Kenneth S. Abraham

Stable Divisions of Authority

Wake Forest Law Review

UVA Law Faculty Affiliations


There are more areas of doctrine over which the states have what seems to be permanent or at least long-term disagreement than one might think. In these areas there are divisions of authority that show no evidence of movement or significant change. Here or there a state may move from one camp to another, but for the most part these divisions of authority are stable. Such divisions of authority are exceptions to the proposition that we have "one" law of torts in the United States, at least if by that we mean rules that are virtually identical from state to state.

In this Article I want to focus on these divisions. Not only the existence of divisions of authority but also the reasons that the divisions exist can tell us something about the nature of the tort law we have and about the factors that prevent it from becoming wholly unitary. With one exception, various parts of the Restatement (Third) of Torts cover or discuss all of the subjects regarding which there are divisions of authority with which I am concerned. At some risk of overgeneralizing, I will suggest that the reasons for the divisions that I identify fall into three categories: (1) developmental dead ends, (2) fundamental clashes of values, and (3) concerns about consistency of administration.


Kenneth S. Abraham, Stable Divisions of Authority, 44 Wake Forest Law Review 963-977 (2009).

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