Kenneth S. Abraham

  • David and Mary Harrison Distinguished Professor of Law

Kenneth Abraham is one of the nation’s leading scholars and teachers in the fields of torts and insurance law. He is a fellow of the American Academy of Arts and Sciences and a life member of the American Law Institute. For 20 years he served on the Council of the ALI — the board of lawyers, judges and academics that governs the Institute. He is also an adviser to the ALI’s Restatement of Torts (Third) and was the senior advisor to the Restatement of the Law of Liability Insurance. He has served on a number of other boards and commissions concerned with tort law and insurance reform.

Abraham is a recipient of the All-University of Virginia Outstanding Teacher Award, the Distinguished Faculty Achievement Certificate from the State Council of Higher Education for Virginia for "outstanding achievement in teaching, research and public service,” and the American Bar Association's Robert B. McKay Law Professor Award, given for "outstanding contributions to tort and insurance law." He has been a visiting professor at Harvard Law School and Case Western Reserve Law School. He was the first law professor to be elected an Honorary Fellow of the American College of Coverage Counsel.

Abraham is the author of more than 70 law review articles and six books. His first book, "Distributing Risk: Insurance, Legal Theory, and Public Policy" (1986), brought modern legal theory to the study of insurance law. His torts treatise, "The Forms and Functions of Tort Law" (6th ed. 2022), has become a basic text for first-year law students across the country. And his casebook, "Insurance Law and Regulation" (7th ed. 2020) has been used as the principal text in courses on insurance law in more than 100 American law schools.

Abraham has been a consulting counsel and an expert witness in a variety of major insurance coverage cases, involving commercial general liability, directors and officers liability, environmental cleanup liability, toxic tort and products liability, and property insurance claims. He has also served as an arbitrator for the Dalkon Shield Claimants Trust, resolving over 100 claims by women seeking damages for injuries caused by the Dalkon Shield intrauterine device, both in the United States and Europe.

Scholarship Profile: Insurance Law's Practical Theorist (Virginia Journal 1998)

Education

  • J.D.
    Yale Law School
    1971
  • A.B.
    Indiana University
    1967

Forthcoming

The Limits of Regulation by Insurance (with Daniel Schwarcz), Indiana Law Journal (2023).
Shadow Tort Law: Lessons From The Reptile, Columbia Law Review Forum (2022).
What History Can Tell Us About the Future of Insurance and Litigation after COVID-19 (with Tom Baker), DePaul Law Review (2022).

Books

Tort Law and the Construction of Change: Studies in the Inevitability of History (with G. Edward White), University of Virginia Press (2022).
The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, Harvard University Press (2008).
Environmental Liability Insurance Law: An Analysis of Toxic Tort and Hazardous Waste Insurance Coverage Issues, Prentice Hall Law & Business (1991).
Distributing Risk: Insurance, Legal Theory, and Public Policy, Yale University Press (1986).

Textbooks

The Forms and Functions of Tort Law, Foundation Press (1–4, 6 ed. 1997–2022).
Insurance Law and Regulation: Cases and Materials (with Daniel Schwarcz), Foundation Press (1–7 ed. 1990–2020).
A Concise Restatement of Torts, American Law Institute Publishers (1 ed. 2000).

Book Chapters

Insurance, in The Oxford Handbook of The New Private Law, Oxford University Press, 445–461 (2020).
Classification Risk and Its Regulation (with Pierre-André Chiappori), in Research Handbook on the Economics of Insurance Law, Edward Elgar, 290–320 (2015).
Twenty-First-Century Insurance and Loss Distribution in Tort Law, in Exploring Tort Law, Cambridge University Press (2005).
United States of America: Liability for Acts of Terrorism under U.S. Law, in Terrorism, Tort Law and Insurance: A Comparative Survey, Springer, 176–188 (2004).
Rylands v. Fletcher: Tort Law's Conscience, in Torts Stories, West Law School (2003).
The Insurance Effects of Regulation by Litigation, in Regulation through Litigation, AEI-Brookings Joint Center for Regulatory Studies, 212–233 (2002).
The Causes of the Insurance Crisis, in New Directions in Liability Law, Academy of Political Science, 54–66 (1988).
Judge-Made Law and Judge-Made Insurance, Virginia Law Review, 1151–1199 (1981).
Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair, Rutgers University Law Review, 676–694 (1979).

Articles & Reviews

The Inward Turn and the Future of Tort Theory (with G. Edward White), 14 Journal of Tort Law 245–259 (2021).
Rethinking the Development of Modern Tort Liability (with G. Edward White), 101 Boston University Law Review 1289 (2021).
Conceptualizing Tort Law: The Continuous (and Continuing) Struggle (with G. Edward White), 80 Maryland Law Review 293–342 (2021).
Courting Disaster: The Underappreciated Risk of a Cyber-Insurance Catastrophe (with Daniel Schwarcz), 27 Connecticut Insurance Law Journal 407–473 (2021).
Police Liability Insurance after Repeal of Qualified Immunity, and Before, 56 Tort Trial and Insurance Practice Law Journal 31–52 (2021).
The Long-Tail Liability Revolution: Creating the New World of Tort and Insurance Law, 6 University of Pennsylvania Journal of Law & Public Affairs 347–412 (2021).
“Incomplete” Insurance Coverage, 26 Connecticut Insurance Law Journal 115–143 (2020).
First Amendment Imperialism and the Constitutionalization of Tort Liability (with G. Edward White), 98 Texas Law Review 813–861 (2020).
Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era (with Robert L. Rabin), 105 Virginia Law Review 127–171 (2019).
Plain Meaning, Extrinsic Evidence, and Ambiguity: Myth and Reality in Insurance Policy Interpretation, 25 Connecticut Insurance Law Journal 329–367 (2019).
The Future Is Almost Here: Inaction Is Actually Mistaken Action (with Robert L. Rabin), 105 Virginia Law Review Online 91–95 (2019).
The Puzzle of the Dignitary Torts (with G. Edward White), 104 Cornell Law Review 317–380 (2019).
There’s No Such Thing as Affirmative Duty (with Leslie Kendrick), 104 Iowa Law Review 1649–1698 (2019).
Torts Without Names, New Torts, and the Future of Liability for Intangible Harm (with G. Edward White), 68 American University Law Review 2089–2144 (2019).
Recovering Wagner v. International Railway Company (with G. Edward White), 34 Touro Law Review 21–62 (2018).
Tort Luck and Liability Insurance, 70 Rutgers University Law Review 1–42 (2018).
The Transformation of the Civil Trial and the Emergence of American Tort Law (with G. Edward White), 59 Arizona Law Review 431–484 (2017).
Prosser’s The Fall of the Citadel, 100 Minnesota Law Review 1823–1844 (2016).
Jefferson’s Fire Insurance Policy and Monticello’s Reconstruction of Slavery, 11 The Green Bag Second Series 11–25 (2015).
Risk Aversion, Insurance Insurance, and the Limits of Regulation, 5 UC Irvine Law Review 513–536 (2015).
The Liability Insurer’s Duty to Settle Uncertain and Mixed Claims, 68 Rutgers University Law Review 337–369 (2015).
Review of Rob Merkin & Jenny Steele, Insurance and the Law of Obligations (reviewing Rob Merkin & Jenny Steele, Insurance and the Law of Obligations) 5 Journal of European Tort Law 356–358 (2014).
Tribute to Judge Guido Calabresi, 70 Annual Survey of American Law 19–23 (2014).
Prosser and His Influence (with G. Edward White), 6 Journal of Tort Law 27–74 (2013).
Self-Proving Causation, 99 Virginia Law Review 1811–1853 (2013).
Four Conceptions of Insurance, 161 University of Pennsylvania Law Review 653–698 (2012).
Liability for Bad Faith and the Principle without a Name (Yet), 19 Connecticut Insurance Law Journal 1–12 (2012).
Strict Liability in Negligence, 61 DePaul Law Review 271–302 (2012).
Catastrophic Oil Spills and the Problem of Insurance, 64 Vanderbilt Law Review 1770–1791 (2011).
Lessons Learned from the History of Corporate Liability Insurance in the United States, 35 Geneva Papers on Risk & Insurance 364–368 (2010).
Custom, Noncustomary Practice, and Negligence, 109 Columbia Law Review 1784–1822 (2009).
Insufficient Analysis of Insufficient Activity, 108 Michigan Law Review First Impressions 24–29 (2009).
Stable Divisions of Authority, 44 Wake Forest Law Review 963–977 (2009).
The Common Law Prohibition on Party Testimony and the Development of Tort Liability, 95 Virginia Law Review 489–515 (2009).
A Tribute to Glen O. Robinson, 94 Virginia Law Review 1292–1294 (2008).
The Uses of Accident Law's Past, 1 Journal of Tort Law (2007).
The Hurricane Katrina Insurance Claims, 93 Virginia Law Review in Brief 173–180 (2007).
Liability Insurance and Accident Prevention: The Evolution of an Idea, 64 Maryland Law Review 573–612 (2005).
The Genie and the Bottle: Collateral Sources under the September 11th Victim Compensation Fund (with Kyle D. Logue), 53 DePaul Law Review 591–626 (2003).
The Lawlessness of Arbitration (with J. W., Montgomery), 9 Connecticut Insurance Law Journal 355–369 (2003).
Eventi Catastrofali, Prevedibilità e Assicurabilità: Mito e Realtà Negli Stati Uniti Dopo l’11 Settembre, 44 Diritto ed Economia dell’Assicurazione 651–676 (2002).
Interpretation or Regulation? Gaunt v. John Hancock Mutual Life Insurance Company, 2 Nevada Law Journal 312–318 (2002).
Liability for Medical Monitoring and the Problem of Limits, 88 Virginia Law Review 1975–1988 (2002).
Talking Torts, 50 UCLA Law Review 261–262 (2002).
The Relation between Civil Liability and Environmental Regulation: An Analytical Overview, 41 Washburn Law Review 379–398 (2002).
Peril and Fortuity in Property and Liability Insurance, 36 Tort & Insurance Law Journal 777–802 (2001).
The Rise and Fall of Commercial Liability Insurance, 87 Virginia Law Review 85–109 (2001).
The Trouble with Negligence, 53 Vanderbilt Law Review 1187–1223 (2001).
Understanding Prohibitions against Genetic Discrimination in Insurance, 40 Jurimetrics 123–128 (1999).
Allocation of Settlements in Multi-Insurer Coverage Disputes, 48 Federation of Insurance & Corporate Counsel Quarterly 427–453 (1998).
The Expectations Principle as a Regulative Ideal, 5 Connecticut Insurance Law Journal 59–68 (1998).
The Maze of Mega-Coverage Litigation, 97 Columbia Law Review 2102–2116 (1997).
A Theory of Insurance Policy Interpretation, 95 Michigan Law Review 531–569 (1996).
Enterprise Medical Liability and the Choice of the Responsible Enterprise (with Paul C. Weiler), 20 American Journal of Law & Medicine 29–36 (1994).
Enterprise Medical Liability and the Evolution of the American Health Care System (with Paul C. Weiler), 108 Harvard Law Review 381–436 (1994).
The Natural History of the Insurer's Liability for Bad Faith, 72 Texas Law Review 1295–1315 (1994).
Cleaning up the Environmental Liability Insurance Mess, 27 Valparaiso University Law Review 601–636 (1993).
Enterprise Responsibility for Person Injury: Further Reflections (with Robert L. Rabin & Paul C. Weiler), 30 San Diego Law Review 333–364 (1993).
Private Insurance, Social Insurance, and Tort Reform: Toward a New Vision of Compensation for Illness and Injury (with Lance Liebman), 93 Columbia Law Review 75–118 (1993).
Collective Justice in Tort Law (with Glen O. Robinson), 78 Virginia Law Review 601–636 (1992).
What Is a Tort Claim?: An Interpretation of Contemporary Tort Reform, 51 Maryland Law Review 172–204 (1992).
"Second Generation" Issues in Environmental Liability Insurance Litigation, 3 Environmental Claims Journal 309–325 (1991).
The Once and Future Crisis, 4 Journal of Risk and Uncertainty 353–371 (1991).
Aggregative Valuation of Mass Tort Claims (with Glen O. Robinson), 53 Law & Contemporary Problems 137–157 (1990).
Products Liability Law and Insurance Profitability, 19 Journal of Legal Studies 837–844 (1990).
Punitive Damages and the Rule of Law: The Role of Defendant’s Wealth (with John C. Jeffries Jr.), 18 Journal of Legal Studies 415–425 (1989).
Environmental Liability and the Limits of Insurance, 88 Columbia Law Review 942–988 (1988).
Medical Liability Reform: A Conceptual Framework, 260 Journal of the American Medical Association 68–72 (1988).
Redistributional Issues in the Privatization of Government Insurance Programs, 11 George Mason University Law Review 151–155 (1988).
The Insurance Implications of Administrative Compensation Schemes, 25 Houston Law Review 817–836 (1988).
Individual Action and Collective Responsibility: The Dilemma of Mass Tort Reform, 73 Virginia Law Review 845–907 (1987).
Making Sense of the Liability Insurance Crisis, 48 Ohio State Law Journal 399–411 (1987).
Principle and Pragmatism in the Compensation Debate (reviewing Jane Stapleton, Disease and the Compensation Debate) 7 Oxford Journal of Legal Studies 302–308 (1987).
Scientific Uncertainty in the Courts (with Richard A. Merrill), 2 Issues in Science & Technology 93 (1986).
The Costs of Attitudes (reviewing Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem) 95 Yale Law Journal 1043–1086 (1986).
Efficiency and Fairness in Insurance Risk Classification, 71 Virginia Law Review 403–451 (1985).
Adopting Comparative Negligence: Some Thoughts for the Late Reformer, 41 Maryland Law Review 300–315 (1982).
Cost Internalization, Insurance, and Toxic Tort Compensation Funds, 2 Virginia Journal 123–148 (1982).
Alternatives to the Tort System for the Nonmedical Professions: Can They Do the Job, 1981 Brigham Young University Law Review 57–86 (1981).
Review of R. Burt, Taking Care of Strangers, 169 Journal of Nervous & Mental Disease 740 (1981).
Three Fallacies of Interpretation: A Comment on Precedent and Judicial Decision, 23 Arizona Law Review 771–784 (1981).
Observations on Medical Malpractice: A Look at Performance Patterns Among Attorneys and Physicians (with S. Kirson), Maryland Medical Journal (1980).
Review of Unger, Knowledge and Politics and Law in Modern Society (reviewing Roberto Mangabeira Unger, Knowledge and Politics; Law in Modern Society) 94 MLN 1202–1206 (1979).
Medical Malpractice Reform: A Preliminary Analysis, 36 Maryland Law Review 489–532 (1977).
Reading Law and Reading Literature, 1 ALSA Forum 31–36 (1976).
The Public's Emerging Right to Know, 8 Maryland Bar Journal 38–45 (1975).

Op-Eds, Blogs, Shorter Works

Driverless Vehicles and Manufacturer Responsibility for Accidents—A New Legal Regime for a New Era (with Robert L. Rabin), Bloomberg Law (August 17, 2018).
Four Conceptions of Insurance, TortsProf Blog (February 8, 2010).
Solving the Insurance Liability Crisis, Legal Times S31-S33 (May 31, 1993).
Mapping a Future for Tort Law, Virginia Law School Report 18–21 (1992).

Current Courses

Insurance
Torts

All Courses

Torts
Insurance Law
Tort Theory (seminar)

IN THE NEWS

04/08/2022
Stability and Progress (Jotwell)
02/18/2022
Author’s Corner With Kenneth S. Abraham and G. Edward White, Authors of Tort Law and the Construction of Change (University of Virginia Press)
08/02/2020
The HEALS Act’s Proposed Liability Shield Would Let Consumers and Employees Successfully Sue for COVID-19 Exposure Only If They Can Prove ‘Gross Negligence’ or ‘Willful Misconduct’ (MarketWatch)
07/16/2020
Casinos, Insurers Gear Up for Virus-Linked Coverage Fight (Bloomberg Law)
05/14/2020
Who Pays for the Pandemic When Insurance Companies Refuse? (Fortune)
10/21/2019
Restatement of the Law Third, Torts: Defamation and Privacy (American Law Institute)
08/17/2018
INSIGHT: Driverless Vehicles and Manufacturer Responsibility for Accidents—A New Legal Regime for a New Era (Bloomberg Law)
03/08/2018
Arming Florida School Staff Could Expose Them to Suits: Experts (Reuters)
05/03/2017
The NCAA Spent Big on Lawsuit Insurance. Now It's Suing to Enforce Claims (USA Today)
08/31/2016
Accolades: UVA Garners Top-10 National Ranking (UVA Today)
06/27/2016
$46.5 Million Monsanto Verdict: Outlier or Trend? (Bloomberg BNA)
11/17/2014
What Does Your Credit Have to Do With Insurance? (Nerd Wallet)
12/05/2013
Dreading Finals? Profs Share Exam Tips (Tipping the Scales)
07/15/2011
State Seldom Cracks Down on Insurance Companies and Their Adjusters (South Florida Sun Sentinel)
02/09/2010
Debating Insurers' Antitrust Exemption (NPR)
02/09/2010
Fewer Civil Cases Go to Juries Due in Large Part to Cost (The Virginian-Pilot)
02/08/2010
Four Conceptions of Insurance (TortsProf Blog)
06/24/2008
Abraham Authors Book on History of Torts, Insurance (Media-Newswire)
08/03/2007
Flood Victims Lose on Appeal (USA Today )
10/04/2006
Law Professors Receive Distinction: BOV Appoints Three Professors as David and Mary Harrison Distinguished Professors of Law (Cavalier Daily)
05/09/2006
U.S. Senate Fights Deadlock on Medical Malpractice Limit (International Herald Tribune)
12/14/2005
Man Cleared in Rape Sues Accuser (Charlottesville Daily Progress)
09/15/2004
Law Firm Announces Job Cuts/Gentry Locke Rakes & Moore Is Reducing the Number of Attorneys and Staff (The Roanoke Times)
06/18/2004
The Price of Life After 9/11 (The New York Times)
03/25/2004
Development of the Law Suffers as Use of ADR Increases, Critics Worry (Chicago Daily Law Bulletin)
02/22/2002
Firms Seek to Cancel Enron's Insurance (The Washington Post)

AT UVA LAW

Tort Law and the Construction of Change
Professors’ Book on Evolution of Tort Law Shows How Courts Managed Social Change
Professor Explores Financial Implications of Repealing Qualified Immunity
Professors Share Lessons Learned Teaching Online
How Do You Sue in an Autonomous Car Accident?
‘Common Law’ Episode 6: A Future With Autonomous Vehicles
The Future of Law
Automated Driving Needs New Legal Mechanisms, Says Professor Kenneth Abraham
Professor Abraham Has Influenced the Development and Application of the Law Through ALI
Virginia Top-Ranked for Judicial Legal Citations, New Study Shows
Virginia Top-Ranked for Judicial Legal Citations, New Study Shows
Former Legislative Aide Emily Riff '16 Chose UVA Law to Better Understand Legal History
Monahan Joins American Academy of Arts and Sciences
Law Professors Discuss How They Write Exams — And How Students Can Excel at Them
UVA Law Professor Kenneth Abraham Honored for 'Four Conceptions of Insurance'
Faculty Q&A: Kenneth S. Abraham on How BP Oil Spill Revealed Insurance Gaps
"Charge to the Class," with Professor Kenneth S. Abraham
Abraham Authors Book on History of Torts, Insurance
Tort Law and the Construction of Change

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