Published since January 1, 2006

Journal of Tort Law

ISSN: 1932-9148

Edited by: Ellen M. Bublick, Gregory Keating

Founded by: Jules Coleman

Editorial Board: Mark A Geistfeld, John Goldberg, Ronen Perry, Christopher Robinette, Catherine M. Sharkey, John Witt, Benjamin Zipursky

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About this journal

Objective
The Journal of Tort Law aims to be the premier publisher of original articles about tort law. JTL is committed to methodological pluralism. The only peer-reviewed academic journal in the U.S. devoted to tort law, the Journal of Tort Law publishes cutting-edge scholarship in tort theory and jurisprudence from a range of interdisciplinary perspectives: comparative, doctrinal, economic, empirical, historical, philosophical, and policy-oriented. Founded by Jules Coleman (Yale) and some of the world's most prominent tort scholars from the Harvard, Fordham, NYU, Yale, and University of Haifa law faculties, the journal is the premier source for original articles about tort law and jurisprudence.

Topics

Comparative, doctrinal, economic, empirical, historical, philosophical, and policy-oriented analyses of issues in or related to tort law
European Tort Law
Comparative Law
Foreign and International Law

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Scholarly articles, comments and reviews

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History

Two issues/year
Content available since 2006 (Volume 1, Issue 1)
ISSN: 1932-9148

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Ahead of Print / Just Accepted

Ahead of Print / Just Accepted

Volume 16 (2023)

Volume 15 (2022)

Volume 14 (2021)

Volume 13 (2020)

Volume 12 (2019)

Volume 11 (2018)

Volume 10 (2017)

Volume 4 (2011)

Volume 3 (2010)

Issue 1

Volume 2 (2008)

Issue 1

Volume 1 (2007)

CiteScore	0.4	2022, Scopus (Elsevier B.V., 2023)
SCImago Journal Rank	0.111	2022, SJR (Scimago Lab, 2023; Data Source: Scopus)
Source Normalized Impact per Paper	0.134	2022, CWTS Journal Indicators (CWTS B.V., 2023; Data Source: Scopus)

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Submit your paper via our Online Submission Tool according to JTL Style Guidelines
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Please note

All submissions to the JTL should be in English of the quality expected in a scholarly English-language journal
Once your article is accepted you have the option to publish it open access
Our Repository Policy allows you to distribute 30 PDF copies of your published article to colleagues (the PDF has to include the information that it is an author's copy). Please also feel free to distribute the link to the online abstract
If you have any general questions please visit our FAQ for authors

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Editorial

Co-Editors
Ellen M. Bublick, University of Arizona
Gregory Keating, University of Southern California (USC) Gould School of Law

Senior Editors
Mark Geistfeld, New York University
John Goldberg, Harvard University
Ronen Perry, Haifa University
Christopher J. Robinette, Southwestern Law School
Catherine Sharkey, New York University
John Witt, Yale University
Benjamin Zipursky, Fordham University

Founding Editor
Jules Coleman

Advisory Board
Kenneth Abraham, University of Virginia
Jennifer Arlen, New York University
Anita Bernstein, Brooklyn Law School
Guido Calabresi, Yale University (Honorary Member)
Izhak Englard, Hebrew University
Richard Epstein, University of Chicago
George Fletcher, Columbia University
James Gordley, University of California, Berkeley
Mark Grady, University of California, Los Angeles
Gregory Keating, University of Southern California
Helmut Koziol, Austrian Academy of Sciences
Saul Levmore, University of Chicago
David G. Owen, University of South Carolina
Stephen R. Perry, University of Pennsylvania
Ariel Porat, University of Tel Aviv
Robert L. Rabin, Stanford University
Arthur Ripstein, University of Toronto
Christopher Schroeder, Duke University
Anthony Sebok, Cardozo Law School
Stephen Shavell, Harvard University
Jane Stapleton, University of Cambridge
Stephen Sugarman, University of California, Berkeley
W. Kip Viscusi, Vanderbilt University
Ernest Weinrib, University of Toronto
Richard W. Wright, Illinois Institute of Technology

Volume 16 Issue 2

October 2023

Publicly Available April 17, 2024

Frontmatter

Page range: i-iv

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Symposium Articles

Open Access December 8, 2023

Private Nuisance: The UK Supreme Court Take a View

Roderick Bagshaw

Page range: 173-191

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Abstract

Fearn v Board of Trustees of the Tate Gallery , required the UK Supreme Court to resolve claims that by operating an open-air terrace, from which visitors could enjoy a high-level view of London, the defendants were committing the tort of private nuisance against the owners of nearby luxury flats. The Court decided that the intrusive staring into the flats by visitors to the terrace could be a form of private nuisance, but split as to whether the tort was being committed; a minority thought that it would be necessary to take account of the claimants’ flats being glass-walled, and consequently unusually vulnerable to ocular intrusion, and the possibility of the claimants mitigating their discomfort by using blinds, whilst the majority insisted that it was straightforward to hold the defendants liable. This article concentrates on the majority’s re-statement of the basic test for liability in private nuisance, in particular their shift from an approach that assesses the “reasonableness” (or otherwise) of the defendant’s activity to one that relies heavily on a distinction between “common and ordinary” and “special and unusual” uses of land. It concludes that several key elements in the re-statement will require further elucidation, and that the key distinction does not reflect the values that its proponents hoped that it would.

Open Access March 25, 2024

Liking the Intrusion Analysis in In Re Facebook

Jane R. Bambauer

Page range: 193-204

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Abstract

In re Facebook preserved a class action brought against Facebook based on its mass collection of web browsing data. Although the plaintiffs brought several common law and statutory causes of action, I will focus on the court’s analysis of intrusion upon seclusion. This is where the case makes its greatest contribution to 21st century jurisprudence. It clears up several puzzles that had troubled the tort (and indeed my own thinking) to the great benefit of tort theory and the progress of privacy law.

Publicly Available August 30, 2023

Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels

Maureen E. Brady, James Y. Stern

Page range: 205-229

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Abstract

A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi , the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel , in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what sorts of conduct the traditional tort prohibits: specifically, when a plaintiff may obtain nominal damages or an injunction against a defendant’s contact with personal property when that contact does not have lasting physical effects. As we point out, this question arose in cases long before Intel and generated some discussion during the drafting of the First and Second Restatements of Torts. Now, the same question arises in Fourth Amendment law and the law of Article III standing, areas in which recent Supreme Court decisions have elevated trespass-to-chattels analyses to renewed significance. Our Essay indicates the need for further development on open questions in the law of trespass to chattels, suggesting some ways that central tort-law notions like intentionality and custom might provide firmer bases for recognizing the harm in unwanted contact with things.

Open Access April 1, 2024

What We Talk About When We Talk About the Duty of Care in Negligence Law: The Utah Supreme Court Sets an Example in Boynton v. Kennecott Utah Copper

Ellen M. Bublick

Page range: 231-253

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Abstract

Every day, state common law courts define the duty of care in negligence law. There is no formula for how courts should determine duty. Yet when judges are charged with important decisions about whether to open or shut the courthouse doors to whole categories of claimants, judges need some framework for decision. This article commends as an exemplar, the Utah Supreme Court’s decision in Boynton v. Kennicott Utah Copper, a take-home asbestos exposure case. The power of Boynton is not only the answer it provides, but also the coherent framework for analysis that Justice Constandinos Himonas’ opinion sets forth. The opinion’s framework incorporates established principles as well as important tort policies such as harm prevention. Boynton’s structure at once provides the stability and consistency of precedent befitting common law adjudication while also incorporating the public policy and pragmatic concerns that have long guided tort law’s development. Boynton’s framework achieves a similar result to the one in the Third Restatement—creating duty and no-duty rules with possibility of exception based on principle and policy factors. However, Boynton does so through traditional terminology that has aquired meaning through repeated historical application. Courts, scholars and students would be well advised to examine the Utah Supreme Court’s approach to duty analysis.

Open Access February 28, 2024

Disentangling Immigration Policy From Tort Claims for Future Lost Wages

Shefali Milczarek-Desai

Page range: 255-281

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Abstract

While largely unknown, the Indiana Supreme Court’s 2017 opinion Escamilla v. Shiel Sexton Co. deserves to be canonized for closely examining – and, ultimately, rejecting – the incursion of federal immigration law and policy into state tort law. For over two decades, state and federal courts have relied on the United States Supreme Court’s 2002 ruling in Hoffman Plastic Compounds v. NLRB , to deny future lost wages awards to successful tort claimants who lack documentation. Escamilla reveals the faulty logic underlying this caselaw and provides a clear and straightforward framework for future courts to employ when faced with this issue. Ultimately, Escamilla demonstrates why plaintiffs’ undocumented status, alone, is insufficient to allow tortfeasors to escape paying tort victims what often amounts to substantial damages. In doing so, Escamilla fortifies the compensation and deterrence functions of tort law.

Publicly Available November 6, 2023

Sherman v. Department of Public Safety: Institutional Responsibility for Sexual Assault

John C. P. Goldberg, Benjamin C. Zipursky

Page range: 283-300

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Abstract

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department of Public Safety , the Delaware Supreme Court applied a particular version of one such doctrine – the “aided-by-agency” doctrine – to hold a police department accountable for its officer’s sexual assault of an arrestee. By articulating this doctrine in a thoughtful and circumscribed manner, the Court affirmed its reputation as a leader in the development of agency law, while also providing a helpful framework that can be applied to hold certain employers liable when employees take advantage of their employment-based authority over their victims to perpetrate assaults.

Open Access February 26, 2024

Putting “Duty” Back on Track

Gregory C. Keating

Page range: 301-331

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Abstract

Brown v. USA Taekwondo grapples with the problems that have dogged California law governing the determination of duty in negligence for more than fifty years now. The great California duty decisions of the late 1960s— Rowland v. Christian and Dillon v. Legg —were the bookends to an age of American tort law inaugurated by MacPherson v. Buick and Palsgraf v. Long Island Railroad. MacPherson and Palsgraf altered both the internal structure of negligence law and tort law’s relation to contract and property by making reasonable foreseeability of harm the master principle of responsibility in tort. Rowland and Dillon brought the age of reasonable foreseeability to a close. As their implications unfolded over time, we learned that making reasonable foreseeability of harm the fundamental test for both the existence of obligation and the extent of liability imposes more responsibility than we can bear. Reaching the limits of reasonable foreseeability as the master principle of duty doctrine left courts hard-pressed to say when fundamental responsibilities of care should be expanded and when they should be contracted. Ever since, California courts have been muddling their way through duty cases. They have been uncertain both about when an actor bears some responsibility for reducing a risk or mitigating a harm and about how they should go about making such determinations. USA Taekwondo’s efforts to recast Rowland’s laundry list of relevant factors as a two-step test shows us how we might begin to bring our own age of confusion to a close.

Open Access January 8, 2024

Public Authority Liability for Careless Failure to Protect from Harm

Sandy Steel

Page range: 333-349

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Abstract

This article considers the UK Supreme Court decision in Michael v Chief Constable of South Wales Police . It explains the significance of the decision in terms of its affirmation of the principle that public authorities, in the case, the police, are subject to the same duties of care as private individuals in the tort of negligence. While offering some support for this ‘equality principle’, the article questions whether the principle is justifiably applied so as to restrict public authorities’ liability to that of private individuals.

Publicly Available August 8, 2023

Unnecessary and Insufficient Factual Causes

Jane Stapleton

Page range: 351-372

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Abstract

Law recognizes a necessary (i.e., but-for) factor as a factual cause. However, it is a common misconception that the but-for test is the exclusive test of factual causation. Longstanding case law reveals that a factor may be a factual cause of an outcome, even if it was neither necessary nor sufficient for it. This was recently unanimously confirmed by the Supreme Court of the United Kingdom in Financial Conduct Authority v . Arch Insurance ( UK ) Ltd ( 2021 ). In the law, there seems to be a uniform concept of what it means to be a factual cause, one that is wider than necessity and includes unnecessary and insufficient factors which are recognized as factual causes across a wide variety of legal contexts. This uniform concept of factual cause can be captured in a forensically straightforward way in an “extended but-for test”. Appreciation of unnecessary and insufficient factual causes, which are common, provides a more coherent frame in which to view the outcomes of certain earlier cases. It also illuminates the importance for clarity of legal reasoning of separating the context-independent factual cause issue from context-dependent analytical stages such as the scope of the rule and remedy, including loss quantification.

Publicly Available August 30, 2023

Beltran-Serrano v. City of Tacoma

Sarah L. Swan

Page range: 373-391

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Abstract

In Tacoma, Washington, on a late June afternoon in 2013, a police officer brutally shot an unarmed, mentally-ill, middle-aged homeless man four times in the back with a Glock 45. He was not a suspect in any criminal wrongdoing, and horrified eyewitnesses confirmed that he was not posing a threat to anyone, including the officer, at the time of the shooting. The victim, Cesar Beltran-Serrano, survived, and subsequently sued the city for his injuries. The case eventually landed at the Washington Supreme Court, where the court was asked to resolve two separate legal issues: does the public duty doctrine immunize localities from liability when an officer has affirmatively acted (rather than just failed to act), and can a police officer who intentionally shoots a person be liable in both negligence and intentional tort. The court found in favor of the plaintiff on both issues. In so doing, the court created a viable and accessible path towards greater police accountability. On this basis alone, the decision deserves a spot in this symposium issue on the Great Tort Cases of the 21st Century. Yet the case does still more: its holdings are important not just for plaintiffs bringing claims against police, but for parties in cases far beyond the police/city context. Most notably, the issue of whether negligence can co-exist with intentional assault and battery claims is of particular importance to sexual assault tort litigation and potentially opens pathways for other contexts as well. The dual holdings in Beltran-Serrano thus hold much promise for those seeking social justice through tort law.

Main Article

Publicly Available September 25, 2023

The Tort of Discrimination

Hanoch Dagan, Avihay Dorfman

Page range: 393-430

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Abstract

This Essay integrates two ambitions: to lay out new theoretical foundations for antidiscrimination law and to demonstrate the practical significance of these foundations to tackle instances of wrongful discrimination beyond the reach of the current legal regime. Concerning theory, we articulate an account of wrongful discrimination grounded in private law’s basic commitment to reciprocal respect for the self-determination and substantive equality of private persons. Concerning practice, we argue that antidiscrimination law is currently at its pre-MacPherson v. Buick stage, meaning it is made up of isolated pockets of liability for discriminatory behavior. The gaps between them are indefensible since they necessarily undermine people’s fundamental right to be treated as equals by holders of normative powers such as proprietors, employers, and lessors. Nothing short of a full-blown tort of discrimination will enable antidiscrimination law to reach its own MacPherson moment. The theoretical account we develop provides the necessary framework for embarking on this crucial endeavor: a clear articulation of the normative foundations of this tort as an integral and indispensable part of private law in a liberal society. Drawing on existing tort doctrines, we identify important legal tools that can be utilized for prescribing the proper elements—duty, breach, injury, causation, and remedy—of a novel, generic tort of discrimination.

(Deutsch)

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Online ISSN: 1932-9148
Print ISSN: 2194-6515
Type: Journal
Language: English
Publisher: De Gruyter
First published: January 1, 2006
Publication Frequency: 2 Issues per Year
Audience: Researchers and practitioners interested in tort law