Torts
Forum
What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice
This Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the S…
Forum
Opaque Capital and Mass-Tort Financing
Mass-tort cases have grown in scale and created escalating resource demands. Enter opaque capital: aggressive financiers who offer attorneys and plaintiffs access to capital. The prospect of leveling the playing field is alluring. But these financiers will never be passive partners. Opaque capital i…
Forum
The New Public Nuisance: Illegitimate and Dysfunctional
The new public nuisance is illegitimate because it violates the rule of law and is inconsistent with norms of democratic accountability. It also ignores the dangers of over- and under-deterrence associated with joint ventures between prosecutors and personal-injury lawyers seeking massive damages f…
Article
The Perils and Promise of Public Nuisance
Public nuisance is a puzzle: both a medieval action and a contemporary force in large-scale opioid settlements, it has provoked historical, formalist, and institutional objections. Close examination reveals, however, that public nuisance adheres to the common law’s accepted bounds and can play an im…
Article
The First Amendment and the Right(s) of Publicity
First Amendment analysis in right of publicity cases is notoriously troublesome. To remedy this nettlesome conflict, this Article disaggregates the distinct interests that support publicity laws, and then analyzes how these intersect with First Amendment values. By doing so it offers a navigational …
Article
Competition Wrongs
Drawing on various forms of business law, this Article argues that misconduct in the marketplace can wrong other market actors even though those actors did not have a right against the misconduct. This argument challenges traditional philosophical and legal assumptions about rights and accountabilit…
Forum
Nudges and Norms in Multidistrict Litigation: A Response to Engstrom
Multidistrict-litigation judges have invented a medley of new procedures to adjudicate the mass-tort cases before them. As plaintiff fact sheets and Lone Pine orders become widespread, however, formal rules’ built-in protections wane and procedural burdens may fall more harshly on one side.
Article
The Lessons of Lone Pine
Lone Pine orders have become a prominent fixture of the mass-tort landscape. So far, the orders have been mostly heralded as an inventive way to streamline the resolution of complex cases. Complicating that consensus, this Article analyzes drawbacks associated with this potent device and advocates r…
Note
Making Black Lives Matter: Properly Valuing the Rights of the Marginalized in Constitutional Torts
Black lives are systematically undervalued by constitutional enforcement remedies. Courts and scholars have unquestioningly adopted tort law’s corrective-justice scheme for § 1983 suits. But corrective justice is unsatisfactory in a context where the government and private parties frequently interac…
Comment
Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana
The spread of synthetic marijuana is a public health crisis. Municipalities struggle with how to regulate drugs that can change as quickly as officials can design enforcement regimes. This Comment proposes leveraging creative administrative design and existing consumer protection torts to stem the t…
Article
Tort Law Inside Out
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 …
Note
Duties Owed: Low-Intensity Cyber Attacks and Liability for Transboundary Torts in International Law
Low-intensity state-sponsored cyber attacks exist within a “gap” in public international law. Falling short of the definitions of use of force and intervention, these attacks are not clearly governed by international law. Some scholars have sought to stretch established …
Forum
Abuse of Property Right Without Political Foundations: A Response to Katz
Suppose that Oliver owns Blackacre, a parcel adjacent to Whiteacre, owned by Teresa. Oliver erects a large sculpture on Blackacre along the shared property line. The sculpture conforms to zoning regulations. But Oliver erects it in order to block Teresa’s access to light. Is he legally ent…
Forum
Mistakes, Misunderstandings, and Misalignments
In a recent article appearing in The Yale Law Journal, Ariel Porat argues that the tort of negligence is beset by a range of misalignments that threaten to induce inefficient behavior. In this Response, I argue that Porat is working with an unhelpful notion of misalignment; that tort law has its own…
Forum
Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State
**This is the third in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here. For Professor Jonathan Zasloff's res…
Forum
Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming
**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.**
In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal sy…
Note
Reconciling Punitive Damages with Tort Law’s Normative Framework
121 Yale L.J. 678 (2011).
As punitive damages have gained greater visibility in Supreme Court jurisprudence, the need for principles explaining punitive damages and guiding their application has grown. Corrective justice would seem suited to providing guidance in this arena of tort law, but unfortun…
Article
Prods and Pleas: Limited Government in an Era of Unlimited Harm
121 Yale L.J. 350 (2011).
Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertai…
Article
Misalignments in Tort Law
121 Yale L.J. 82 (2011).
In negligence law, the risks taken into account by courts when setting the standard
of care are the same risks considered when imposing liability and awarding damages. I call this
the “alignment principle.” One objective of this Article is to expose exceptions to the alignment
p…
Essay
The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability
121 Yale L.J. 142 (2011).
When a tort rule is fully aligned, harms are valued equally across the elements.
Because the valuation of harm within duty equals the valuation within the damages remedy, a
fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any
harm by…
Forum
AEP v. Connecticut’s Implications for the Future of Climate Change Litigation
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “th…
Forum
A Tale of Two Climate Cases
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In July 2004, eight states, the City of New York, and a number of conservation organ…
Forum
Climate Justice and the Elusive Climate Tort
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) clo…
Forum
Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
Article III standing has three seemingly simple components: (1) the plaintiffs must …
Forum
AEP v. Connecticut and the Future of the Political Question Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
Whether and how to apply the political question doctrine were among the issues for w…
Forum
What Litigation of a Climate Nuisance Suit Might Look Like
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly le…
Forum
Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations
The Supreme Court’s forthcoming decision in Snyder v. Phelps will address the clash between two fundamental and longstanding American values: freedom of speech and “the right to be let alone.” Freedom of speech is a cherished and distinguishing characteristic of American democracy, while the r…
Article
Intellectual Property as Property: Delineating Entitlements in Information
This Article proposes that intellectual property’s close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms o…
Article
Property and Half-Torts
116 Yale L.J. 1400 (2007)
The idea that a tort can be split analytically into two parts—risk and harm—underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed’s famous entitlement framework. Thus, in discussing an “ent…
Essay
Irreparable Benefits
116 Yale L.J. 1284 (2007)
The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…
Article
Risk Aversion and Rights Accretion in Intellectual Property Law
116 Yale L.J. 882 (2007)
Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non)…
Forum
A Remedy Without a Wrong
Somewhere far away, in a land not studied by Professor John Goldberg, there may be a legal system that denies injured people redress for injuries. Flipping through the yellow pages here in America, however, there seems to be heavy traffic in the commerce of bringing lawsuits for almost any setback i…
Forum
Big Money v. The Framers
African-Americans and women were once, at law, lesser beings. They were made that way, in part, by not having the right to go to court and get redress there, the right by which the powerless hold the powerful to account. Why is it even plausible that so fundamental a right is not protected by the Co…
Article
The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs
115 Yale L.J. 524 (2005)
In our legal system, redressing private wrongs has tended to be the business of tort law, itself traditionally a branch of the common law. But do individuals have a "vested interest" in law that redresses wrongs? If so, do state and federal governments have a constitutional d…
Comment
Tort Law and In Vitro Fertilization: The Need for Legal Recognition of "Procreative Injury"
115 Yale L.J. 237 (2005)
Even when the facts are humanly grievous, plaintiffs do not often win their in vitro fertilization (IVF) tort suits. In Utah, an IVF clinic fertilized a woman's eggs with the wrong man's sperm; she ultimately bore a stranger's rather than her husband's children. A New York …
Article
On the Alienability of Legal Claims
114 Yale L.J. 697 (2005)
Courts have become increasingly skeptical of rules restricting plaintiffs' ability to sell legal claims, while legal commentators have argued that markets for claims would be economically beneficial, moving claims to those who can prosecute them most efficiently. Claim sales …
Article
Punitive Damages as Societal Damages
113 Yale L.J. 347 (2003)
Jury awards of "classwide" punitive damages provide windfalls to individual plaintiffs, particularly in products liability, fraud, civil rights, and employment discrimination cases. This suggests a new angle from which to approach the ongoing punitive damages debate. Under cu…
Note
Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts To Protect Abortion Patients and Staff
112 Yale L.J. 1545 (2003)
When Lori Driver, an anti-abortion activist, learned that Lisa Smith was scheduled to have an abortion the following day, Driver looked up Smith's telephone number and left her two telephone messages. Smith did not return Driver's calls, so Driver stepped up her efforts, go…
Review
Method and Principle in Legal Theory
111 Yale L.J. 1757 (2002)
The Practice of Principle is an excellent book that practically overflows with interesting and original arguments. Coleman is a superb analytical philosopher, as every page of the book attests. This is one of the most important contributions to legal theory to come along in …
Article
Framing Transactions in Constitutional Law
111 Yale L.J. 1311 (2002)
Common-law rules and adjudication are typically structured around discrete interactions between strangers. The unit of legal analysis, or "transaction," is intuitively defined by the discontinuous event that disrupted the otherwise unrelated lives of the parties; and the foc…
Review
Tobacco Unregulated: Why the FDA Failed, and What To Do Now
111 Yale L.J. 1179 (2002)
The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out t…
Note
Tortious Interference and the Law of Contract: The Case for Specific Performance Revisited
111 Yale L.J. 735 (2001)
Essay
Drug Designs are Different
111 Yale L.J. 151 (2001)
In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…
Essay
Disaggregating Constitutional Torts
110 Yale L.J. 259 (2000)
This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…
Note
The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age
110 Yale L.J. 333 (2000)
Response
Reply: Notions of Fairness Versus the Pareto Principle: On the Role of Logical Consistency
110 Yale L.J. 237 (2000)
In other writing, we advance the thesis that legal policies should be evaluated solely on the basis of their effects on individuals' well-being, meaning that no independent evaluative weight should be accorded to notions of fairness. In that work, we consider a variety of pr…