Despite the extensive efforts of legal scholars to define negligence and to explore the relation between negligence and other standards of conduct, the character of negligence liability remains incompletely recognized. In this paper I argue that close examination of the negligence standard reveals that it is more troubled than its apparently central place in tort law implies. Far from being an appropriate default rule to be used when we are unsatisfied with the alternatives, the negligence standard is often flawed even in the ordinary cases involving liability for physical damage that are at its core. These same flaws render negligence an even less appropriate standard in most cases involving intangible loss, where at least until now it has been employed only in exceptional cases.
The first principle of insurance reflects the fundamental lesson of the tragic California fires: you can’t get something for nothing. If expected...
Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like...
The glaring gap in tort theory is its failure to take adequate account of liability insurance. Much of tort theory fails to recognize the active and...
These are momentous times for the comparative analysis of judicial behaviour. Once the sole province of US political scientists, a new generation of...
An upcoming Supreme Court case on Article III standing and disability presents critical questions about the future of litigation that promotes...
Constitutional review is the power of a body, usually a court, to assess whether law or government action complies with the constitution. Originating...
“Dignity” is a rallying cry of social and political movements worldwide. It also appears in legal doctrine and scholarship. But the meaning of dignity...
Donald J. Trump appointed 234 federal judges in his first term. Trump, as is his wont, claims, with an inflated number, that he appointed a record...
On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature...
Legal ethicists, advocacy groups, and politicians have called for greater restrictions on the use of nondisclosure agreements (NDAs) when parties...
Three established torts require the defendant’s behavior to be “offensive” or “highly offensive” in order to be actionable: offensive battery, public...
In recent years, the federal courts have seen a plethora of lawsuits originated by states challenging federal government actions. As a result, there...
This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient...
This casebook aspires to help students understand and think systematically about the techniques of statutory interpretation. It blends exposition with...
This Essay reports data on the impact of Bruen and its predecessor, Heller, on gun rights cases. Put mildly, the impact was substantial, not only in...
It has long been said that the common law "works itself pure" But in the law of torts, not always. This Article reveals and analyzes the...
In New York Times v. Sullivan (1964), the Supreme Court began adopting First Amendment restrictions on liability for defamation and other speech torts...
In this paper we investigate whether gender is associated with the content of judicial opinions in the U.S. courts of appeals. Using a topic model...