Tort law has always been one of the major areas of comparative law. Whereas the law of property, even today, remains on the outskirts of comparative learning, the law of extra-contractual liability has attracted much interest from comparative law scholars. This article considers general clauses versus a variety of individual torts, the scope of protection, the liability for fault, strict liability, and tort law and insurance. It also discusses the choice between the tort system and no-fault insurance schemes. Finally, it addresses the challenges raised by digitalization. Regardless of whether one agrees or disagrees with the solutions offered, the principles and the commentaries thereon certainly provide a valuable starting point for further scholarly efforts and critical discussion.
This chapter examines the processes of litigation arising from medical malpractice liability, changes in tort doctrine, and judicial responses to medical injuries. It first considers physician liability, with emphasis on evidentiary requirements for proving the medical standard of care and how expert testimony on the standard of care has increasingly relied on practice guidelines that articulate the parameters of the standards of care. It then turns to the Affordable Care Act with its emphasis on “best practices” and “practice guidelines,” along with defenses that are available against a malpractice suit. The chapter also looks at the importance of informed consent in promoting patient sovereignty in medical decision-making and alternative dispute resolution as a tool for reducing the risks of malpractice litigation and jury trials. Finally, it discusses the liability of hospitals, taking into account the agency doctrine and corporate negligence as well as nonhospital system liability and nonphysician liability.
This article explains the way tort law brings the fundamental questions together. It supposes that the question of how people treat each other and the question of whose problem it is when things go wrong are at bottom the same question. The main task in doing so is to explain the sense in which tort law predicates liability on responsibility. Tort law articulates norms of conduct and resolves conflicts in the context of disputes between private parties. This article begins with the two basic normative principles that tort law incorporates. The relevant notion of responsibility depends on norms of conduct, and much of the article is taken up with developing that notion and explaining why it has features that are strikingly different from other familiar conceptions. It focuses largely on responsibility in negligence, both in terms of a general structure and particular doctrines.
The intersection of American tort law and the sports industry has produced some interesting and distinctive jurisprudence. Tort rules are, at times, applied in peculiar ways to the sports industry (and to recreational sports). Some of these are well known to most law students—for instance, the “baseball rule” which, at least for most of the twentieth century, appeared to immunize stadiums and teams from liability for injuries caused by batted balls. Other applications may be surprising even for those trained in law—for instance, a court’s discussion of whether potato sack racing is a contact sport. This chapter explores the ways in which tort law has been applied to sports cases, and at times, adjusted to suit the distinctive features of injuries connected to sports.
John C. P. Goldberg
Twentieth-century tort scholarship has been dominated by the Holmesian conception of tort law as accident law, and accident law as a form of regulatory law. American and Commonwealth judges, however, have never fully accepted it. Moreover, in the last twenty-five years, some tort scholars have sought to revitalize the older common law conception of tort as a law of personal redress for mistreatment by others. For reasons examined in this article, this debate between the regulatory and redress models of tort has largely played itself out as a debate over the proper characterization of one particular tort, namely, the tort of negligence.
This chapter discusses tort law and how it applies to the risks posed by emerging technology. Tort law’s role here is significant. But how does tort adapt to injuries caused by technological innovations, and how should it react? With the increasing pace of technological advances, are the inherited conceptual structures of tort law sufficiently adaptable to both current and yet-unknown developments, or are novel statutory solutions required? We must also ask if tort liability is ultimately able to reconcile the competing demands of compensation, deterrence, and innovation. These questions are considered in various contexts including product liability, internet speech, and the prospect of ‘driverless cars’.
The emergence of unjust enrichment as a cause of action in its own right in England and Australia sparked a remarkable debate between, on the one hand, civil and common lawyers, who were confronted with thinking which was often completely outside the paradigm to which they had become accustomed, and, on the other hand, between common lawyers inter se about the merits of the various ways in which unjust enrichment may be understood and organized. At the heart of this debate was the struggle of the common law to confront and deal with the deficit caused by its reliance solely on ‘unjust factors’ to make sense of enrichment liability without taking account of the notion of ‘absence of basis’. This chapter argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment by uncovering the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.