torts

The Continued Neglect of Continuing Risk

Jun 23, 2025 Nora Freeman EngstromTorts

Nora Freeman Engstrom

In The Paradox of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, and Chance Villarreal surface and incisively explore a consequential puzzle. Across the United States, 32 jurisdictions have adopted the continuing-risk rule, which imposes an affirmative duty to warn, protect, or rescue others from continuing risks created by one’s conduct. But despite the multitude of courts that have endorsed the rule—and the rule’s unbroken acceptance in various Torts Restatements—few actual cases apply this principle.

To start, it’s important to understand what exactly the continuing-risk rule does and why it matters. Continue reading "The Continued Neglect of Continuing Risk"

Building a Community Equity Framework from the Tort of Public Nuisance

May 23, 2025 Sarah SwanTorts

Sarah Swan

For communities suffering the harms of long-standing neglect and callous infrastructure decisions that dump highways, landfills, and the like in the middle of them, legal remedies have been few and far between. In their illuminating article, Defending Home: Toward a Theory of Community Equity, Deborah Archer and Joseph R. Schottenfeld offer a new framework to render such community-based harms legally cognizable, and call on tort law as an important conceptual piece of this project.

Archer and Schottenfeld begin by telling the story of Sandridge, a small, unincorporated, historically Black community in South Carolina. When the surrounding county decided it was time for a new four-lane road project to connect two pre-existing highways and make it easier for vacationers to travel to the beach, numerous road placement options were proposed.¹ The county determined that the best path forward would be to lay the highway down right in the middle of Sandridge, even though the road would functionally destroy the community, devouring multiple homes, businesses, and the community park, and isolating the heart and soul of the community, the church, from its many attendees. Continue reading "Building a Community Equity Framework from the Tort of Public Nuisance"

The Return of Private Law

Apr 24, 2025 Anthony SebokTorts

Anthony Sebok

Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.

It is for this reason that a recent paper by Yotam Kaplan, Adi Libson, and Gideon Parchomovsky, entitled The Renaissance of Private Law, is especially timely. Their thesis is that private law can partially substitute for some of the functions performed by public law, namely the regulation, supervision, and sanctioning of private actors—especially large corporations which typically escape control by the state, and, even when they do not, ignore civil fines and penalties. Continue reading "The Return of Private Law"

The Rights and Wrongs of Constitutional Torts

Mar 27, 2025 John C.P. GoldbergTorts

John C.P. Goldberg

The federal civil rights law known as 42 U.S.C. § 1983 has garnered vast attention from the legal academy, including recent wide-ranging discussions of its qualified immunity defense. In his interesting article, Section 1983: A Strict Liability Statutory Tort, Matteo Godi addresses a more basic question, namely: what are the elements of a Section 1983 claim? Intriguingly, he maintains that the statute is best interpreted to hold officials strictly liable.

Section 1983 empowers individuals to seek redress from state officials (and certain others) for violating their federal constitutional rights. Under prevailing Supreme Court precedent, the statute does not specify a uniform liability standard. Instead, different standards apply depending on the right allegedly violated. For example, to prove an Equal Protection violation, the plaintiff must demonstrate intentional discrimination. Meanwhile, an inmate alleging an Eighth Amendment violation might have to prove maliciousness (for claims of excessive force) or deliberate indifference (for claims of unsafe conditions of confinement). Notably, in all applications the statute is understood to require conduct falling below some standard of conduct, i.e., legal fault.

According to Godi, this reading of the statute is fundamentally mistaken. As a matter of sound interpretation and normative theory, he claims, Section 1983 should be read to impose a single rule of strict liability. Thus, on his account, an inmate denied adequate medical treatment should be able to establish a constitutional tort simply by proving harm attributable to the denial, irrespective of whether the harm was intentionally or carelessly inflicted. Continue reading "The Rights and Wrongs of Constitutional Torts"

Can Tort Theory be Foundationalist?

Feb 21, 2025 Gregory KeatingTorts

Gregory Keating

Adam Slavny’s Wrongs, Harms, and Compensation: Paying for Our Mistakes rejects a basic premise of most contemporary tort theory. It renounces all aspiration to interpretive adequacy and holds contemporary tort law up to rigorous philosophical scrutiny. The results are invariably stimulating, usually illuminating, and often persuasive.

Most contemporary tort theory tries to show that the theory being propounded makes sense of tort law. Economic analysis, for example, can be, and sometimes is, presented as merely a positive account of the law of torts—as a demonstration that “common law legal rules are, in fact, efficient.”¹ This positive claim can be distinguished from the normative claim “that common law legal rules ought to be efficient.”² Sometimes economic theorists of tort do renounce all claims to normativity and insist that their views are purely positive. And sometimes they do the reverse: they renounce all interest in making sense of the law that we have and declare themselves interested only in the law as it should be.³ More often than not, though, economic theorists of tort are read to claim that tort law both is and should be efficient. Continue reading "Can Tort Theory be Foundationalist?"

When Injurers Innovate for Safety: Bridging the Gap Between Tort and Patent Law

Jan 24, 2025 Ronen AvrahamTorts

Ronen Avraham

What Do Blitz, Bic, and DuPont have in common? Blitz U.S.A. declined to add flame arrestors to its gasoline cans, despite severe injuries from explosions. Bic led the lighter market but withheld childproof designs. DuPont identified health risks in its PFOA products but opted against safer disposal methods. The reason these injurers failed to implement socially desirable safety innovations in their products was allegedly to avoid the liability risks associated with these changes. By not implementing them, they were able to evade liability, either because the harm to consumers remained unknown outside the company or because, in the absence of knowledge about the innovative safety device they chose not to develop, the product was considered legally not defective.

The problem exemplified in all these cases is that, at times, tort law provides tortfeasors with incentives to hide innovation, because implementing a safety measure can reveal a safety problem that would otherwise remain hidden. Continue reading "When Injurers Innovate for Safety: Bridging the Gap Between Tort and Patent Law"

Adding Insult to Injury

Dec 6, 2024 Cristina TilleyTorts

Cristina Tilley

As an early-career beneficiary of Jotwell, I often use my annual platform to spotlight the work of emerging or underappreciated scholars. Robert Rabin is emphatically not a member of that group. Why, then, is Stand Alone Emotional Harm: Old Wine in New Bottles the thing I like lots right now? The piece elegantly observes – and joins – an incipient movement to recenter in tort non-physical injuries that tarnish American social life. These claims have long been ridiculed by mainstream tort, so they need a prominent champion like Rabin.

Rabin’s contribution to the 2023 Clifford Symposium on Tort Law and Social Justice¹ is compact but undeniable. In eleven short pages, he makes the case that much maligned non-physical injuries actually have a centuries-long pedigree in tort. The drunken hatcheteer in I de S. v. W de S. (P. 733 (citing I de S. v. W de S., Y.B. Lib. As. Folio 99, placitum 60 (Assizes 1348)) for example, was made to pay the tavernkeeper who escaped the blade because assault doctrine recognized a personality interest extending beyond the body. The same expansive notion of personality, he observes, has been driving judges since the nineteenth century to order compensation for those suffering “serious emotional distress” at the hands of others. (P. 734.) Over time, he suggests, these exceptions have come to look a lot like a new rule, one willing to stigmatize one-on-one behavior that inflicts non-physical social harm. Continue reading "Adding Insult to Injury"

Rethinking Digital Privacy in Tort

Nov 12, 2024 Sandy SteelTorts

Sandy Steel

In his excellent book, Egalitarian Digital Privacy: Image-Based Abuse and Beyond, Tsachi Keren-Paz defends a number of interesting and provocative claims about the liability of persons in relation to the distribution and viewing of intimate images whose dissemination and in some cases, production, is non-consensual, such as revenge porn. As with Keren-Paz’s other work, the book is characterised by an engagement with foundational issues in tort law – causation, fault v strict liability, positive duties – and a detailed tracing through of the implications of theoretical positions on those issues for an important social problem.¹

The book’s primary concern is the liability of internet intermediaries – mainly, hosts and search engines – and viewers in relation to wrongful image-based content. I focus here (to the exclusion of the book’s rich discussion of several other issues) on the book’s treatment of three foundational matters raised by such cases: (1) the extent to which intermediaries ought to have positive duties to remove content that amounts to a violation of the victim’s privacy rights, (2) the causal problems that arise in relation to claims for image-based harm that is massively overdetermined, (3) the standard of liability for claims against viewers and others. Continue reading "Rethinking Digital Privacy in Tort"