The Yale Law Journal

Torts

Comment

Tailoring Regimes for a Designer Drug: Developing Civil Liability for Retailers of Synthetic Marijuana

Sophia House

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

Cristina Carmody Tilley

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

Beatrice Walton

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

Mitchell N. Berman

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

Jules L. Coleman

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

Daniel A. Farber

**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

Richard A. Epstein

**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

Amir Nezar


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

Benjamin Ewing & Douglas A. Kysar

 

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

Ariel Porat

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

Mark A. Geistfeld


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

Hari M. Osofsky

**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

Jonathan H. Adler

**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

Maxine Burkett

**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

Daniel A. Farber

**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

James R. May

**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

Michael B. Gerrard

**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

Deana Pollard Sacks

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

Henry E. Smith

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

Lee Anne Fennell

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

Douglas Lichtman

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

James Gibson

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

Philip K. Howard

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

John Vail

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

John C.P. Goldberg

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"

Joshua Kleinfeld

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

Michael Abramowicz

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

Catherine M. Sharkey

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

Alice Clapman

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

Stephen R. Perry

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

Daryl J. Levinson

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

Margaret Gilhooley

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…

Essay

Drug Designs are Different

James A. Henderson Jr. & Aaron D. Twerski

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

John C. Jeffries & Jr.

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…

Response

Reply: Notions of Fairness Versus the Pareto Principle: On the Role of Logical Consistency

Louis Kaplow & Steven Shavell

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…