Journal of Tort Law最新文献

{"title":"Evaluating Credibility of Witnesses – are We Instructing Jurors on Invalid Factors?","authors":"A. Vrij, J. Turgeon","doi":"10.1515/jtl-2018-0013","DOIUrl":"https://doi.org/10.1515/jtl-2018-0013","url":null,"abstract":"Co-author Aldert Vrij, Ph.D., an internationally respected expert on evaluating credibility and the European Consortium of Psychological Research on Deception Detection’s contact person, presented an educational lecture program concerning the fallacy of considering nonverbal behavior to evaluate credibility at the 2016 Pennsylvania Conference of State Trial Judges. Many of the judges listening to Dr Vrij, wondered why then, do judges consistently instruct jurors to consider demeanor and other nonverbal behaviors to evaluate witnesses’ credibility? Why do we ignore the overwhelming scientific evidence and continue to give jury instructions contrary to the overwhelming consensus that witness demeanor is not a basis to determine the accuracy or truthfulness of their testimony? Many years ago, co-author Jeannine Turgeon attended United States Supreme Court Justice Sandra Day O’Connor’s lecture “Trial by Jury–In Need of Repair” at The Chautauqua Institute. Justice O’Connor criticized various aspects of our current jury system and offered suggestions for its improvement. She opined that “[j]ust because something has ‘always been done’ a particular way does not mean that is the best way to do it. If common sense tells us to change something, we should change it.”","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"231 - 244"},"PeriodicalIF":0.0,"publicationDate":"2018-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43345756","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":"Editor’s Introduction","authors":"C. Robinette","doi":"10.1515/jtl-2018-0014","DOIUrl":"https://doi.org/10.1515/jtl-2018-0014","url":null,"abstract":"Over the dozen years of its existence, the Journal has published articles written almost exclusively by academics. For this year’s symposium, we wanted to hear the perspective of judges, those who have both the privilege and the burden of deciding torts cases. We offered the judges we contacted—state and federal, trial and appellate, inside and outside the United States—carte blanche to write about any tort-related issue they found compelling. We are delighted with the results. In his contribution, Judge Guido Calabresi, of the Second Circuit Court of Appeals, discusses multiple doctrinal observations he has made in twenty-four years on the bench. He notes the importance of torts reasoning to other areas of the law such as Title VII and Section 1983, the growing significance of federal preemption, the importance of judicial lawmaking to the parties to a tort suit, and the significance of causation to multiple areas of the law (and how that may affect our understanding of tort causation). Judge Calabresi, a former law professor and dean, also contrasts the roles of judge and scholar. A judge must be prudent and cautious; the judgemust “apply the law and abjure political biases, but also to make rulings that work. We are very reluctant to follow wonderful, new, and seemingly correct theories or views of the truth when they carry with them significant dangers.” Scholars have a different role: “As scholars, our role is to tell and write the truth as we have come to see it, fully and courageously, though the heavens fall.” Justice Peter Applegarth sits on the Supreme Court of Queensland, Australia, but also has experience as a trial judge. Justice Applegarth’s piece focuses on the idea that, in both novel and routine cases, judges often weigh policy considerations based on common sense assumptions and personal experience about how certain individuals, groups and institutions behave. For example, in assessing the consequences of creating a new category of duty of care, a new immunity from suit or even a new tort, judges are invited to predict (or speculate about) how individuals, groups, professions and institutions would behave if the law was different. In routine cases, judges also rely on assumptions and experience in deciding questions of reasonableness","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"157 - 159"},"PeriodicalIF":0.0,"publicationDate":"2018-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0014","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47863225","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":"“Mending Wall” and Negligence: How a Poem can Inform the Common Law","authors":"Samuel A. Thumma","doi":"10.1515/jtl-2018-0012","DOIUrl":"https://doi.org/10.1515/jtl-2018-0012","url":null,"abstract":"Abstract Using selected lines from Robert Frost’s poem Mending Wall, this essay seeks to show how the poem can inform the common law of negligence. Best known for its line “good fences make good neighbors,” Mending Wall involves a narrator recounting his relationship with a neighbor, and the neighbor’s calm persistence that a good boundary wall makes good neighbors. The poem describes how and why, each spring, they walk together to fix a rock wall that is the common boundary of their property. This essay seeks to make the case for how Mending Wall also can inform the common law of negligence. After a discussion of how the author came to write the piece, the essay briefly discusses the context for, and some commentary about, Mending Wall, with the poem included in the Appendix. The essay then provides seven examples of how selected lines from Mending Wall can inform the common law of negligence. Starting with the adage that good fences make good neighbors, the examples help demonstrate when a legal fence needs to be solid and unyielding in delineating the elements of a prima facie negligence claim; when a fence provides an outer boundary for a negligence claim and when a fence is a boundary excluding a negligence claim; when a fence is not needed to define the boundary between types of remedies; how a fence implies a division of labor in what a judge decides and what a jury decides; that the outlier case can try to pull down a fence and, finally, how gaps in a fence are the grist for the mill that is the common law. The essay seeks to show that Mending Wall can be used to help inform the common law of negligence, in certain respects when viewed in a certain way. It does so, the essay suggests, episodically. It provides glimpses and clues, not comprehensive directives, and offers general targets to focus on in the study of common law negligence. Viewed in a concrete way, Mending Wall is about neighbors fixing a stone wall they share on a cold, early spring day. But it is much more than that. In these ways, as the essay suggests, Mending Wall can inform the common law of negligence.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"209 - 230"},"PeriodicalIF":0.0,"publicationDate":"2018-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48095827","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":"Reflections of a Torts Teacher on the Bench","authors":"G. Calabresi","doi":"10.1515/JTL-2018-0010","DOIUrl":"https://doi.org/10.1515/JTL-2018-0010","url":null,"abstract":"Abstract I have been a judge for twenty-four years and have taught Torts for sixty years. What has all that taught me about Torts, about federal-state relations in this field, and about judges and judging? The first thing I learned is how important Torts and Torts reasoning are in many areas that we don’t think of as being traditionally Torts. The second thing I have come to realize is how significant federal preemption has become to the field. The third thing I have come to understand is why judges and judicial lawmaking are particularly important in Torts: the people who are active in pushing and resisting Torts “reforms” before legislatures are bound to be repeat players; courts, instead, are invoked by non-repeat parties. My fourth realization upon becoming a judge is a completely different one: there are situations in traditional Torts-negligence law that seem sufficiently rare to require little attention but are, in fact, central to areas of law that a federal judge sees all the time. My fifth point has to do with how little federal judges in general, and federal appellate judges in particular, know or understand about Tort law. My last reflections go to something of a totally other sort. And that is the difference I have come to see in the roles of scholars and of judges. It is often said of judges that they should “do justice though the heavens fall.” That is, of course, nonsense. A judge who truly risked causing the heavens to fall would be thrown off the bench in no time. The role of scholars is quite different. As scholars, our role is to tell and write the truth as we have come to see it, fully and courageously, though the heavens fall. Our job is to look in dark places, shine light on what we believe is really going on, and reveal what is actually occurring in the face of the human subterfuges and legal fictions that obscure the truth.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"161 - 172"},"PeriodicalIF":0.0,"publicationDate":"2018-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/JTL-2018-0010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42767739","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":"A Lost Search for a Generic Tort Action Protecting “Peace of Mind”","authors":"G. White","doi":"10.1515/jtl-2018-0005","DOIUrl":"https://doi.org/10.1515/jtl-2018-0005","url":null,"abstract":"Abstract I plan to spend most of my time today setting forth the details of an episode in the mid twentieth-century history of American tort law, from which I intend to draw some observations on the place of history in tort law, or, put more precisely, the relationship between tort law and its surrounding cultural contexts, which amount to, when one has some distance from those contexts, its history. But before getting to that episode, I want to state, in general terms, what I take the relationship of tort law to its history to be. I don’t think tort law is any different from any other field of law, private or public, in its relationship to history. I’ve completed two books in a series called Law in American History, and am in the process of writing a third. The coverage of those works ranges from the colonial years through the twentieth century, and I take up fields in both public and private law, including torts. Throughout the books my theory of the relationship of law to its “history”–its surrounding contexts–is that the relationship is reciprocal. Law, at any point in time, is both affected by developments in the larger culture and affects them.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"16 - 5"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41374572","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":"Symposium Issue: Appraising the Restatement (Third) of Torts: Intentional Torts to Persons","authors":"C. Robinette","doi":"10.1515/jtl-2018-0002","DOIUrl":"https://doi.org/10.1515/jtl-2018-0002","url":null,"abstract":"","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"10 1","pages":"155 - 157"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45158976","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":"Foreword: The Role of History in Tort Theory","authors":"C. Robinette","doi":"10.1515/jtl-2018-0009","DOIUrl":"https://doi.org/10.1515/jtl-2018-0009","url":null,"abstract":"Claims about the nature of tort law are often coupled with historical claims. Thus, many mid-twentieth century proponents of an expansive, compensationoriented tort law argued strict liability was prevalent under the common law writ system. What is the purpose of such appeals to history? Are they necessary to tort theory, or merely tangential? Does the importance of history depend on whether the theory is descriptive or normative? In January 2018, at the Association of American Law Schools annual meeting in San Diego, California, the AALS Section on Torts and Compensation Systems convened a panel on The Role of History in Tort Theory. The participants were – Martha Chamallas, Robert J. Lynn Chair in Law at The Ohio State University Moritz College of Law; – Donald G. Gifford, Jacob A. France Professor of Torts at the University of Maryland Francis King Carey School of Law; – John C.P. Goldberg, Deputy Dean and Carter Professor of General Jurisprudence at Harvard Law School; – G. Edward White, David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"1 - 4"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45288689","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":"Technological Triggers to Tort Revolutions: Steam Locomotives, Autonomous Vehicles, and Accident Compensation","authors":"Donald G. Gifford","doi":"10.1515/jtl-2017-0029","DOIUrl":"https://doi.org/10.1515/jtl-2017-0029","url":null,"abstract":"Abstract Waves of technological change explain the most important transformations of American tort law. In this Article, I begin by examining historical instances of this linkage. Following the Industrial Revolution, for example, machines, no longer humans and animals, powered production. With greater force, locomotives and other machines inflicted far more severe injuries. These dramatic technological changes prompted the replacement of the preexisting strict liability tort standard with the negligence regime. Similarly, later technological changes caused the enactment of workers’ compensation statutes, the implementation of automobile no-fault systems in some states and routinized automobile settlement practices in others that resemble a no-fault system, and the adoption of “strict” products liability. From this history, I derive a model explaining how technological innovation alters (1) the frequency of personal injuries, (2) the severity of such injuries, (3) the difficulty of proving claims, and (4) the new technology’s social utility. These four factors together determine the choice among three liability standards: strict liability, negligence, and no-fault liability with limited damages. I then apply this model to the looming technological revolution in which autonomous vehicles, robots, and other Artificial Intelligence machines will replace human decision-making as well as human force. I conclude that the liability system governing autonomous vehicles is likely to be one similar to the workers’ compensation system in which the victim is relieved of the requirement of proving which party acted tortiously and caused the accident.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"143 - 71"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2017-0029","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47764975","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":"Will Tort Law Have its #MeToo Moment?","authors":"Martha Chamallas","doi":"10.2139/SSRN.3243841","DOIUrl":"https://doi.org/10.2139/SSRN.3243841","url":null,"abstract":"Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"39-70"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49442435","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":"Will Tort Law Have Its #Me Too Moment?","authors":"Martha Chamallas","doi":"10.1515/jtl-2018-0008","DOIUrl":"https://doi.org/10.1515/jtl-2018-0008","url":null,"abstract":"Abstract Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.","PeriodicalId":39054,"journal":{"name":"Journal of Tort Law","volume":"11 1","pages":"39 - 70"},"PeriodicalIF":0.0,"publicationDate":"2018-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/jtl-2018-0008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42507416","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}