Tort Doctrine Research Articles

Achieving True Strict Product Liability (But Not For Plaintiffs With Fault)

Under modern tort law, the “strict” product liability cause of action does not impose true strict liability (liability without fault). This Article suggests that this counterintuitive development is not the byproduct of a policy choice. Instead, an unresolved doctrinal difficulty is responsible for the modern requirement that a plaintiff prove fault before winning on a “strict” product liability claim. The doctrinal difficulty is this: How can tort law impose liability on faultless product manufacturers while simultaneously preventing plaintiffs with fault from being able to recover under a true strict liability standard? This Article posits that both results are desirable—true strict product liability, but not for plaintiffs with fault—but that it is analytically difficult to assemble tort doctrine to get both results. Without a doctrinal solution that allows for both results, courts have (mostly) retreated from a true strict product liability standard. This Article offers a simple solution to this analytical/doctrinal riddle: Restoring the strict product liability cause of action such that it truly imposes liability without fault, while allowing defendants a contributory negligence (flat-bar) defense to this strict liability claim. Under this doctrinal change, plaintiffs without fault would be able to recover from manufacturers on a true strict product liability claim. Plaintiffs with fault, however, would be forced to pursue a negligence claim, meaning that their ability to recover would require them to show that the defendant also had fault. This doctrinal fix uses tools and concepts already familiar to modern tort law and is thus easily achievable. In fact, all that is necessary to effectuate this result is a simple, minor change to the current comparative fault jury instructions used in most jurisdictions.

The Tort of Discrimination

Abstract This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

The reinvention of Canadian tort law, 1945–95:Jordan Houseas case study

This article employs the case study method to investigate the social history of Canadian tort law and litigation after 1945. Its focus is Menow v Jordan House, the stem precedent of the Canadian common law of tavern-keeper liability for intoxicated patrons. The article examines the historical genesis, pleading, and adjudication of this litigation, probing why – in Canada in the late 1960s and early 1970s – the novel tort claim of an ejected intoxicant against a vendor of alcohol not only was imagined, discussed, and commenced but also was won by the plaintiff at three levels of court. The authors argue that the Jordan House lawsuit exemplified a pivotal moment of socio-legal discontinuity in Canada, portending a quarter century of change in three major facets of its tort law system: in the perceptions of lay persons with respect to their private legal rights and obligations; in the personal convictions, social geography, and litigation strategies of Canadian lawyers; and in the formulation of tort doctrine by Canada’s trial and appellate judges. The article is a sub-study of a larger project on the reinvention of tort law and litigation in Canada in the half-century after World War II.

Chancy Causation in Tort Law

Abstract Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in legal theory, scientific fact plays only a minimal role in chancy causation cases. As a matter of metaphysics, factual inquiry can only determine whether an event has a tendency to cause an outcome. Yet tort doctrine requires that the plaintiff prove a counterfactual: that but for the event, the outcome would not have occurred. Understanding that in chancy causation cases proving the counterfactual is impossible is the first step towards a discussion of what really ought to matter in chancy causation cases: whether imposing liability is normatively desirable. Methodologically, the Essay builds on scholarship about the metaphysics of causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.

Justifying and Categorizing Tort Doctrines: What Is the Optimal Level of Generality?

Justifying and Categorizing Tort Doctrines: What Is the Optimal Level of Generality?

Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?

Abstract This essay explores the issue of generality and tort law from two directions. First, when common law judges offer justifications of tort doctrine, what is the appropriate level of generality or specificity of those justifying principles and policies? Second, when judges identify and refine tort doctrines, what is the appropriate level of generality or specificity of the doctrines themselves? With respect to the first issue, Stephen A. Smith has argued that judges ordinarily do, and should, invoke only “intermediate” justifications for their decisions (such as dignity, fairness, or reasonableness), rather than “foundational” ones (such as utilitarianism or corrective justice). Smith’s argument has some purchase: intermediate principles indeed do and should play a prominent role in common law decision-making. However, foundational principles can legitimately play a more significant role than Smith suggests, especially if they are pluralistic. And intermediate principles are sometimes too vacuous to operate as genuine justifications. With respect to the second issue, Stephen D. Sugarman and Caitlin Boucher have proposed that numerous torts that might be characterized as “dignitary” torts should be merged into a single “unifying” tort, the tort of wrongfully harming another’s dignity in a highly offensive way. The authors plausibly argue that courts have not paid sufficient attention to gaps and arbitrary distinctions between these torts. However, their more radical claim that one uber-tort should replace all “dignitary” torts is not persuasive. Torts as distinct as battery, false imprisonment, intrusion into a private place, and malicious prosecution reflect distinct wrongs and should not be supplanted by a single tort prohibiting wrongful and highly offensive conduct. The analysis offered in this essay is informed by many examples from the Restatement Third, Torts: Intentional Torts to Persons, for which I have served as co-Reporter or Reporter.

Social Justice Tort Theory

Abstract Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory

Abstract Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability. The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake. In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.

From Liability Shields to Democratic Theory: What We Need from Tort Theory Now

Abstract In the United States, one startling response to COVID-19 has been a push for so-called “liability shields,” laws modifying tort doctrine so as to largely eliminate tort liability for negligently causing COVID-19. Though not enacted at the federal level, such changes have been adopted in numerous states. This article excavates and articulates the tort theory that lies behind this puzzlingly response to a pandemic. I call the theory “tort deflationism.” Grounded in modern American conservatism and with a doctrinal pedigree dating back to the 1970s, tort deflationism explains and justifies only minimal tort liability, out of deference to non-governmental actors – especially family, church, and business—and suspicion of government competence and power. Other tort theories should reckon with tort deflationism, and I discuss some challenges of doing so. The contest between tort deflationism and other theories speaks to ongoing debates about the legitimacy of law in pluralist democracies. I urge tort theorists to enter these debates and to consider their implications for tort law itself.

Instrumental Comparative Tort Law

Abstract This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.

Is ‘conversion therapy’ tortious?

AbstractSo-called ‘conversion therapy’ involves therapeutic attempts to change an individual's sexual orientation or gender identity. It is widely considered to be harmful to sexual minorities and there have been calls for it to be banned in the UK. In this paper, we examine whether victims of the practice could bring tort claims against ‘therapists’ for mental harm. Focusing on talking therapies, we assess tort doctrine in the law of negligence, the rule in Wilkinson v Downton, the Protection from Harassment Act 1997 and deceit. We conclude that while some forms of conversion therapy will be tortious, others will not and so this area of law may fail to assist many victims of the practice.

Relational Wrongs and Agency in Tort Theory.

—Some of those theorists who believe tort law consists of relational wrongs also believe, under the influence of Kant’s legal philosophy, that tort law is concerned for the agency of the two parties to a wrongful interaction. I argue that these theorists should discard their agency framework. It distorts our view of tort doctrine and does not really fit the law’s relational structure. We can reach a better understanding just by pursuing the idea that torts are relational wrongs. I try to diagnose and suggest cures for the intellectual tendencies that lead Kantian theorists away from this approach.

Social Justice Tort Theory

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

To have and to hold: Emotional distress, divorce denial, and the politics of interspousal torts

Abstract While domestic abuse can manifest itself in many forms, one example of abuse within the divorce process is the denial of the religious divorce. In Jewish law, the parties must transact a bill of divorce (known as a get) before they are divorced. If a spouse refuses to cooperate with this process, they limit their former partner’s ability to date and remarry within the community, effectively maintaining coercive control post-divorce. This article will examine whether or not victims of get refusal would be able to recover monetary awards under the tort doctrine of Intentional Infliction of Emotional Distress (IIED). This article will argue that while the facts of get refusal meet the central elements of the tort of IIED, these cases are unlikely to succeed in most states due to the court system’s reluctance to apply IIED to interspousal torts. The reasons behind this hesitation draw on the complex history of domestic abuse and tort law, and historical legal prioritizations of family privacy over abuse victims’ safety. Additionally, I will explore the history of the IIED tort as a vehicle for social change and examine how IIED can still play that role today. Ultimately, I will argue for the necessity of courts’ abandoning lasting vestiges of the marital privacy doctrine and providing redress to victims of this insidious form of domestic abuse.

Chancy Causation in Tort

This Essay demonstrates that the causation inquiry in tort law, at least where causation is chancy, is largely a normative inquiry. Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in both tort theory and doctrine, scientific fact plays only a minimal role in chancy causation cases. Understanding this reality opens the door to considering what approach to causation is normatively desirable. The Essay proposes a change in the doctrine that effectuates this observation. Methodologically, the Essay utilizes a metaphysical inquiry into causation as a first step to understanding this legal concept. If it is true that causation cannot be pinned down deterministically, as chancy causation cannot, then what determines factual causation? The answer is policy. I call this approach “pragmatic” because like the pragmatists of the late 1800s, it evaluates the use of an idea rather than claims regarding its metaphysical truth. But there is a metaphysical piece here as well. We only get to the point of applying a pragmatic analysis by understanding something about the metaphysics of causation.

Tort Law, Corrective Justice and the Problem of Autonomous-Machine-Caused Harm

Developments in artificial intelligence and robotics promise increased interaction between humans and autonomous machines, presenting novel risks of accidental harm to individuals and property.1 This essay situates the problem of autonomous-machine-caused harm within the doctrinal and theoretical framework of tort law, conceived of as a practice of corrective justice. The possibility of autonomous-machine-caused harm generates fresh doctrinal and theoretical issues for assigning tort liability. Due to machine-learning capabilities, harmful effects of autonomous machines may be untraceable to tortious actions of designers, manufacturers or users.2 As a result, traditional tort doctrine—framed by conditions of foreseeability and proximate causation—would not ground liability.3 Without recourse to compensation, faultless victims bear the accident costs of autonomous machines. This doctrinal outcome reflects possible incompatibility between tort’s theoretical structure of corrective justice and accidents involving autonomous machines. As a practice of corrective justice, tort liability draws a normative link between particular defendants and plaintiffs, as doers and sufferers of the same tortious harm, grounding defendants’ agent-specific obligations to repair the harm. Where accidents are caused by autonomous machines, the argument goes, the essential link between defendants and plaintiffs is severed; since resulting harm is not legally attributable to the human agency of designers, manufacturers or users, victims have no remedy in tort.

The Moral of Torts

Tort theory is an anxious field, trying either to explain the body of tort law through a unified account or surrendering to the view that torts is just an accumulation of ad hoc “policy” judgments without a consistent explanatory basis. In this chapter, we argue that the natural law theory in the Christian tradition breaks through this impasse in tort theory by showing how the basic outlines of tort law are properly derived from principles of morality, while the details within that framework are left open for choice among a wide range of reasonable arrangements. In our view, central aspects of natural law theory such as its account of the relation of law and morality and the manner in which positive law is derived from the natural law explain and justify tort doctrine.

Structure, Function, and Tort Law

AbstractA popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

,,,Paying for Disasters

In June and July, 2019, record flooding inundated towns and agricultural land throughout the Mississippi basin, surpassing the Great Flood of 1927, one of the worst disasters in U.S. history. In November, 2018, the Camp Fire in Northern California decimated the town of Paradise and became the deadliest and most destructive wildfire in California history. As climate change increases the severity of droughts, wildfires, flooding, hurricanes and other extreme weather, property damages will escalate and individuals, companies, and governments will seek cost reimbursement from others. Ultimately, we must all pay the economic costs of climate change that we cannot avoid through prevention, disaster response, and retreat. All of us contribute to climate change but the costs of climate-related harms are not fairly distributed across our communities. This Article examines the ways we are currently paying for disasters. Those seeking recovery for property damage from disasters have increasingly turned to state inverse condemnation and damagings claims. These claims offer an alternative to tort liability and align government incentives to act for the public benefit while taking into account those individuals and entities who suffer greater burdens. The author proposes that inverse condemnation and damagings claims in all states and the federal government should apply a strict liability standard, which would compensate those people damaged by activities designed to benefit the public as a whole. Approaching takings claims as a mechanism for risk spreading would also allow takings claims for government inaction when there is a duty to act for the public benefit. Tort doctrines such as negligence, nuisance, reasonableness, and intent should not be applicable to the takings analysis, which focuses on equitably spreading the benefits and burdens of acts taken for a public benefit. Insurance is also a mechanism for spreading the risk, but insurers must price their policies to incentivize property owners in disaster-prone areas to explore development alternatives, take special precautions in building, and think hard about rebuilding after a disaster. In certain situations, the government may assist landowners to voluntarily relocate by using eminent domain to buy-out risky properties. Finally, public or private entities held strictly liable for disaster damages from flooding or wildfire should be able to pass these costs on to those who have received the benefit of their actions. That is, unless the entities have been negligent in fulfilling their duties to the public. Ratepayers and taxpayers will need to bear much of the cost for receiving public benefits and utility rates and taxes should reflect the increased risk of living in disaster-prone areas. Paying for disasters in the future will not be easy, but we must face these challenges together and ensure that we are distributing the benefits and burdens of our public needs as equitably as possible.