In Praise of the Treatise Writer: Law\u27s Special Knowledge

Dobbs, the author of the foremost treatise on tort law, and Hayden, the author of a number of thought provoking articles, have written a book with a clear structure—one that carefully and methodically elucidates the doctrinal framework of state tort law. The book also addresses problems in tort theory and practice and outlines major supplements and alternatives to existing tort remedies

In Praise of the Treatise Writer: Law\u27s Special Knowledge

Dobbs, the author of the foremost treatise on tort law, and Hayden, the author of a number of thought provoking articles, have written a book with a clear structure—one that carefully and methodically elucidates the doctrinal framework of state tort law. The book also addresses problems in tort theory and practice and outlines major supplements and alternatives to existing tort remedies

Comparative Fault to the Limits

Comparative-fault defenses rarely attract much public attention. However, a recent lawsuit highlighted the subject. In a suit filed against the archdiocese of Boston stemming from an ongoing sexual abuse scandal, Cardinal Bernard Law asserted that a boy who had been abused by a priest from the time that he was six years old to the time that he was thirteen years old was himself guilty of comparative fault. The defense became the subject of immediate public scrutiny. Commentators described the defense with adjectives ranging from reprehensible, appalling, and not sensitive, to legalese, boilerplate, standard, and even necessary.\u27 The Cardinal\u27s defense, and the accompanying public reaction, brings an important legal question to the fore-after states\u27 widespread adoption of comparative fault and comparative apportionment, when should courts consider barring a comparative- fault defense altogether? This question about appropriate judicial limits on comparative- fault defenses is particularly timely in light of the proposed Restatement Third of Torts: Liability for Physical Harm. The Restatement, which places jury risk-utility analyses at the center of tort decisionmaking in both negligence and comparative negligence, has revitalized debate about the appropriate scope of and limits on jury risk-utility analyses in tort law. Given the recent shift of states from all-or-nothing contributory-negligence defenses to evaluations of incremental comparative fault and responsibility, it might be argued that courts should never bar comparative-fault defenses. Comparative fault not only weakens traditional justifications for withholding questions of defendant and plaintiff negligence from juries, but was arguably meant to do so

Tort Liability for Physical Harm to Police Arising From Protest: Common-Law Principles for a Politicized World

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters.In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues