{"title":"History, Theory, and Tort: Four Theses","authors":"John C. P. Goldberg","doi":"10.1515/jtl-2018-0007","DOIUrl":"https://doi.org/10.1515/jtl-2018-0007","url":null,"abstract":"Brian Simpson’s article arguing that the House of Lords’ 1868 decision in Rylands v. Fletcher must be understood against the backdrop of contemporaneous, catastrophic dam failures is a work of history, first and foremost. Guido Calabresi’s book arguing that the costs of accidents are most likely to be minimized if liability is assigned to cheapest cost avoiders is a work of theory, first and foremost. Both deservedly classics, they ask different kinds of questions, and analyze them using different methods. Still, the foregoing contrast is easily overstated. Without theory, history risks a descent into trivia. Part of what makes Simpson’s article worth reading 35 years after its publication is that it has a theory about Rylands, and indeed about common law adjudication. Theory without history is lacking in its own way—angels dancing on pinheads and all that. Part of what makes","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"17 - 37"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47574013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Restating the Intentional Torts to Persons: Seeing the Forest and the Trees","authors":"K. Simons, W. J. Cardi","doi":"10.1515/jtl-2018-0004","DOIUrl":"https://doi.org/10.1515/jtl-2018-0004","url":null,"abstract":"Abstract The five thoughtful, incisive articles by Professors Bernstein, Chamallas, Geistfeld, Moore, and Sugarman offer a breathtaking range of perspectives on the Restatement, Third of Torts: Intentional Torts to Persons (“ITR”). Some view tort law from the widest vantage point, inquiring whether this forest deserves its own appellation or should instead be assimilated to the rest of tort’s greenery. Some focus more on the trees–on the distinct doctrines that characterize the torts and defenses that ITR is restating. In this response, we engage with the participants at both levels. Our response also addresses two fundamental questions–the role of a Restatement and the significance of the “intentional tort” category. First, ITR is a Restatement of tort law. It is not a model code of tort law, nor is it an academic article committed to a particular vision of the proper purposes and principles of tort law. We see our task, not as creating a grand theory from which all of intentional tort doctrine can be deduced, but as a bottom-up endeavor, accurately characterizing developments in the case law and then providing the most sensible and persuasive justifications for extant doctrine. At the same time, however, we strive to provide intellectual coherence to this body of law. Thus, we examine not only the holdings in narrow doctrinal categories, but also the consistency of those holdings with more general tort law principles. Second, what is distinctive about the intentional torts to persons? How do they differ from torts of negligence or from other intentional torts? These questions have no simple answer, because most of the intentional torts to persons have very long historical roots, and because the common law process of reformulating doctrine has played a vital role in defining the scope of these torts in current American law. It is thus not at all surprising to find tensions and apparent inconsistencies between some current doctrines. Nevertheless, we believe that the contemporary formulations of these torts are indeed justifiable in principle. First, these intentional torts sometimes reflect a hierarchy of fault or culpability. Purposely injuring someone is more culpable, ceteris paribus, than negligently causing the same injury. Second, these torts sometimes protect distinct interests, such as the interest in avoiding emotional harm or in freedom of movement, that for various policy reasons are not protected by liability rules if they are only negligently invaded. Third, the intentional torts do not simply identify species of conduct that reflect greater fault or culpability than negligence. Comparing intentional torts is sometimes akin to comparing apples and oranges, because these torts protect a varied set of interests or protect them in varying ways. Fourth, the intentional torts express a pluralistic set of values and principles. No single principle (such as welfare, autonomy, or freedom) fully explains all of these torts. And fifth, althou","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"10 1","pages":"343 - 404"},"PeriodicalIF":0.0,"publicationDate":"2018-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47652675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Elephant in the Room: Sidestepping the Affirmative Consent Debate in the Restatement (Third) of Intentional Torts to Persons","authors":"Martha Chamallas","doi":"10.1515/jtl-2017-0025","DOIUrl":"https://doi.org/10.1515/jtl-2017-0025","url":null,"abstract":"Abstract 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.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"10 1","pages":"281 - 315"},"PeriodicalIF":0.0,"publicationDate":"2017-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2017-0025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42283743","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Treating Wrongs as Wrongs: An Expressive Argument for Tort Law","authors":"Scott Hershovitz","doi":"10.1515/JTL-2017-0004","DOIUrl":"https://doi.org/10.1515/JTL-2017-0004","url":null,"abstract":"Abstract The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"10 1","pages":"405 - 447"},"PeriodicalIF":0.0,"publicationDate":"2017-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/JTL-2017-0004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44835136","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Restating the Tort of Battery","authors":"S. Sugarman","doi":"10.1515/jtl-2017-0020","DOIUrl":"https://doi.org/10.1515/jtl-2017-0020","url":null,"abstract":"Abstract This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would (a) do away with complex and unneeded doctrinal details now contained within battery law, (b) pave the way to a sensible regime of comparative fault for all such physical injuries, (c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, (d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and (e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"10 1","pages":"197 - 236"},"PeriodicalIF":0.0,"publicationDate":"2017-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41533616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Conceptualizing the Intentional Torts","authors":"Mark A. Geistfeld","doi":"10.1515/jtl-2017-0024","DOIUrl":"https://doi.org/10.1515/jtl-2017-0024","url":null,"abstract":"Abstract According to the most recent draft of the Restatement (Third) of Torts: Intentional Torts to Persons, the intentional torts protect the rightholder’s interests differently from negligence-based rules and strict liability, placing them into a distinct substantive category. This conceptualization, however, does not provide courts with adequate guidance on how to formulate the element of intent. Different formulations can protect the rightholder’s interests differently from negligence and strict liability, so something else must determine the appropriate way to formulate the element of intent. The draft Restatement’s reasoning can be easily extended to provide a more useful conceptualization of the intentional torts. The practice of tort law involves the enforcement of behavioral norms, and so the substantive categories of tort law should correspond to normatively distinguishable categories of behavior. For tort purposes, three different paradigmatic forms of social behavior are relevant: aggressive interactions; interactions of mutual advantage; and the remaining nonaggressive, risk-creating interactions that are not motivated by an expectation of mutual benefit. Within this normative framework, the category of intentional torts is defined by aggressive interactions, which involve intentional harms that are normatively different from accidental harms. The intentional torts accordingly protect different interests in a distinctive manner as per the rationale in the draft Restatement. This normative framework straightforwardly explains a number of established rules while also resolving two questions of intent that have vexed courts and commentators. Difficult issues of intent involve hard questions about how the conduct is best categorized for tort purposes. Once the categories have been conceptualized in behavioral terms, the element of intent has a clear substantive purpose: it determines whether or not an interaction is aggressive and properly governed by the intentional torts.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"10 1","pages":"159 - 196"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2017-0024","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47818145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Addendum to Prosser and His Influence","authors":"K. Abraham, G. White","doi":"10.1515/JTL-2015-0014","DOIUrl":"https://doi.org/10.1515/JTL-2015-0014","url":null,"abstract":"In our article “Prosser and His Influence,” we stated that William Prosser “accepted a visiting offer” from Harvard Law School for the 1947–1948 academic year,” and also stated that when “Prosser visited Harvard he was clearly a candidate for a permanent position.” It turns out that Prosser was more than a candidate for a permanent position on the Harvard faculty; he had already been given a permanent offer. We found this information out in a way that may be of some interest. Recently a trove of letters written by Prosser was given to the University of California at Berkeley School of Law. Professor Christopher Robinette, who is preparing an article on Prosser, learned about the letters, looked at them, and told us about a 1952 letter Prosser had written to the President of the University of California, Robert Sproul, in which Prosser said that he had “walked out” of a permanent position at Harvard to take the deanship at Berkeley Law. Prosser added that he was only the third person in the history of Harvard Law School to leave after having been given a permanent appointment. We were skeptical about Prosser’s candor in the letter, and decided to see if the Harvard Law School archives might have information on the matter. We subsequently were granted permission to have Professor Andrew Kaufman of the Harvard law faculty look at the faculty minutes for the 1947 and 1948 calendar years. Professor Kaufman found that on January 28, 1947, Dean Erwin Griswold reported that the Appointments Committee had recommended an offer to Prosser, and the offer contemplated a permanent appointment. The faculty approved the recommendation. The minutes also indicated that in June 1948, Griswold referred to a vacancy created by Prosser’s resignation. Finally, the minutes indicated that during the 1947–1948 academic year, when Prosser was teaching full-time on the Harvard faculty, he attended only one faculty meeting.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"8 1","pages":"1 - 1"},"PeriodicalIF":0.0,"publicationDate":"2017-08-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/JTL-2015-0014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41618690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The MacPherson-Henningsen Puzzle","authors":"Victor P. Goldberg","doi":"10.2139/SSRN.3022224","DOIUrl":"https://doi.org/10.2139/SSRN.3022224","url":null,"abstract":"Abstract In the landmark case of MacPherson v. Buick, an automobilecompany was held liable for negligence notwithstanding a lack of privity withthe injured driver. Four decades later, in Henningsenv. Bloomfield Motors, the court held unconscionable the standard automobilecompany warranty which limited its responsibility to repair and replacement,even in a case involving physical injury. This suggests a puzzle: if it were soeasy for firms to contract out of liability, did MacPherson accomplish anything?","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"145 - 156"},"PeriodicalIF":0.0,"publicationDate":"2017-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47052108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
求助内容：
应助结果提醒方式：
京公网安备 11010802042870号
