Theorizing Damage Through Reproductive Torts

Reviewing Nicky Priaulx, "Injuries That Matter: Manufacturing Damage in Negligence"

The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons

Journal of Tort Law (De Gruyter Publishing).Appraising the Restatement (Third) of Torts: Intentional Torts to Persons.Issue Date: Vol. 10, Issue 2 (October 2017). Published online 12/12/2017.In contemporary debates about legal responsibility for sexual misconduct, the status of "affomative consent" is front and center. Most often associated with the campus rape crisis and the enforcement of Title IX by colleges and universities, affirmative consent places responsibility on individuals who initiate sex to secure the affirmative permission of their partners before engaging in sexual conduct. Going beyond "no means no," affirmative consent is best captured by the slogan "only yes means yes" and aims to protect those sexual assault victims who react passively or silently in the face of sexual aggression, even though they do not desire to have sex and would not have initiated the sexual activity if they had been given the choice. The criminal law in most states has not yet caught up with these developments and has continued to require either a showing of "force" on the part of the defendant or proof of a verbal objection on the part of the victim. Given its prominence, one might expect affirmative consent to emerge as a central issue in the revision of the Restatement (Third)’s provisions on consent. Instead, affirmative consent makes an appearance only briefly in the Restatement's commentary and has not affected the core black letter statements of the law of consent. Although purporting to be neutral, the approach of the Restatement (Third) is incompatible with affirmative consent, both in the Restatement's definitions of actual and apparent consent and in its determination to assign the burden of proof to the plaintiff instead of the defendant. Because there is no controlling precedent that would prevent the Restatement (Third) from embracing affirmative consent, the Restatement (Third) is free to follow the Title IX model and incorporate affirmative consent into the body of tort law. This article makes the case for adopting affirmative consent in sexual misconduct tort cases, even if the criminal law in any given jurisdiction continues to apply a more defendant-oriented consent rules

Removing Emotional Harm from the Core of Tort Law

Permission to reprint granted to The Ohio State University Moritz Law Library by the Vanderbilt Law Review

Jean Jew\u27s Case: Resisting Sexual Harassment in the Academy

The claim of sexual harassment is nearly twenty years old. From the first cases brought in the mid-1970s to the recurring headline-making controversies of the present-Hill/Thomas, Tailhook, Packwood -sexual harassment claims have generated heated debate about the validity of women\u27s interpretations of their experiences and the credibility of women\u27s accounts of injury. Like most legal claims, the courts have repeatedly been called upon to refine the cause of action, to resolve ambiguities in the definition of harassment and uncertainties about the limits of the law. Recently in Harris v. Forklift Systems, Inc., a unanimous United States Supreme Court reinforced the right of sexual harassment plaintiffs to bring suits not only for economic injury, but also for noneconomic injury stemming from sexually hostile or abusive working environments. The Court also clarified the elements of the abusive work environment claim, ending a divisive split in the circuits. However, I doubt whether the new Supreme Court precedent will lessen the intensity with which sexual harassment controversies are fought. Even when people agree upon basic principles, there can be sharp disagreement in concrete cases-disagreement about who is telling the truth, disagreement about who deserves to be sanctioned, and disagreement about the appropriate role of the employer in preventing or rectifying the harassment