Copyright (c) 2007 Berkeley Electronic Press All rights reserved. http://www.bepress.com/jtl Recent documents in Journal of Tort Law en-us Wed, 31 Oct 2007 15:40:29 PDT 3600 http://www.bepress.com/jtl/vol1/iss3/art6 http://www.bepress.com/jtl/vol1/iss3/art6 Wed, 17 Oct 2007 17:12:35 PDT In this article I argue that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. Specifically, I examine the practical value to practitioners and judges in the court of final appeal in an English-speaking jurisdiction of paying attention to how tort issues are analysed in a different jurisdiction when the subject matter of the domestic case at hand does not positively require it. Part I argues that the benefits of resorting to ``comparative tort reasoning" vary greatly according to the focus of the legal analysis in issue: outcomes, arguments, principle, or conceptual arrangement; and that by far the potential for enrichment is greatest in the context of comparative tort argumentation. Part II addresses the study of law across not just jurisdictional but language barriers: ``comparative foreign-language law." My argument here is that the practitioner and judge in an English-speaking jurisdiction should exercise extreme caution in using comparative materials from foreign language systems. Part III considers ``coordinated" tort materials: materials that seek to expound tort law across multiple intra-national tort jurisdictions, such as restatements of law by the American Law Institute, or across multiple national tort jurisdictions such as Helmut Koziol's ``Principles of European Tort Law" published in 2005. Jane Stapleton Tort Law Comparative Law Restatement Unification http://www.bepress.com/jtl/vol1/iss3/art3 http://www.bepress.com/jtl/vol1/iss3/art3 Wed, 17 Oct 2007 17:11:36 PDT This paper considers the state of our knowledge about the process of defending tort claims. A variety of specific topics are covered including relationships among the key actors on the defense side (alleged tortfeasor, insurer, and defense lawyer); the incentives faced by these actors; the resolutions of issues of liability, causation, and damages; different types of claimants; variations among tortfeasors and their insurers; conflicts on the defense side; staff lawyers and in-house counsel; the problem of defending sure losers; and the use of experts by the defense. A brief appendix presents some data on the sociology of defense practice (i.e., the characteristics of lawyers who describe themselves as specialists in personal injury defense). Herbert M. Kritzer Tort Law http://www.bepress.com/jtl/vol1/iss3/art4 http://www.bepress.com/jtl/vol1/iss3/art4 Wed, 17 Oct 2007 17:11:36 PDT Although Helland & Klick and Kritzer employ very different research methods, the two papers are alike in demonstrating the complementary nature of qualitative and quantitative empirical research. Using quantitative methods, Helland & Klick find an interesting positive relationship between the intensity of insurance market regulation and the likelihood of an insurer facing a class action in a given state. Future qualitative research will be necessary to adequately interpret this finding. Based on preliminary qualitative research Kritzer explores a variety of issues relating to defense practice that, as he acknowledges, will require additional qualitative and quantitative research to develop. For tort scholars, the papers present a useful snapshot of empirical research in the early stages of developing a new subfield in the study of tort law in action. Tom Baker Tort Law http://www.bepress.com/jtl/vol1/iss3/art2 http://www.bepress.com/jtl/vol1/iss3/art2 Wed, 17 Oct 2007 17:11:36 PDT Law and economics scholars generally view regulation and litigation as substitutes in the task of deterring potentially harmful conduct. Existing normative models suggest that the desirable mix of regulation and litigation will depend on a number of variables, but all largely agree that, on the margin, optimality requires that as public regulation increases, private litigation should decline and vice versa. To investigate whether this condition holds, we examine the factors that affect plaintiffs attorneys' decisions about where and when to file class actions using a unique dataset covering the class action experience of 130 insurance companies during the period 1992 to 2002. We find no evidence to support the proposition that public regulation and private litigation function as substitute channels to deter harmful behavior. In fact, we find some evidence that litigation and regulation tend to piggy-back on each other at least in the insurance industry. More important in the attorneys' filing decisions is whether or not cases regarding the same general allegation and cases filed in the same state have been successful in the past. Eric Helland Tort Law http://www.bepress.com/jtl/vol1/iss3/art5 http://www.bepress.com/jtl/vol1/iss3/art5 Wed, 17 Oct 2007 17:11:36 PDT The European Union advances the unification or at least harmonization of the legal systems of its Member States. How and to what extent should effective unification take place? To date, selective harmonization in the form of directives and regulations, evidently the work of compromise and political steer, have highlighted the want of a consistent concept of harmonization. This inconsistency is further reinforced by the decisions of the European Court of Justice. Notwithstanding the difficulties necessarily inherent in the embarkment of harmonization, later on coherent harmonization, this article advocates the exploit of comparative law, and its intrinsic rewards, to achieve these ends. Thus, a comparative approach was pivotal to the European Group on Tort Law in its drafting of the Principles of European Tort Law with the aim of creating overarching tort concepts on the European level. Much of the article is dedicated to illustrating the benefits of comparative law in the area of tort law, with a particular emphasis on wrongfulness and causation. Comparative law facilitates an in-depth inquiry into the historical development of the relevant field of interest, differences and similarities across Member States in their approach to that field and how it fits into the wider legal mosaic in each State. Such an approach thus guarantees a more consistent and coherent approach to the harmonization or unification of Member State laws. Helmut Koziol Tort Law Comparative Law http://www.bepress.com/jtl/vol1/iss3/art1 http://www.bepress.com/jtl/vol1/iss3/art1 Wed, 17 Oct 2007 17:03:24 PDT For at least the last 50 years two ways of looking at tort law have struggled for dominance. One characterized by system-builders, as Izhak Englard so felicitously termed us; the other by those who have seen in tort law the highest manifestation of the common law tradition of responding to breaches in non-criminal, often non-contractual interpersonal relationships. In this paper, I would like to explore the relationship between these two approaches, which I will suggest, find their common law antecedents, where else but, in the forms of actions, from which so much of modern Anglo-American private law derives. I will suggest that both approaches have always been there and that they have affected and shaped each other over the centuries and continue to do so today. Guido Calabresi Tort Law http://www.bepress.com/jtl/vol1/iss2/art4 http://www.bepress.com/jtl/vol1/iss2/art4 Fri, 01 Jun 2007 06:42:35 PDT The "idea of private law" has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of "private law" pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of "private law" as a form of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by the latter to the former. In a number of recent, elegant essays, Arthur Ripstein has advanced a particular version of this view, a version distinguished in important part by its enlistment of the political philosophy of John Rawls in support of this project. Tort Law in a Liberal State is a further contribution to this project, summarizing Professor Ripstein's view and arguing for both the interpretive and the philosophical plausibility of his project.Personal Inviolability and Private Law raises objections to both aspects of Ripstein's project, and briefly explains why "public law" conceptions of tort are at least as plausible as "private law" ones, both philosophically and interpretively. Interpretively, Professor Ripstein's conception is open to three serious objections. First, by placing the calling of one member of civil society to account by another at the center of their view, "private law" theorists threaten to place the remedial cart before the substantive horse. Prior to the late nineteenth century, tort existed--to the extent that it existed at all--as an essentially remedial body of law. Our modern law of torts comes into existence with (and by the recognition of) tort as a freestanding law of primary obligation. By placing such great weight both on Kant's property-centered account of private law and on "private law" theory's heavily remedial conception of tort, Professor Ripstein's conception cuts against the fundamental thrust of modern tort law. That thrust is to make obligation central and to treat right and remedy as separable. Ripstein, by contrast, places enormous weight on remedy and takes right and remedy to be indivisible.Second, Tort Law in a Liberal State is, in important part, a brief for the fault principle. Professor Ripstein is right to distinguish between "harm-based" torts such as liability for accidental injury, negligently inflicted and right-based" torts such as trespass, but wrong to claim that "harm-based" liability in tort is always fault-based. This claim leads Professor Ripstein both to a distorted account of tort law's various strict liabilities and to a fundamental mischaracterization of much of the conduct subject to liability in tort. Professor Ripstein's recasting of strict liabilities as fault ones commits him to the unfortunate idea that there is something intrinsically wrong with valuable, productive activities, blamelessly conducted. Both the recasting of particular strict liabilities in fault terms, and the righteous condemnation of risk to which this recasting leads, are mistaken. Rylands conduct in the famous case of Rylands v. Fletcher was not wrongful; Atlantic Cement's conduct in Boomer was not wrongful; and Lake Erie's conduct in Vincent was not wrongful. In all of these cases, defendant's only "fault" lay in (unreasonably) failing to make reparation for harm (reasonably) inflicted. More generally and more importantly, risk, like pollution, is not wrongful in itself, and harm is a matter of moral concern even when it issues from blameless conduct. Strict liability is a morally significant and instructive form of liability because it registers the perception that serious harm must sometimes be repaired, even though it has been faultlessly inflicted. Third and last, it is an interpretive mistake to insist that "public" and "private" forms of tort and accident law express fundamentally different values and moral conceptions. "Public law" schemes frequently complement or perfect "private law" ones, and threads of political morality tie private and public accident law institutions together. Zoning law's relation to nuisance is only one of many cases in point. Professor Ripstein's philosophical claims are likewise open to objection. For starters, Professor Ripstein's attachment to the form of "private law" transforms Kant's preoccupation with the inviolability of persons into a preoccupation with the formal purity of legal institutions. This is a path to avoid. An accident law faithful to the power of Kant's philosophy must be give pride of place to the inviolability of our persons, not to the inviolability of our legal forms. That latter path leads to endowing legal rules with the intrinsic value held only by persons. Second, Ripstein's assertion that Rawls' theory of justice commits him to the particular institutional form of "private law" is unpersuasive. Famously and explicitly, Rawls' theory leaves open the choice between capitalism and market socialism. The most natural and plausible reading of his theory of justice shows that it also leaves open the far more modest institutional choice between "private" and "public" law institutions. The final part of Personal Inviolability and "Private Law" briefly suggests that some form of enterprise liability constructed around a conception of commutative justice may, in fact, express the independence, equality and inviolability of democratic citizens more adequately than a "private law" constructed around a conception of corrective justice does. Free and equal citizens have ample reason not to place their rights against one another at the mercy of a "private law" negligence lottery, and to seek surer reparation for serious injury. Gregory C. Keating tort law http://www.bepress.com/jtl/vol1/iss2/art3 http://www.bepress.com/jtl/vol1/iss2/art3 Fri, 01 Jun 2007 06:42:31 PDT Tort law occupies an unusual place in the legal academy. No other doctrinal area is both central to the curriculum and widely disdained. I argue that the root of this disdain is the idea that tort is centrally concerned with remedies. Puzzles about the choice of fault as opposed to strict liability are generated by the thought that tort law is an incoherent mix of blame-based liability and that "pay as you go" system for socially useful activities. Neither of these tasks is easy to reconcile with the broader functions and aspirations of a liberal state. In place of this familiar picture, I argue that tort law is fundamentally about the obligations private persons of within a system of reciprocal limits on freedom, and show that remedies do no more than uphold those limits. This way of thinking about private obligations casts distinctive light on the role of fault within tort law. Harm-based torts, including negligence and nuisance, always have a fault requirement. With this distinction in hand, I look two of the leading examples of "pay as you go" liability. I show that Rylands v. Fletcher contains a fault element, and that Vincent v. Lake Erie is best analyzed as a familiar case of a trespass against property. The paper concludes with some more general reflections on the place of norms of private conduct within a liberal state. Arthur Ripstein tort law http://www.bepress.com/jtl/vol1/iss2/art2 http://www.bepress.com/jtl/vol1/iss2/art2 Fri, 01 Jun 2007 06:42:28 PDT This Comment on John Witt's Article examines the uses of the different kinds of history of accident law that Witt identifies. I argue that the significant distinction, for those who seek to use accidental law's history in normative legal scholarship, is between what Witt calls "contingency" and "inevitability" narratives, on the one hand, and "immanence" narratives, on the other hand. The former tend to permit us to argue about accident law's future, whereas the latter tend to constrain us. Kenneth S. Abraham Tort Law http://www.bepress.com/jtl/vol1/iss2/art1 http://www.bepress.com/jtl/vol1/iss2/art1 Fri, 01 Jun 2007 06:42:23 PDT For well over a century now, the law of accidents has offered one of the great testing grounds for theories of legal history. This article draws out three competing theories of history, and in particular of legal history, embedded in narratives of accident law's development. The first is immanence; the second is contingency; the third is inevitability. The immanence idea is that there is a deep inner logic to the development of the common law of torts. Contingency narratives, by contrast, tell the story of accident law's development as being accidental: untethered to any deep logic or transhistorical coherence. Finally, inevitability narratives contend that tort and accident law are driven inexorably in one direction or another, not by forces that are immanent or instinct in tort doctrine, but by institutions and economic imperatives that impose strong constraints on the development of the law. The article elaborates further on these three themes, highlights their significance, and shows some of the ways they have animated (consciously or otherwise) important work in the literatures of law and history. Along the way, the article notes the deep tensions between immanence narratives and contingency narratives. John Fabian Witt Tort Law