Tort Theory Research Articles

Tort Law and Contractualism

How can tort law be justified? There are well-known difficulties with the three traditional theories of tort law dominating the literature (namely, economic theory, corrective justice theory, and civil recourse theory). Recently, some have turned to moral contractualism in search of tort law’s foundation. One of the most prominent attempts was made by Gregory Keating. Keating’s account, however, has been subjected to powerful objections. In a recent paper, John Oberdiek, through a sympathetic critique of Keating’s account, develops a new version of contractualist tort theory that is alleged to be at once superior to the three traditional theories of tort law and immune to the objections to Keating’s account. The aim of my paper is to critically assess Oberdiek’s account; I will argue that, while Oberdiek’s account does improve upon Keating’s in some important respects, it is ultimately unsatisfactory.

The Idea of Obligation in Polish Law

In Western legal tradition jurisdictions, the transition from the Roman idea of obligatio to the doctrine of the legally binding relationship was not a universal process. Anglo-Saxon lawyers discuss contract and tort theories separately. Different doctrines have emerged from the development of the theory of the legally binding relationship in the Civil Law Tradition. This article shows how this process has played out in the Polish legal discussion. The specific premises of the Polish legal experience were that applied Roman law had little influence in Poland until the end of the 18th century, Austrian law served as the foundation for the development of the Polish doctrine of the legally binding relationship, the Polish Code of Obligations of 1933 replaced French, Austrian, German and Russian law on Polish territories, and the development of the Polish theory of private law after WWII was influenced by the dominance of Marxist theory. Consequently, the Polish legal experience provides a particular perspective on the premises supporting or blocking the relationship between the doctrine of legally binding relationships and social reality.

Liking the Intrusion Analysis in In Re Facebook

Abstract In re Facebook preserved a class action brought against Facebook based on its mass collection of web browsing data. Although the plaintiffs brought several common law and statutory causes of action, I will focus on the court’s analysis of intrusion upon seclusion. This is where the case makes its greatest contribution to 21st century jurisprudence. It clears up several puzzles that had troubled the tort (and indeed my own thinking) to the great benefit of tort theory and the progress of privacy law.

Administrative Delicts Referred to the Court Jurisdiction

In accordance with the key provisions of Part 2 of Article 118 of the Constitution of the Russian Federation and the analysis of the current administrative and administrative procedural legislation of the Russian Federation, the need for the development of the theory of economic and non-economic administrative torts (administratively punishable and administratively enforced offenses) attributed to the competence of courts of general jurisdiction, arbitration courts and the Supreme Court is justified Of the Russian Federation. Based on the analysis of the norms of the Administrative Code of the Russian Federation, the laws of the subjects of the Russian Federation on administrative offenses, the Agro-industrial Complex of the Russian Federation, the CAS of the Russian Federation, as well as other federal laws regulating control and supervisory activities and the grounds for applying public administration bodies to the court for the application of judicial measures of administrative coercion for committed offenses, a scientifically based classification of administrative torts attributed to special categories such as “economic administratively-punishable tort attributed to the competence of courts”, “economic administratively-enforced tort attributed to the competence of courts”, “noneconomic administratively-punishable tort attributed to the competence of courts”, “non-economic administrativelyenforced tort attributed to the competence of courts”, “non-economic administratively-enforced tort attributed to the competence of the courts”, “economic administratively punishable tort referred to the competence of courts”, “economic administratively enforced tort referred to the competence of courts”, “non-economic administratively punishable tort referred to the competence of courts”, “non-economic administratively enforced tort referred to the competence of courts”. In order to further improve the administrative and administrative procedural legislation of the Russian Federation, a proposal is put forward to develop criteria for the distribution of jurisdiction according to the composition of economic and non-economic administrative torts, as well as to amend the Administrative Code of the Russian Federation, the CAS of the Russian Federation and the Agro-Industrial Complex of the Russian Federation.

Tort Theory and the Restatement, in Retrospect

Tort Theory and the Restatement, in Retrospect

Commentary: Standard of Care During a Crisis: What Should a Surgeon Know (and Do)?

Commentary: Standard of Care During a Crisis: What Should a Surgeon Know (and Do)?

Form and Function in Tort Theory

Abstract Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.

A Simple Model of Torts and Moral Wrongs

According to the “standard model” of torts and moral wrongs—the model implicit in leading moral theories of tort law—tort law imposes genuine duties that are distinct from, and only roughly coincide with, our preexisting moral duties. A “tort,” on this model, is a distinctive kind of wrong—the breach of a tort-generated duty. In this Article, I argue that moral theories of tort law should tell a simpler story—one that dispenses with the domain of distinct, tort-generated duties. According to what I call the “simple model” of torts and moral wrongs, tort law aims to recognize and respond directly to moral wrongs. Because tort law recognizes only certain moral wrongs, however, and then only in a coarse-grained, institutional way, tort law understandably diverges from other forms of moral assessment and accountability. All the same, a “tort” is simply a moral wrong in which tort law takes a distinctive kind of interest, on this model, not a distinctive kind of wrong. I aim to show that the simple model provides a more natural and illuminating way to think about the relationship between tort law and interpersonal morality. And I argue that the model can fit and explain the law that we have, contrary to what some have supposed. Along the way, I seek to illustrate that the simple model has important implications for tort theory, and inescapable practical significance too.

History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory

History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory

The Inward Turn and the Future of Tort Theory

Abstract The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to predict where it may go. We contend that tort theory has experienced two different eras, and that it may well be about to enter a third. In the first era, spanning roughly the first three-quarters of the twentieth century, tort theory faced outward to the world, focusing on issues affecting redress for civil injuries that were being decided in the courts and emerging in American society at large. In the second era, roughly the last 30 to 40 years, tort theory turned inward and focused mostly on itself. The tort theory that has been done during this second era, valuable though it has been, may well have borne most of its scholarly fruit. We may therefore be ready to move into a third era, in which tort theory turns outward again and becomes occupied with the cutting-edge issues of tort law policy and principle that will be generated as the twenty-first century progresses. This Essay chronicles the first era, in which tort theory faced outward, the second era, in which tort theory turned inward, and identifies three issues that we believe may be on the tort theory agenda, when and if tort theory turns outward again. These involve the coordination and systematization of tort with other sources of regulation and compensation; redressing data theft and digital invasions of privacy; and heightened sensitivity to harm associated with sex, gender, and race-related misconduct.

Tort Theory and Restatements: Of Immanence and Lizard Lips

Abstract This Essay gingerly enters the tort theory “wars” that torts scholars have been debating for many decades. Is the essence of tort law instrumentalism in some form, including most notably in providing appropriate incentives to minimize the costs of accidents, as Guido Calabresi normatively proposed and William Landes and Richard Posner descriptively claimed? Or, on the other hand, is tort law simply about the injurer and victim and the just manner for allocating the victim’s loss—blind to any collateral consequences? We address these debates from our perspective as Restatement Reporters, honing in on the question of what role tort theory plays in our work. Our answer is virtually none. There are two independent and sufficient reasons for this conclusion. First, we are deeply skeptical that there is an immanent meta-theory that explains tort law or guides its development. Instead, we think tort law is a hodgepodge, influenced by public policy, culture, administrative concerns, evidentiary lacunae, technological developments, and random events. These eclectic and shifting forces influence what tort law is and how it evolves with the felt needs of any given era. Tort law, in short, is built from the bottom up, not the top down and is far too messy to be the product of intelligent design. Beyond that, even if there were such a force at tort law’s heart, that force would still have little influence on our work. The doctrinal level at which Restatements operate and the case law that fuels the production of Restatements—ground level law—is a disjunction from theory, which operates at 30,000 feet. This disjunction means that the latter is of little assistance when it comes to addressing the quotidian matters important to tort law and Restatements. Whether tort law is entirely instrumental or solely about corrective justice cannot answer the question of whether parents should have immunity from tort suits by their children. The answer to that question must be found in the case law, not in Kant.

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.

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).

The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance

Abstract Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective justice and later under civil recourse. The success of civil recourse depends in part on its ability to explain emerging areas of focus in tort law. One such area is public nuisance, which, despite some setbacks, is viewed by the plaintiffs bar, state actors, and some members of the academy as an effective tool to address significant social problems, such as the opioid crisis. This article asks whether, and how, civil recourse theory can accommodate modern public nuisance law.

Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8

Abstract Late twentieth-century tort theory was dominated by scholars who regarded tort law as primarily a means employed by government to deter anti-social conduct. On this model, tort plaintiffs are cast as private attorneys general whose lawsuits promote safety. Tort theorists today better appreciate that this approach obscures crucial respects in which tort law is private law–law that empowers persons who have been wronged to redress the wrongs done to them. But in practice there is a continued failure to perceive the ways in which the deterrence model has shaped and distorted views of tort law, as evidenced by the terms on which both the ‘right’ and the ‘left’ critique modern mass tort litigation. More troublingly, the problem extends beyond the field of torts. Indeed, we contend that the lawyerly loss of feel for distinctions between public law and private law explains the inability of the United States Supreme Court Justices, in Whole Woman’s Health v. Jackson, to capture why S.B. 8–Texas’s radical anti-abortion statute–really is a private attorney general statute and why, as such, it should be subject to preenforcement constitutional review.

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.

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.

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE KELLY AND POSTLE DECISIONS

SHOULD CALIFORNIA'S PUBLIC POLICY ON JUDICIAL NON-JURISDICTION OVER GAMBLING DEBTS BE REVISITED? BREAKING DOWN THE <i>KELLY</i> AND <i>POSTLE</i> DECISIONS

Form and Substance in the “Private Law” of Torts

Abstract Instrumentalist ideas have long been prominent in torts scholarship. Since the rise of legal realism, discussions of deterrence, compensation, the minimization of accident costs, and the distribution of losses have dominated scholarly discourse. In the past several decades, however, wholesale rejections of instrumentalist tort theory have arisen. The most uncompromising of these views rallies around the avowedly formalist battle cry that tort is “private law”. Ernest Weinrib’s elegant and influential book, The Idea of Private Law, declares its allegiance to that thesis in its title, and the idea figures almost as centrally in Arthur Ripstein’s recent and important Private Wrongs. Theorists who rally around the banner of “private law” claim that tort law’s governing principles of right and responsibility tumble out of the field’s characteristic legal form. Law, as they understand it, is constitutive of just relations among persons, not an instrument for the pursuit of independently valuable ends. For scholars like Weinrib and Ripstein, “private law” is the Kantian idea of reason that makes our actual law of torts intelligible. The claim that torts is a law of wrongs where persons bring claims in their own names for harms that they have wrongly suffered against those allegedly responsible for those wrongful harms is powerful and persuasive. The claim that the obligations persons owe one another in tort are obligations owed among equal and independent persons is likewise compelling. But theorists of tort as “private law” overshoot the mark by both asking and making too much of form. They ask too much of form when they attempt to make sense of the private law of torts solely in terms of form—eschewing all talk of interests. We cannot understand or justify the law of torts without attending to the interests that it protects. In tort, as elsewhere, rights and the duties they ground protect important individual interests. For example, it is our interest in the physical integrity of our persons that grounds the law of negligence. Theorist of tort as “private law” make too much of form when they present the legal category as its own private fiefdom walled off from surrounding legal fields. For Ripstein and Weinrib, “private law” is its own autonomous domain, sealed off against infection by any legal field whose form identifies it as “public law”. In our law, the private law of torts cooperates and competes with public law institutions as a response to the pervasiveness of accidental harm in an industrial and technological society. It is one way of institutionalizing our interest in safety. Establishing rightful relations among free and equal persons in civil society requires that institutions protect persons’ urgent interests, not just establish their formal independence. The theoretical understanding that we need will recognize that we misunderstand even the private law of torts itself if we sever it entirely from forms of collective responsibility for avoiding and repairing accidental harm with which it competes and cooperates.

Y Sinai/B Shmueli, Maimonides and Contemporary Tort Theory (Cambridge University Press 2020) xiii + 414 pp. ISBN 9781107179295. £ 95 (hardback)

Article Y Sinai/B Shmueli, Maimonides and Contemporary Tort Theory (Cambridge University Press 2020) xiii + 414 pp. ISBN 9781107179295. £ 95 (hardback) was published on December 20, 2020 in the journal Journal of European Tort Law (volume 11, issue 3).