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A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

Oxford's variorum edition of William Blackstone's seminal treatise on the common law of England and Wales offers the definitive account of the Commentaries' development in a modern format. For the first time it is possible to trace the evolution of English law and Blackstone's thought through the eight editions of Blackstone's lifetime, and the authorial corrections of the posthumous ninth edition. Introductions by the general editor and the volume editors set the Commentaries in their historical context, examining Blackstone's distinctive view of the common law, and editorial notes throughout the four volumes assist the modern reader in understanding this key text in the Anglo-American common law tradition. Entitled Of Private Wrongs, Book III can be divided into three principal parts. The first describes the multiple courts in England and their jurisdictions, including the wrongs cognizable in each of them. The second describes some aspects of the substantive common law: wrongs to persons and to personal and real property. The third describes the processes of litigation in the courts of common law and equity.

Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court's tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment. But courts have also allowed the Bankruptcy Code's mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These \"bankruptcy grifters\" act as parasites, receiving many of the substantive and procedural benefits of a host bankruptcy, but incurring only a fraction of the associated burdens. In exchange for the protections of bankruptcy, a debtor incurs the reputational cost and substantial scrutiny mandated by the bankruptcy process. Bankruptcy grifters do not. This dynamic has become evident in a number of recent, high-profile bankruptcies filed in the wake of pending mass-tort litigation, such as the Purdue Pharma and USA Gymnastics suits. This Article is the first to call attention to the growing prevalence of bankruptcy grifters in mass-tort cases. By charting the progression of nondebtor relief from asbestos and product-liability bankruptcies to cases arising out of the opioid epidemic and sex-abuse scandals, this Article explains how courts allowed piecemeal expansion to fundamentally change the scope of bankruptcy protections. This Article proposes specific procedural and substantive safeguards that would deter bankruptcy-grifter opportunism and increase transparency, thereby protecting victims as well as the bankruptcy process.

تُعتبر تشريعات المسؤولية التقصيرية من أهم التشريعات المدنية وأكثرها ارتباطا بالواقع الاقتصادي للمجتمعات؛ لأنها تتعلق بمسألة حساسة لها أثرها في زيادة تكاليف الإنتاج وقدرة المهنيين على الموازنة بين التكاليف وهامش الربح المتوقع على السلع والخدمات، إذ هي مسألة التعويض عن الأضرار لصالح المستهلكين أو العمال أو البيئة. ومن هنا كان هدف هذه الورقة هو دراسة الآثار الاقتصادية لنظام المسؤولية التقصيرية الإسلامي من خلال منهج التحليل الاقتصادي للقانون وأظهرت الورقة أن النظام الإسلامي يعتمد أسسا ووسائل متعددة ومتنوعة لتحقق أهداف المسؤولية، يحظى في ظلها المجتمع المهني بمستوى معقول من اليقين وانخفاض التكاليف مع حساسية عالية تجاه أهداف المسؤولية المتمثلة في ردع المضر وتعويض المضرور، مما يعني تحقيق أهداف المسؤولية دون الإخلال بتوازن المهني والمستهلك والمجتمع على حد سواء.

In a well-known article, Thomas Merrill posed the question “Is Public Nuisance a Tort?”, ultimately answering the question in the negative: “public nuisance is not, and never was, a tort.” This article reaches a different answer to Merrill’s question. It argues that Merrill was wrong to conclude that the characterisation of public nuisance as tort was a recent invention and that public nuisance claims are not privately actionable by individual plaintiffs. The article presents a defence of the private action for public nuisance and concludes, on both an historical and a theoretical account, that public nuisance has long been understood as a tort at common law, and for good reason.

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms. This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatements discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement. Tort law's stated goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community—closed and open—can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law's broader community-constructing purpose. A survey of American tort cases confirms that courts have intuitively been fluctuating between local morality norms and national efficiency norms for decades, without fully acknowledging or operationalizing this practice. Pivoting from theory to practice, the Article suggests that tort law should embrace and refine its ability to toggle between local morality and national efficiency. The Article briefly sketches how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms—and therefore liability—would be expected to vary within adjudicative communities. Making this normative toggle explicit would both enhance the internal integrity of tort law and improve tort law's external standing relative to other bodies of law such as the Constitution or federal statutes. Moreover, the Article concludes, understanding tort liability as an expression of particular community values might prevent the constitutional override of injury verdicts arising from protected behavior such as gun ownership or speech.

In the 1980s and 1990s many states adopted tort reforms. It has been argued that these reforms have reduced the practice of defensive medicine arising from excess tort liability. We find that this does not appear to be true for a large and important class of cases-childbirth in the United States. Using data from national vital statistics natality files on millions of individual births from 1989 to 2001, we ask whether specific tort reforms affect the types of procedures that are performed, and the health outcomes of mothers and their infants. We find that reform of the Joint and Several Liability rule (or the \"deep pockets rule\") reduces complications of labor and procedure use, whereas caps on noneconomic damages increase them. We show that these results are consistent with a model of tort reform that explicitly allows for variations in patient condition.

Over the past three decades, Lone Pine orders have become a fixture of the masstort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain–or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it's not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device. But that's just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen–and, in places, complicate–our understanding of these profoundly influential phenomena.