A Broader View of the Cathedral: The Significance of the Liability Rule, Correcting a Misapprehension

Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice—the right of an injured party to be made whole—or of redress for civil wrongs—the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal–political–economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J. Blum and Harry Kalven’s answer to it, aptly titled Public Law Perspectives on a Private Law Problem. It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today

Intra-Family Torts: From Immunity to Special Rules in Criminal and Civil Law

Intra-Family Torts: From Immunity to Special Rules in Criminal and Civil La

Ethics and the Settlement of Mass Torts: When the Rules Meet the Road

The settlement of mass torts through the class action device presents some difficult and troubling issues, including important questions of due process, fairness, justice, efficiency, equality, equity, and ethics. In this context, some of these foundational values conflict with each other and must be resolved by judges who must decide actual cases. In analyzing the applicable laws and rules (class action rules, constitutional provisions, and ethics rules) we find answers or suggestions that are often ambiguous or contradictory. All of these unresolved ambiguities raise the question of whether mass torts are any different from any number of difficult cases our legal system faces. I do think that mass torts present us with some novel issues that question the transsubstantivity of our laws and rules. While others in this symposium focus on the procedural and substantive issues raised by such cases, I will focus on the ethics of such settlements in two senses: First, at the level of professional ethics, I will examine what is ethically permissible behavior in the way in which such settlements are arranged. Second, at the higher, broader level of ethics, I will examine the nature of an ethically just or fair settlement. Although lawyer ethics are only part of the larger considerations of what makes a settlement ethical, the professional responsibility questions raised in recent mass torts cases reveal a bigger problem for legal ethics generally. This problem involves situations where rules are so ambiguous or self-contradictory that they cannot govern behavior clearly

Tort Liabilities and Torts Law: The New Frontier of Chinese Legal Horizon

China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effective as of July 1, 2010, forms a comprehensive framework that regulates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law. The Torts Law premises torts on the fault liability with a few exceptions where the non-fault liability is imposed. Structurally, the Torts Law is distinctive in that it stresses principles and rules of general application, and in the meantime prescribes peculiar tortfeasors and special torts that need to be dealt with differently. In substance, the Torts Law is ambitious because it intends to embrace not only traditional torts but also the newly developed area of torts. In many aspects, the Torts Law is also keen to maintain the Chinese characteristics. Still, there is a substantial gap between the law on the paper and the law in action. Many ambiguities exist, which require both legislative and judicial interpretations. In addition, many unsolved issues may become obstacles to the application of Torts Law. More significantly, Torts Law enforcement remains a major challenge to the Chi- nese legal system in general and to the Chinese judiciary in particular

Torts and the Protection of "Legally Recognized" Interests

The law of torts plays an important role in completing the legal property rights system by defining the extent to which property is protected from harm. It does this by defining the kinds of interests that will be recognized and protected from harm by the courts, the duty of care owed these recognized interests by others, and the manner in which they will be protected through monetary compensation, restitution, or injunction. Together, these three elements of torts define a right in the “bundle of rights” that constitute property. In this paper, we develop a systematic approach to formalizing the nature of the property rights protected by tort law. We use this approach to reexamine the literature on compensation for nonpecuniary damages. This reexamination demonstrates how recognizing tort’s role in defining property rights and having a way of formalizing these rights can provide deeper insight into old questions torts scholarship.torts, property rights, liability, compensation, damages, insurance

How to Include Issues of Race and Racism in the 1-L Torts Course: A Call for Reform

Race and racism have always played a significant role in the U.S. tort system as research has long shown and as hundreds of published decisions demonstrate. Do torts casebooks reflect the importance of race and racism in torts? The article first surveys 23 torts casebooks published from 2016 to 2021 to see whether and to what extent they discuss race and racism. Most avoid discussions of race and racism in torts; and although they always discuss tort history, they omit the racial history of torts. Although publishers frequently issue new editions of torts casebooks, newer editions generally have not expanded their focus to include race and racism. Two notable exceptions are the new open source casebook, TORTS: A 21ST CENTURY APPROACH, by Prof. Zahr Said, and TORT LAW AND PRACTICE by Prof. Dominick Vetri and co-authors. Following the casebook survey, the article turns to this question: How can professors incorporate issues of race and racism in their torts courses? I recommend that law teachers incorporate issues of race and racism in first year torts courses in two major ways. First, law professors should teach a number of pedagogically interesting cases that deal with race and racism and that also illuminate significant doctrinal issues. This article suggests specific cases keyed to most of the important doctrinal areas in torts. These cases are less known than cases that are commonly taught, but they are also important and can convey the relevant doctrinal points equally well. Second, law professors in teaching damages should include material on the devaluation of injuries to African-Americans in torts. Important background also includes information about the unequal distribution of liability insurance – a key part of the torts system – by race. Since torts is a required first year course, and race and racism have had a significant role in the U.S. torts system, law students should gain at least a general understanding of race and racism’s role in torts. Including race and racism in torts courses strengthens the first year curriculum. While this may seem daunting for some instructors, ample materials now on offer make it very feasible. The time is certainly ripe for this essential change

The Case for a Feminist Torts Casebook

Professor Leslie Bender\u27s recent essay, An Overview of Feminist Torts Scholarship, contributes substantially to the construction of feminist perspectives on tort law. She carefully and comprehensively surveys burgeoning feminist scholarship in the field of torts. Professor Bender closely examines feminist histories of substantive tort law, the application of feminist theory to tort doctrine, to tort law concepts, and to the teaching of torts, tort issues that are important to women\u27s lives, social science research involving feminism and torts, book reviews that are relevant to feminist tort law, and overviews of material that implicate feminist viewpoints of torts. After Professor Bender persuasively demonstrates the breadth and depth of feminist scholarship in the torts area, she recognizes that considerable work remains to be undertaken and concludes with a call for feminist torts scholars to redouble their efforts