Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. __ (forthcoming, 2024), available at SSRN (Sept. 27, 2023). Anthony Sebok Kenneth S. Abraham and Catherine M. Sharkey’s The Glaring Gap in Tort Theory has a dramatic title. The article, which is about the unheralded and unappreciated role that liability insurance plays in tort, promises to make good on two claims—first, that the major (or a major) “missing piece” in modern tort scholarship is liability insurance, and second, once this missing piece is identified, it is impossible to ever see tort la ..read more

Elissa Philip Gentry, Damned Causation, 51 Ariz. St. L.J. 419 (2022). Kenneth W. Simons A common but troublesome factual cause problem arises in the following medical malpractice scenario. A doctor negligently treats or fails to diagnose a patient’s medical condition, and the patient dies or suffers serious harm from the condition. The patient (or the patient’s family) can prove that due care might have prevented that harm but cannot prove this causal link by a preponderance of the evidence. In recent years, most courts have responded to this “loss of a chance” of a better medical outcome ..read more

Osagie K. Obasogie & Zachary Newman, Colorblind Constitutional Torts, 95 S. Cal. L. Rev. 1137 (2023). Cristina Tilley Private causes of action for constitutional injuries are doctrinal eels. They slither freely among formal legal categories – variously creatures of constitutional law1 and tort;2 of federal jurisdiction3 and even conflict of laws.4 They have no agreed genus name; sometimes they are called Ku Klux Act claims; sometimes Enforcement Act claims; technically claims pursuant to 42 U.S.C. Section 1983 and conversationally constitutional tort.5 Because they swim in and out of ju ..read more

Eugene Volokh, The Right to Defy Criminal Demands, 16 N.Y.U.J.L. Liberty 360 (2022). Ellen Bublick If one party argues that another is guilty of negligence for breathing air, no court should allow that claim or defense. Why not? A court might say that breathing air is not negligent in the breach sense—it is reasonable to breathe (everyone does it) and, at least for now, its benefits outweigh its costs. Another way that a court could reject the breathing-air contention would be to say that the breathing party has “no duty” not to breathe.1 By saying that the party has no duty, the court woul ..read more

Eugene Volokh, Large Libel Models? Liability for AI Output, 3 J. Free Speech L. 489 (2023). John C.P. Goldberg A.I. in the form of Large Language Models (LLMs) is altering the ways in which we work, learn, and live. Along with their many upsides, an already familiar downside of LLMs is their propensity to “hallucinate” – that is, respond to factual queries with predictions or guesses that are false yet proffered as true.1 And some of these hallucinations are not merely false but defamatory. For example, if one were to query an A.I. program: “Of which crimes has Professor X of ABC Law School ..read more

Maytal Gilboa, Yotam Kaplan & Roee Sarel, Climate Change as Unjust Enrichment, __ Geo. L.J. __ (forthcoming), available at SSRN (July 6, 2023). Ronen Avraham When considering the essence of law, it becomes evident that its fundamental purpose is to safeguard our safety and well-being. However, amidst the many challenges facing humanity, the law has fallen short in shielding us from one of the gravest threats to our lives and way of life – climate change. In a new thought-provoking piece, Climate Change as Unjust Enrichment, Maytal Gilboa, Yotam Kaplan, and Roee Sarel (hereafter referred ..read more

David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law, 108 Va. L. Rev. 1657 (2022). Gregory Keating In On Rawlsian Contractualism and the Private Law, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. “[N]ot long ago,” they tell us, “the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. . .. The conventional, indeed ..read more

Gregory Keating, Irreparable Injury and the Limits of the Law of Torts in 2 Oxford Studies in Private Legal Theory 185 (Paul B. Miller & John Oberdiek eds. 2023), available at SSRN (Dec. 8, 2022). Leslie Kendrick Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions th ..read more

Alexandra D. Lahav, A Revisionist History of Products Liability (Jan. 9, 2023), available at SSRN. Christopher J. Robinette The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a “citadel” and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity.1 The story is simple. In an 1842 English case, Winterbottom v. Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach th ..read more

Richard L. Jolly, Valerie P. Hans & Robert S. Peck, The Civil Jury: Reviving an American Institution, available at The Civil Justice Research Initiative (Sept. 2021). Nora Freeman Engstrom In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury ..read more