American Tort Law Research Articles

Putting “Duty” Back on Track

Abstract Brown v. USA Taekwondo grapples with the problems that have dogged California law governing the determination of duty in negligence for more than fifty years now. The great California duty decisions of the late 1960s—Rowland v. Christian and Dillon v. Legg—were the bookends to an age of American tort law inaugurated by MacPherson v. Buick and Palsgraf v. Long Island Railroad. MacPherson and Palsgraf altered both the internal structure of negligence law and tort law’s relation to contract and property by making reasonable foreseeability of harm the master principle of responsibility in tort. Rowland and Dillon brought the age of reasonable foreseeability to a close. As their implications unfolded over time, we learned that making reasonable foreseeability of harm the fundamental test for both the existence of obligation and the extent of liability imposes more responsibility than we can bear. Reaching the limits of reasonable foreseeability as the master principle of duty doctrine left courts hard-pressed to say when fundamental responsibilities of care should be expanded and when they should be contracted. Ever since, California courts have been muddling their way through duty cases. They have been uncertain both about when an actor bears some responsibility for reducing a risk or mitigating a harm and about how they should go about making such determinations. USA Taekwondo’s efforts to recast Rowland’s laundry list of relevant factors as a two-step test shows us how we might begin to bring our own age of confusion to a close.

No adults allowed: Adolescents and Medical Decision Making.

The majority of the literature focused on whether consent should be extended to the adolescent population arises from themes adapted from American tort law. In contrast to the USA, Ontario does not delineate an age of consent for medical treatment and relying on American guidelines to guide practice in Ontario is problematic. While the literature is saturated with discussions for and against seeking adolescent consent, there are currently no bioethical guidelines on adolescent consent in the province of Ontario. This paper explores adolescent refusal of care and adolescent request for care in opposition to parental wishes. The paper seeks to answer the following questions: What is the difference between an adolescent and an adult in medical decision-making? What are the barriers to seeking adolescent consent? And, can the neurobiological argument be an accurate guide for obtaining adolescent consent?

Tortz: A Study of American Tort Law (Chapters 1 to 4)

This textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. When complete, chapters will cover: (1) introduction, (2) intentional torts, (3) defenses to intentional torts, (4) negligence, (5) defenses to negligence, (6) subjective standards, (7) strict liability, (8) necessity, (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation (scope of liability), (13) affirmative duty, (14) nuisance, (15) media torts, (16) business torts, (17) worker compensation, and (18) government liability and constitutional tort. This pedagogy is built on the teachings of Professor Marshall S. Shapo. Chapters will be added as they are completed, anticipating the full work by the end of 2022. (Updated with chapters 6 and 7 on November 9, 2021.)

Jurisdictional issues in the Ogoni case

The article analyzes the Ogoni case, which combines several high-profile lawsuits in the courts of Nigeria, the United States, theNetherlands, the United Kingdom, the African Commission on Human Rights, and the Court of Justice of the Economic Communityof West Africa. Practical issues related to the jurisdiction of states are covered, namely, extraterritorial jurisdiction, universal jurisdictionin civil matters, ‘piercing the corporate veil’, ‘forum shopping’, doctrines ‘forum non conveniens’, ‘forum necessitatis’, etc. The Ogonicase demonstrated the diversity and complexity of jurisdictional issues at the national and international levels. Although in terms ofjurisdiction the courts of Nigeria were the most appropriate forum to bring an action in this case, due to the inefficiency of the Nigerianjudicial system, the plaintiffs appealed to other jurisdictions. The Wiwa and Kiobel cases before the US courts can be considered asexamples of an attempt, albeit unsuccessful, to implement the extraterritorial application of US national law and to apply the principleof universal jurisdiction in civil tort cases. US courts have denied the plaintiffs’ claims under the ‘forum non conveniens’ doctrine andrefused to apply extraterritorially the American tort law to corporations located and registered in other states. In the Akpan case, theDistrict Court of the Netherlands refused to ‘pierce the corporate veil’, but the Court of Appeal ruled that it had jurisdiction to hear thacase concerning both Shell and the Nigerian subsidiary. In the Kiobel case, which is also before the courts of the Netherlands, an alternativebasis for jurisdiction was used – ‘forum necessitatis’. In the Okpabi case, the British courts have so far refused to recognize theirjurisdiction. It should be noted that the Wiwa and Kiobel cases concern the liability of Shell and SPDC for human rights violations,while the Akpan and Okpabi cases concern the civil liability for environmental damage. The above proceedings in national and internationalcourts are a clear example of ‘forum shopping’. The case was considered by the African Commission on Human Rights, whichrecognized its jurisdiction despite the absence of domestic remedies exhaustion, and by the West African Economic Community Court,which recognized its jurisdiction to hear the case under the African Charter as well as international covenants on human rights.

Jurisdictional issues in the Ogoni case

The article analyzes the Ogoni case, which combines several high-profile lawsuits in the courts of Nigeria, the United States, theNetherlands, the United Kingdom, the African Commission on Human Rights, and the Court of Justice of the Economic Communityof West Africa. Practical issues related to the jurisdiction of states are covered, namely, extraterritorial jurisdiction, universal jurisdictionin civil matters, ‘piercing the corporate veil’, ‘forum shopping’, doctrines ‘forum non conveniens’, ‘forum necessitatis’, etc. The Ogonicase demonstrated the diversity and complexity of jurisdictional issues at the national and international levels. Although in terms ofjurisdiction the courts of Nigeria were the most appropriate forum to bring an action in this case, due to the inefficiency of the Nigerianjudicial system, the plaintiffs appealed to other jurisdictions. The Wiwa and Kiobel cases before the US courts can be considered asexamples of an attempt, albeit unsuccessful, to implement the extraterritorial application of US national law and to apply the principleof universal jurisdiction in civil tort cases. US courts have denied the plaintiffs’ claims under the ‘forum non conveniens’ doctrine andrefused to apply extraterritorially the American tort law to corporations located and registered in other states. In the Akpan case, theDistrict Court of the Netherlands refused to ‘pierce the corporate veil’, but the Court of Appeal ruled that it had jurisdiction to hear thacase concerning both Shell and the Nigerian subsidiary. In the Kiobel case, which is also before the courts of the Netherlands, an alternativebasis for jurisdiction was used – ‘forum necessitatis’. In the Okpabi case, the British courts have so far refused to recognize theirjurisdiction. It should be noted that the Wiwa and Kiobel cases concern the liability of Shell and SPDC for human rights violations,while the Akpan and Okpabi cases concern the civil liability for environmental damage. The above proceedings in national and internationalcourts are a clear example of ‘forum shopping’. The case was considered by the African Commission on Human Rights, whichrecognized its jurisdiction despite the absence of domestic remedies exhaustion, and by the West African Economic Community Court,which recognized its jurisdiction to hear the case under the African Charter as well as international covenants on human rights.

Distributing Liability: The Legal and Political Battles of Y2K

In 1999 the United States Congress passed the Y2K Act, a major—but temporary—effort at reshaping American tort law. The Act strictly limited the scope and applicability of lawsuits related to liability for the Year 2000 Problem. This article excavates the process that led to the Act, including its unlikely signature by President Clinton. The history presented here is based on a reconsideration of the Y2K crisis as a major episode in the history of computing. The Act, and the Y2K crisis more broadly, expose the complex interconnections of software, code, and law at the end of the 20th century, and, taken seriously, argue for the appreciation of the role of liability in the history of technology.

'Sorry, It’s My Bad, but You’re Still Fired--& Have No Case': The Honest Belief Defense in Employment Law

'Sorry, It’s My Bad, but You’re Still Fired--& Have No Case': The Honest Belief Defense in Employment Law

The Tort of Outrage and Some Objectivity about Subjectivity

Abstract The tort of outrage has been sidelined in recent decades by judges and academics who question its legitimacy. This Article is an attempt to move outrage from the margins to the center of American tort law. It begins by unearthing the complex intellectual history that produced judicial skepticism about this tort. The Legal Realists who “invented” outrage made a strategic decision to condition liability on the “outrageousness” of behavior rather than to identify discrete acts as wrongful. This doctrinal indeterminacy was necessary to quell corporate opposition to the tort. Ultimately, however, it has led modern courts and scholars to label outrage as “inherently subjective” and therefore “disfavored.” The Article challenges this conventional view by proposing a scientific basis for distinguishing ordinary aggression from its outrageous counterpart. Neuroscience literature suggests that threats levelled with awareness of a target´s inability to follow through on the biologically reflexive fight or flight response produce physiologically maladaptive distress. In contrast, threats to which a target can freely respond produce benign, adaptive, stress. Consequently, defendant aggression is “outrageous” when it exploits a plaintiff’s known inability to execute a prosocial response. This science-based model of “outrageousness” provides a neutral baseline against which to evaluate the critique that the tort necessarily requires subjective evaluations of defendant behavior. When plaintiff paralysis results from external dynamics the defendant recognized and exploited, jurors need not assign priority to either the plaintiff’s or the defendant’s worldview to find a wrong. But when plaintiff paralysis results from internal feelings of powerlessness that may stem from race or gender experience, jurors must credit the plaintiff’s experience and disregard the defendant´s apparent ignorance of it in order to find a wrong, a process that appears to subjectively prioritize one worldview over another. So whether liability is objective or subjective in a given case turns on whether the impediment to plaintiff action was external or internal. In its concluding section, the Article undertakes an empirical examination of jury verdicts to determine the relative frequency of “objective” and “subjective” liability assignments. It finds that juries are most likely to assign liability in situations where plaintiff paralysis arose from external, objectively observable impediments recognized by defendants. In other words, outrage liability typically stigmatizes behavior that is objectively understood by both the defendant and the community at large to be antisocial. That said, juries occasionally assign liability where a woman or a person of color felt paralyzed by perceived powerlessness the defendant may not have appreciated. The Article ultimately suggests that this small but persistent segment of “subjective” verdicts – far from demonstrating the tort’s illegitimacy – highlights the social power of private injury law.

The Influence of "Reasonableness" on the Element of Conduct in Delictual or Tort Liability - Comparative Conclusions

In this contribution the influence of reasonableness on the element of conduct in the South African law of delict will be analysed and compared with the requirement of some form of conduct in English tort law, American tort law and the French law of delict.
 Fundamental similarities and differences among the different legal systems must be considered. France and South Africa follow a generalising approach to determining a delict while English and American law have a system of separate torts.
 Even though English and American law do not explicitly refer to the requirement of conduct in tort law, it is generally implicitly required. This is the case whether one is dealing with the tort of negligence or the intentional torts. In French law too, a fait générateur (a generating, triggering, wrongful act or event) generally must also be present in order to ground delictual liability. The concept of fait générateur is broader than the concept of conduct found in the other jurisdictions in that it extends beyond what is regarded as human conduct. The conduct in all the jurisdictions may be in the form of a commission (a positive, physical act or statement) or an omission (a failure to act). The requirement that conduct must be voluntary is generally found in South African, English and American law (with an exception applying to mentally impaired persons) but not in France. Naturally, it is unreasonable to hold a person liable without conduct which results in the causing of harm or loss. In all the above-mentioned jurisdictions, it would generally be unreasonable to hold the wrongdoer liable in delict or tort law if the omission or commission does not qualify as some form of conduct. Thus the influence of reasonableness on the element of conduct in all the above-mentioned jurisdictions is implicit.

The Twist of Long Terms: Disasters, Elected Judges, and American Tort Law

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth century. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule. In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: They were more likely to adopt strict liability than appointed courts. But surprisingly, state courts elected to longer terms were the most populist. Many of these judges never expected to face another election, but even without direct political pressure, they were the most responsive group of judges in adopting Rylands after the floods. This historical episode illuminates the differences between types of political influence on judges. Judicial elections generally may produce judges more sympathetic to public opinion and more responsive to recent events. Longer terms, shielding judges from opposing political pressure from industry favoring the fault rule, then allowed judges to follow those sympathies or new perceptions of public interest in favor of strict liability. The historical record suggests that judicial elections plus long terms shaped a more responsive bench. A shorthand for these effects are: filtering, fidelity, and and favor. First, these elections created a populist filter: Elections seemed to have filtered out some elite jurists from major urban centers and filtered in more local lawyer-politicians, who would be more connected to public opinion. Second, borrowing from the language used by nineteenth-century advocates of judicial elections and by modern historians, I suggest that the elected judges' fidelity to the people led them to perceive public opinion as an important factor in their decisions. Even with filtering and fidelity, judges elected to short terms would still face the reality of fear and favor, due to special interests and partisan renomination politics. Elected judges with more job security could be more faithful to their (hence, role fidelity) and could follow their own perception of public interest or public opinion, rather than industrial interests. The Article concludes with some priorities for judicial reform based upon this historical episode.

A Lost Search for a Generic Tort Action Protecting “Peace of Mind”

AbstractI plan to spend most of my time today setting forth the details of an episode in the mid twentieth-century history of American tort law, from which I intend to draw some observations on the place of history in tort law, or, put more precisely, the relationship between tort law and its surrounding cultural contexts, which amount to, when one has some distance from those contexts, its history. But before getting to that episode, I want to state, in general terms, what I take the relationship of tort law to its history to be. I don’t think tort law is any different from any other field of law, private or public, in its relationship to history. I’ve completed two books in a series called Law in American History, and am in the process of writing a third. The coverage of those works ranges from the colonial years through the twentieth century, and I take up fields in both public and private law, including torts. Throughout the books my theory of the relationship of law to its “history”–its surrounding contexts–is that the relationship is reciprocal. Law, at any point in time, is both affected by developments in the larger culture and affects them.

The Use and Misuse of Bradford Hill in American Tort Law

More than fifty years ago, Sir Austin Bradford Hill’s Presidential Address to the Royal Society of Medicine—The Environment and Disease: Association or Causation?—identified some ...

Driverless Cars and the Much Delayed Tort Law Revolution

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely to force a comprehensive rethinking of products liability, a large-scale return to the principle of strict manufacturers’ responsibility, and a host of other developments of lasting historical and economic significance. The article argues that an integration of manufacturing and insurance industries may be one of these developments.

Technological Triggers to Tort Revolutions: Steam Locomotives, Autonomous Vehicles, and Accident Compensation

AbstractWaves of technological change explain the most important transformations of American tort law. In this Article, I begin by examining historical instances of this linkage. Following the Industrial Revolution, for example, machines, no longer humans and animals, powered production. With greater force, locomotives and other machines inflicted far more severe injuries. These dramatic technological changes prompted the replacement of the preexisting strict liability tort standard with the negligence regime. Similarly, later technological changes caused the enactment of workers’ compensation statutes, the implementation of automobile no-fault systems in some states and routinized automobile settlement practices in others that resemble a no-fault system, and the adoption of “strict” products liability. From this history, I derive a model explaining how technological innovation alters (1) the frequency of personal injuries, (2) the severity of such injuries, (3) the difficulty of proving claims, and (4) the new technology’s social utility. These four factors together determine the choice among three liability standards: strict liability, negligence, and no-fault liability with limited damages. I then apply this model to the looming technological revolution in which autonomous vehicles, robots, and other Artificial Intelligence machines will replace human decision-making as well as human force. I conclude that the liability system governing autonomous vehicles is likely to be one similar to the workers’ compensation system in which the victim is relieved of the requirement of proving which party acted tortiously and caused the accident.

Intangible Damages in American Tort Law: A Roadmap

This paper is meant to provide a succinct roadmap to the many pathways taken in providing recovery for intangible harm in tort. The paper was initially prepared for a comparative law conference, and in that setting, I assumed a lack of close familiarity with the historical origins and surprisingly broad expanse of recovery for intangible harm in American tort law. While succinctly presented, the present revised treatment, for those conversant with the US system, is meant to be comprehensive, addressing defamation and privacy, no-fault and tort reform, as well as the more conventional common law topics of intangible damages in cases of intentional and accidental harm.

Ives and MacPherson: Judicial Process in the Regulatory State

AbstractA century ago, the New York Court of Appeals decided a case whose implications have reverberated through American law ever since. The case, like so many, arose out of one of the most notorious body-smashing technologies of the modern world. And it was a case whose opinion was authored by an up-and-coming jurist rumored to be a likely future nominee to the United States Supreme Court. Naturally, that opinion has appeared in torts casebooks ever since. The case, of course, was not MacPherson v. Buick, the occasion for this symposium, but rather Ives v. South Buffalo Railway, in which the New York Court of Appeals struck down what was essentially the nation’s first workmen’s compensation statute. It does not appear in that many casebooks. But it does in some. In an opinion written by Judge William Werner, the court tried to throw itself in front of the coming regulatory state. It failed, of course, at least in the most obvious sense. The regulatory state plays a vast role in the contemporary state, and has for more than three quarters of a century at least. But the Ives case’s engagement with the compensation scheme anticipated the central theme in American tort law in the century since: the relationship between tort adjudication and the common law, on one hand, and the forms of administration, on the other.

The Reductionist Fallacy and American Tort Law

Scholars have long sought to understand both the occurrence and law of torts by reducing these subjects to their working parts. This reductionism has led to a confusing array of tort rules and exceptions as well as conflicting theoretical assertions. The tort system, moreover, has been an increasingly heavy weight on the American socio-economic system. Daoism, a wisdom central to much of Chinese culture, offers a useful alternative to this reductionist thinking. By explaining the relationship between the whole and the parts, it shows how torts arose in line with a change in thinking that led to the modern industrial state and why substantive progress in this field has thus been difficult to achieve. To resolve the problem of torts, Daoism calls for a reconsideration of reductionism and eventually a return to a harmonious balance between the whole and the parts.

Non-Pecuniary Damages in American Tort and Contract Law

Non-Pecuniary Damages in American Tort and Contract Law

Private Necessity in English and American Tort Law

This article seeks to provide a comprehensive formulation of the tortious defence of necessity in English law, and to identify the lessons which can be learned by comparing it with the American privilege of private necessity set out in the Restatement (Second) of Torts.

Torts Compendium, Volume One (Version 1.0)

Casebook on American tort law covering intentional torts, strict liability, products liability, safety regulation, oblique torts (such as defamation, invasion of privacy, and intentional interference), and issues relating to parties, actions, and remedies.