Category Archives: Torts
Aug 1, 2024 Christopher J. RobinetteTorts
In discussing tort theory, Professor Gregory Keating sometimes refers to a “third way.” By this, I take him to mean an approach to tort theory different than, and drawing from, the two major ways of explaining and/or justifying tort law. For decades, those dominant approaches were law and economics efficiency and corrective justice, though I suspect civil recourse theory has now supplanted corrective justice as the primary “rights-based” theory.
Keating’s own version of a third way emerges in the course of reading his excellent book, which builds on his previous scholarship. While engaging with law and economics (hereafter “L&E”) and corrective justice (hereafter “CJ”)/civil recourse (hereafter “CR”) scholars, Keating constructs a theory of tort law that draws from both sources. Keating is not, however, Solomonic in the sense that he is simply splitting the baby. He embraces a deontological perspective that he believes is inherent in tort law. In sum, “[t]ort is about what we owe to each other in the way of coercively enforceable obligations not to impair or interfere with each other’s urgent interests as we go about our lives in civil society.” (P. 6.) Continue reading "Professor Keating’s Third Way"
Jun 6, 2024 Anita BernsteinTorts
So many ways to suffer, so few of them redressed by the law of torts. We who teach the course cover a short list. First and foremost, physical impact on the body. Damage to tangible property. Intrusions into land, almost all of them of the visible kind.
Tort puts another set of interests in a secondary or lesser category, recognizing the possibility of real harm caused by faulty conduct but simultaneously blocking recourse with doctrinal hurdles that keep most potential plaintiffs out of court. Consequential economic loss, emotional distress, reputational harm, and interference with a possessor’s enjoyment of land fall into this category of recognized-yet-mostly-unremedied types of injury. In a pair of recent articles, both of them honored by her school as outputs originating in the same project, Hila Keren argues persuasively for an addition to this tranche. Continue reading "Public Humiliation Meets Private Law"
May 15, 2024 Nora Freeman EngstromTorts
It’s no secret that, in recent years, third party litigation funding has become something of a lightning rod. The Chamber of Commerce, some in Congress, and various states have sought to rein in a rapidly growing industry. In Opaque Capital and Mass-Tort Financing, Samir D. Parikh calls attention to a newfangled form of litigation financing in mass-tort cases, which, he believes, threatens to distort outcomes and “push victims further away from financial recovery.” (P. 32.) In so doing, Parikh helpfully reminds us that there is still much to be understood about new forms of funding before plunging into reform.
Before turning to Parikh’s argument, it’s helpful to start with a bit of background.Third-party litigation funding (sometimes called TPLF, alternative litigation funding, or ALF), is an umbrella term that refers to various lawsuit funding mechanisms. Three main flavors of funding fall under this broader umbrella. Continue reading "Shining a Light on “Opaque Capital”"
Apr 5, 2024 Anthony SebokTorts
Kenneth S. Abraham & Catherine M. Sharkey,
The Glaring Gap in Tort Theory, 133
Yale L.J. __ (forthcoming, 2024), available at
SSRN (Sept. 27, 2023).
Kenneth S. Abraham and Catherine M. Sharkey’s The Glaring Gap in Tort Theory has a dramatic title. The article, which is about the unheralded and unappreciated role that liability insurance plays in tort, promises to make good on two claims—first, that the major (or a major) “missing piece” in modern tort scholarship is liability insurance, and second, once this missing piece is identified, it is impossible to ever see tort law the same way again.
It is easy to quibble with both these claims. As to the first, it is worth observing that tort theory has been taken to task by critics for other failures, which also probably are, in the eyes of those critics, “glaring” and demand urgent correction. For example, mainstream tort theory, it has been observed, like much of academic legal analysis of the common law, ignores gender and race. Others have criticized tort law for its failure to grapple with its commitment to liberal individualism and, by extension, its complicity in the lack of equity in modern society. One might even take the view that tort’s failure to provide a framework through which climate change may be addressed is a “glaring gap” that should be addressed before its failure to identify and discuss liability insurance. Continue reading "We Don’t Talk About Insurance (no, no, no!)"
Mar 11, 2024 Kenneth W. SimonsTorts
A common but troublesome factual cause problem arises in the following medical malpractice scenario. A doctor negligently treats or fails to diagnose a patient’s medical condition, and the patient dies or suffers serious harm from the condition. The patient (or the patient’s family) can prove that due care might have prevented that harm but cannot prove this causal link by a preponderance of the evidence. In recent years, most courts have responded to this “loss of a chance” of a better medical outcome (LOC) problem not by denying all liability, and not by awarding full damages, but instead by awarding partial damages. Most scholars, and the most recent drafts of two Restatement Third, Torts projects, endorse this response.
In her illuminating and provocative article, Damned Causation, Professor Elissa Philip Gentry takes a different tack. She is deeply skeptical of overreliance on general statistics in LOC cases and urges a more nuanced approach, an approach that grants much greater discretion to the jury. In the course of her careful analysis, Gentry clarifies the complex statistical issues that these cases raise and offers a promising alternative to current judicial practice. Continue reading "Refining the Use of Probabilistic Evidence in Loss of a Chance Cases"
Feb 7, 2024 Cristina TilleyTorts
Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law and tort; of federal jurisdiction and even conflict of laws. They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort. Because they swim in and out of jurisprudential silos, they elude critical analysis under any single legal lens, virtually demanding interdisciplinary consideration. In Colorblind Constitutional Torts, Osagie K. Obasogie and Zachary Newman rise to this challenge, using history, doctrine, corpus linguistics, and critical race theory to pin down constitutional tort and identify an as-yet undiscovered reason that this once-powerful tool of racial justice is falling short of its early promise.
Colorblind begins with a compact and opinionated overview of Section 1983 history, beginning in the antebellum period and moving to the twenty-first century. Obasogie and Newman establish that pre-war slave patrols in the Southern states mutated into a loose web of post-war private and public racial vigilantism driven by “militias, the Ku Klux Klan, and eventually (in some areas) what we now call ‘the police.’” (Pp. 1148-50.) The Reconstruction Amendments, they suggest, reflected Congressional recognition that the mere fact of emancipation was insufficient to produce meaningful liberty for formerly enslaved people. The Fourteenth Amendment was therefore a critical companion initiative, designed to “change structural and institutional relations between whites and African-Americans.” (P. 1146.) Continue reading "Colorblind? Constitutional? Tort?"
Jan 8, 2024 Ellen BublickTorts
If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe. By saying that the party has no duty, the court would recognize an entitlement in the breather. When courts recognize that actors enjoy some entitlements in their daily lives, they cannot avoid deciding which entitlements come with the parties to court, when parties should have those entitlements, and with respect to whom they should apply.
In Professor Eugene Volokh’s important article, The Right to Defy Criminal Demands, Volokh makes the powerful claim that in both civil and criminal cases, courts implicitly do, and explicitly should, “protect defiance of criminal demands against legal liability even when such defiance can increase the risk that the criminal will harm third parties.” (P. 416.) The issue is one of principle. Volokh calls it a “right,” though in a Hohfeldian sense it may be a privilege/liberty or no-duty rule. Continue reading "The Rights That Come With Us to Court: No-Duty Rules for the Victims of Crime and Criminal Threats"
Nov 14, 2023 John C.P. GoldbergTorts
A.I. in the form of Large Language Models (LLMs) is altering the ways in which we work, learn, and live. Along with their many upsides, an already familiar downside of LLMs is their propensity to “hallucinate” – that is, respond to factual queries with predictions or guesses that are false yet proffered as true. And some of these hallucinations are not merely false but defamatory. For example, if one were to query an A.I. program: “Of which crimes has Professor X of ABC Law School been convicted?,” it might respond with a fabricated list of offenses. When defamatory hallucinations occur, who faces (or should face) liability, and on what terms? In Large Libel Models? Liability for AI Output Eugene Volokh lays out with great care a detailed roadmap for answering these questions.
Much of Professor Volokh’s article is devoted to considering and rejecting grounds for supposing that creators and operators of A.I. models enjoy blanket protection from defamation liability. First among these is an argument based on the tech industry’s best friend: Section 230 of the federal Communications Decency Act (“CDA 230”). As courts have interpreted it, this statute confers broad immunity on internet platforms for defamatory content created by third parties that they host or provide. As such, Volokh persuasively argues, CDA 230 will typically be of no help to A.I. companies, because, even if their models have been trained on third party texts, it is the programs, not a third party, that generates the defamatory content. Continue reading "Defamation by Hallucination"
Oct 24, 2023 Ronen AvrahamTorts
Maytal Gilboa, Yotam Kaplan & Roee Sarel,
Climate Change as Unjust Enrichment, __
Geo. L.J. __ (forthcoming), available at
SSRN (July 6, 2023).
When considering the essence of law, it becomes evident that its fundamental purpose is to safeguard our safety and well-being. However, amidst the many challenges facing humanity, the law has fallen short in shielding us from one of the gravest threats to our lives and way of life – climate change. In a new thought-provoking piece, Climate Change as Unjust Enrichment, Maytal Gilboa, Yotam Kaplan, and Roee Sarel (hereafter referred to as GKS) offer a glimmer of hope. Where international treaties, regulations, and tort law have faltered, GKS propose harnessing the oft-forgotten doctrine of unjust enrichment as a means to rescue us from the dire consequences of climate change.
Climate change, aptly dubbed the “super wicked” problem, presents an overwhelming challenge. Its impacts include severe food crises, water scarcity, rampant infections, increased rainfall and flooding, and escalated violence, among other dire consequences. Moreover, the complex nature of climate change’s harms, distributed across vast populations and with long-term effects, poses formidable barriers to effective intervention. Continue reading "Just Unjust Enrichment"
Sep 29, 2023 Gregory KeatingTorts
In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. . .. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.” (P. 1657.) Now, private law scholars—in tort, but also in contract—are coming to think that these bodies of law are parts of what Rawls called “the basic structure of society.” Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included.
Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the “privateness” of private law threatens to trivialize fundamental legal fields. Blankfein-Tabachnick and Kordana are quite right to insist that contract, property, and tort engage fundamental questions of power and justice and that theories of private law must engage these questions. And turning private law theory in this direction might breed fruitful interaction with very different kinds of tort scholarship, such as the “social justice tort theory,” championed by Martha Chamallas and Sarah Swan. That scholarship, too, insists that tort law articulates basic terms of social interaction and therefore does (or fails to do) “social justice.” Continue reading "Shifting the Paradigm in Private Law Theory"
