The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to predict where it may go. We contend that tort theory has experienced two different eras, and that it may well be about to enter a third. In the first era, spanning roughly the first three-quarters of the twentieth century, tort theory faced outward to the world, focusing on issues affecting redress for civil injuries that were being decided in the courts and emerging in American society at large. In the second era, roughly the last 30 to 40 years, tort theory turned inward and focused mostly on itself. The tort theory that has been done during this second era, valuable though it has been, may well have borne most of its scholarly fruit. We may therefore be ready to move into a third era, in which tort theory turns outward again and becomes occupied with the cutting-edge issues of tort law policy and principle that will be generated as the twenty-first century progresses. This Essay chronicles the first era, in which tort theory faced outward, the second era, in which tort theory turned inward, and identifies three issues that we believe may be on the tort theory agenda, when and if tort theory turns outward again. These involve the coordination and systematization of tort with other sources of regulation and compensation; redressing data theft and digital invasions of privacy; and heightened sensitivity to harm associated with sex, gender, and race-related misconduct.
Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public...
It has long been said that the common law "works itself pure" But in the law of torts, not always. This Article reveals and analyzes the...
Public nuisance has lived many lives. A centuries-old doctrine defined as an unreasonable interference with a right common to the public, it is...
This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient...
The requirement of harm has significantly impeded the enforcement of privacy law. In most tort and contract cases, plaintiffs must establish that they...
This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that...
For over a decade, a battle has been raging in the trial courts of this country over something called the "reptile theory," often simply referred to...
Tort Law and the Construction of Change studies the interaction of law and social change in American history. Tort law—civil law made by judges, not...
Through the standing doctrine, the U.S. Supreme Court has taken a new step toward severely limiting the effective enforcement of privacy laws. The...
Today all tort lawyers, scholars, and teachers understand that there are three bases of liability in tort: intent, negligence, and strict liability...
The future of tort theory cannot be sensibly imagined without understanding its past. Our aim is to understand where tort theory has been in order to...
This is the third edition of the first casebook in the United States devoted exclusively to trade secret law. As with previous editions, it is...
Very few developments have ever transformed either tort or insurance law. One development -- as important in our time as the adoption of liability for...