Mar 12, 2026 John C.P. Goldberg
Kenneth S. Abraham,
The Liability Revolution That No One Saw Coming, 78 Fla. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 31, 2025).
At the outset of his very interesting article, The Liability Revolution That No One Saw Coming, Kenneth Abraham, one of our most distinguished scholars of tort and insurance law, posits an irony concerning predictions about law. As Holmes famously observed, law practice is all about anticipating judicial decisions. Yet, according to Abraham, lawyers – and adjacent actors including insurers and law professors – are not expected to predict, and have not predicted, broader shifts in the legal landscape, some of which have had huge significance.
The bulk of the article discusses three broad twentieth-century legal developments: (1) the rise of mass tort law; (2) the expansion of insurers’ coverage costs for liabilities generated by environmental and tort law; and (3) the conclusion of the expansionary phase of American accident law. According to Abraham, nobody in law saw these important developments coming.
Mass tort litigation involving widely dispersed injuries first emerged in the 1970s, in part as a delayed reaction to workers and consumers having, since mid-century, been increasingly exposed to toxins in workplaces and products. The state of the legal profession also mattered: until the late 1970s, the plaintiffs’ bar had yet to develop mechanisms through which they could launch and coordinate mass litigation. For these and other reasons, according to Abraham, the era of mass torts that commenced with DES and Agent Orange came without warning.
Although Abraham’s second example – the expansion of insurers’ indemnification obligations and high-stakes litigation over coverage issues – followed closely on the emergence of mass torts, its main driver, he says, was the enactment of environmental statutes, particularly CERCLA in 1980. It imposed sometimes massive clean-up costs on firms deemed responsible for toxic waste sites. Around 1960, insurers had made the fateful decision to revise standard language in commercial general liability (“CGL”) policies, which extended coverage beyond one-off accidents to harms incurred over time. This in turn undermined the protection provided by annual coverage ceilings. Because insurers did not predict the rise of these massive new liabilities, they found themselves saddled with coverage claims of unexpected magnitudes.
Abraham’s third example is the abrupt closure of the period in which courts and legislatures tended to expand the grounds of liability for accidents. It opened around 1915, marked by judicial decisions such as MacPherson v. Buick, and the legislative adoption of workers’ compensation schemes, and continued until about 1980. That was the year in which the California Supreme Court, in Sindell, adopted market share liability for DES cases. Although many saw Sindell as pointing to a new world of broad, probabilistic liability, it proved to be a swansong. Already in the air at the time, the mantra of “tort reform” would quickly come to dominate the landscape. According to Abraham, the closing of the liability frontier was another epochal shift that defied expectations as to where tort law was headed.
What explains these failures? For the most part, Abraham is not casting blame. Predictions require an evidentiary basis, and, in his view, the clues that would have enabled observers to anticipate the foregoing developments were meager. He also posits that lawyers by training tend to focus on concrete, realized problems rather than ill-defined possibilities – an inclination that is reinforced by their (perhaps undue) optimism about the ability of legal institutions to ameliorate problems after the fact. Also making prediction difficult is the fact that each of the developments discussed, though nationwide in impact, often resulted from decentralized, state-by-state developments.
The article concludes with some brief suggestions for improved prediction. Funding for predictive research comparable to the support once provided to economic analysis of the law might help. Mega-insurers could also conduct and share their own research. And insurers could issue policies that provide coverage on a multi-year rather than annual basis, which would force them to make predictions about near-term developments.
Abraham’s article raises many intriguing questions. It invites historians to consider further how lawyers, scholars and others were thinking about tort and insurance law in the 1960s and 70s. For social scientists and philosophers, it poses in a concrete setting the perennial issue of whether historical events are ‘caused’ by prior occurrences in a manner comparable to physical phenomena, such that they can be predicted. For those studying the legal profession and for members of the legal academy, the article prompts consideration of whether persons with legal training tend to suffer from certain forms of myopia.
Of course, any assessment of lawyers’ predictive skills will turn largely on a description of what is they are supposed to have predicted. It is one thing to suggest that they (and others) might do better at predicting specific doctrinal trends (e.g., the shift from contributory negligence to comparative fault). It is another to suggest that they should do better at predicting broader changes in which the law gets swept up, such as the Reagan Revolution. Why would anyone expect lawyers to be able to read the latter sort of tea leaves? Likewise, would anyone today fault insurers operating around 1960 – or 1990 – for failing to anticipate that climate change would produce massively destructive wildfires in California and elsewhere? In sum, a more precise account of the developments in question is crucial to an assessment of Abraham’s contentions.
In reverse order from Abraham’s presentation, one can start with the closing of the liability frontier. In what sense did it “close”? Yes, the push for no-fault fizzled, and damage caps and several-only liability for indivisible injuries are now commonplace. However, blockbuster personal injury litigation continues. And it has done so in part because some courts have identified new doctrinal bases for liability (public nuisance, anyone?). So perhaps those in the 1960s who supposed that plaintiff-friendly doctrines would continue to generate litigation and liability on a uniquely American scale were spot-on.
As for insurers, to what exactly were they blind? That Congress would impose some form of remedial liability for toxic waste sites? Or that it would adopt a very aggressive regime of retroactive, strict, joint-and-several liability? Or that remediation expenses would turn out to run into the tens of billions?
With respect to mass torts, even in 1960, there were signs pointing to at least certain iterations of that phenomenon. As Abraham notes, leading torts scholars had then largely coalesced around the idea that tort law’s primary function was to distribute losses and help the injured get back on their feet. While many posited the eventual replacement of accident law by compensation schemes, plaintiffs’ lawyers, aligned with liability insurers, were busy resisting top-down, ‘statist’ approaches to compensation, while also developing new schemes of cooperation to enable them to expand recoveries for larger sets of injury victims. If one adds to this mix the experience of civil rights litigation, in which federal courts had functioned as institutional reformers, there may well have been a basis for envisioning that some judges would use the open-ended rules of modern civil procedure to enable aggregate litigations to function as event- or industry-specific compensation schemes. Indeed, even before the 1966 amendments to the federal class action rule, one can find scholars considering whether “mass torts,” identified as such, could be appropriately handled through class actions.
On the other hand, modern mass tort litigation in its precise present form was probably not something that anyone back in 1960 could have envisioned. Today, it carries with it a populist and quasi-punitive character that was alien to mid-century, tort-as-compensation conceptions. And increasingly, it does not take the form of administrative schemes run by managerial judges, but instead operates as a marketplace for lawyers to strike bargains operating under the faintest shadow of the law. The resulting patchwork of mega-judgments and settlements would, I think, surprise even keen mid-century observers of the tort system. So, again, the validity of Abraham’s thesis rests largely on a specification of what it is that was supposed to have been predicted.
One final thought: any assessment of lawyers’ predictive powers needs to take into account that their predictions are sometimes embedded in litigation strategies designed to make those predictions come true. In 1960, probably few would have imaged that the post-Erie Supreme Court would get involved in state tort law. Yet, as the Burger Court morphed into the Rehnquist Court – and with New York Times v. Sullivan having demonstrated that constitutional law could be used to skirt Erie – savvy lawyers predicted that there was a coalition of Justices prepared to conclude that aspects of tort law – such as punitive damages – were sufficiently ‘out of control’ that the Court needed to step in. This was not just prediction: these same lawyers helped form that coalition through a methodical litigation campaign. Here, as in other contexts, ‘cause lawyering’ involved sensing the zeitgeist, predicting where its winds might blow, and harnessing those winds to lead the law toward a particular destination.
As the foregoing discussion I hope demonstrates, Professor Abraham’s rich article is to be commended for raising these and other questions about the different senses in which “prophecies of what the courts will do in fact” can and should be central to legal analysis.
Feb 10, 2026 Ronen Avraham
What happens when a self-driving car kills someone and there is no human driver to blame, no detailed public regulation to point to, and a jury that has never heard of ISO 26262 or UL 4600? Who decides what “reasonable care” means when safety choices are embedded in code, sensors, and validation protocols rather than in a driver’s split-second decision?
In his insightful paper Swords and Shields, Gary Marchant argues that in this world, private technical standards will quietly become the real baseline for tort law. Standards written by SAE, ISO, UL, IEEE, and other standard-setting organizations—largely unfamiliar to most people—will serve as shields for autonomous-vehicle (AV) manufacturers who comply with them, and as swords for plaintiffs when manufacturers ignore them.
The core claim is simple but powerful: compliance with well-recognized AV standards should be treated as a partial shield against negligence and especially punitive damages, while noncompliance should be a partial sword suggesting unreasonable conduct.
The pacing problem and the AV standards ecosystem
Marchant begins with the “pacing problem”: technology moves faster than government. AV technology is advancing rapidly and detailed public regulation is thin and, in the case of NHTSA, often deliberately hands-off. As Marchant describes, NHTSA’s central concern is not only lack of information and expertise, but the fear of prematurely locking in design choices and limiting innovation in a field that might ultimately reduce accidents dramatically. That mix of uncertainty and capacity constraints, and perhaps even anxiety about being blamed for stifling life-saving technology helps explain why the agency has preferred flexible guidance and voluntary frameworks over detailed, binding AV safety rules.
Into this vacuum step standard-setting organizations. Historically, private standards handled dull but important things: thread sizes, plug shapes, inter-operability. Today, they increasingly handle governance: risk management, safety, data security, and even aspects of AI ethics.
In the AV context, Marchant describes a dense and growing ecosystem of standards, including:
- Functional safety standards (such as ISO 26262), focused on preventing catastrophic outcomes from random hardware and software failures.
- Safety of the intended function (SOTIF) standards (such as ISO 21448), dealing with hazards arising even when systems work “as designed.”
- System-level AV standards (such as UL 4600), covering how to design, validate, document, and argue for the safety of autonomous products.
These standards are not mere definitions. They prescribe how AV manufacturers should do hazard analysis, simulation and real-world testing, monitoring, and updates. If courts are going to say anything meaningful about whether an AV design was “reasonable,” these standards are the obvious place to start.
Swords and shields
Marchant’s illuminating contribution is to explain how these standards should function in tort litigation.
On the shield side, he argues that compliance with recognized AV safety standards should weigh heavily against findings of negligence, design defect, or punitive damages. The argument is intuitive: if a manufacturer has followed a serious, technically sophisticated, multi-stakeholder safety framework, it is hard to say it acted with the kind of disregard that punitive damages are supposed to punish.
On the sword side, noncompliance with these standards should count as strong evidence for negligence or defect. As AV standards become the de facto safety baseline for responsible actors, ignoring them without a very good reason looks increasingly like a failure to use reasonable care.
Crucially, for Marchant both sword and shield are partial, not absolute. Compliance is presumptive but rebuttable evidence of due care; noncompliance is presumptive but rebuttable evidence of lack of due care. A jury can still find a compliant manufacturer negligent in an extreme case (for example, if a standard is clearly outdated or reflective only of industry capture), and it can still find a noncompliant manufacturer non-negligent if it has adopted an even better, more up-to-date safety regime. This way of applying the standards helps incentivizing conformance with them by AV manufacturers.
The treatment of punitive damages is sharper. Marchant thinks compliance with AV standards should almost always block punitive damages, while serious noncompliance should be a strong basis for them. In other words, standards play a special role in sorting ordinary negligence from conduct that deserves moral condemnation and extra deterrence.
Private standards as proto-regulation: a comparison
Marchant’s story fits into a broader literature on using private actors to structure tort duties. In earlier work on Private Regulation, I proposed a “Private Regulation Regime” (PRR) in medical malpractice. There, private expert entities would write evidence-based clinical guidelines under a statutory framework. If physicians complied with these guidelines, they would enjoy an absolute safe harbor from malpractice liability; if they deviated, the guidelines would serve as a kind of “blunt sword” for plaintiffs.
Comparing Marchant’s proposal with that kind of private regulation regime helps to clarify what Swords and Shields is, and what it is not.
The first contrast is the institutional ambition of the proposals. The PRR is a full-scale architecture: the law defines who the private regulators are, how they are funded, how they internalize the social costs of too-risky or too-conservative guidelines, how their guidelines are evaluated ex ante from a social-welfare perspective, how intellectual-property rights are handled, and how guideline writers themselves are held liable if their standards are inefficiently dangerous. In return, compliant physicians get complete immunity from malpractice suits.
Marchant does not go that far. He works with the standard-setting institutions we already have without trying to re-engineer their incentives from the ground up. Standards are treated as sophisticated custom, not as the output of a dedicated private regulator charged by statute with optimizing social welfare. That institutional modesty is part of the reason he stops at partial swords and shields.
Second, who is being protected? The PRR addresses individual physicians facing enormous pressure to practice defensive medicine. The safe harbor is partly about liberating them from ex post second-guessing that overweighs bad outcomes and ignores the beneficiaries of cost-effective care. Marchant focuses on AV manufacturers: large, sophisticated firms already accustomed to complex regulation and liability exposure. Giving them full immunity merely for complying with self-influenced standards would raise more serious under-deterrence and capture concerns.
The third consideration is whether the system is designed ex post or ex ante. A central move in private regulation is to design the guidelines themselves under an explicit ex ante framework: guideline writers must internalize the costs of harm and of wasteful safety measures before accidents occur. Crucially, the PRR’s strict ex ante focus is designed to eliminate cognitive biases inherent in the tort system (e.g., Hindsight Bias and Identifiable-Other Effect) by holding the guideline writer strictly liable. Marchant’s approach uses ex post standards merely to moderate these biases, making it a more cautious step than a full private regulation regime.
The PRR further enforces systematic knowledge production by explicitly denying the guideline writer the “State of the Art Defense,” thereby forcing the continuous scientific updating of standards
In Swords and Shields, Marchant takes the standards mostly as given and asks: Given what these institutions are already doing, how should courts treat their work when AV cases arise? His answer is doctrinal and incremental rather than systemic and reconstructive.
Seen this way, Swords and Shields can be read as a “proto-PRR” in the AV context, a first step in treating private standards as quasi-regulatory baselines for tort law, without yet building the complete private regulation machinery around them.
The worries Marchant takes seriously
Marchant does not pretend that outsourcing so much to private standards is costless. He flags several important concerns.
- Capture. Standard-setting processes are formally open and multi-stakeholder, but in practice industry often dominates. If AV makers push for weak standards and then claim a shield by complying with them, courts will be asked to ratify captured norms. Marchant’s helpful answer is that the sword-and-shield effect should depend on the procedural quality and perceived legitimacy of a standard, not just its existence.
- Fragmentation. AVs face multiple overlapping standards, which are sometimes inconsistent. Which one is the baseline? Marchant suggests looking at industry uptake, credibility of the SSO, and fit with the technology at issue. The more a standard looks like a real, widely accepted baseline, the more weight it should get.
- Partial compliance. Manufacturers may comply with some standards and not others, or with some parts of a standard and not others. This will make AV litigation messy, but not unmanageable. Here, too, the sword and shield are partial: the pattern of compliance becomes grist for experts and juries.
- Access and copyright. Because many standards are paywalled and copyrighted, simply putting the standard in front of a jury can be surprisingly difficult. Marchant notes that courts and legislatures may have to rely on fair-use doctrines, compulsory licensing, or other solutions if standards are to be used routinely in litigation.
Marchant gives us an important starting place for a conversation about standards governing new technologies. Consider the following questions: First, once courts treat AV standards as central evidence of reasonableness and of entitlement (or not) to punitive damages, the design of the standard-setting process itself becomes crucial. Marchant hints at this but does not fully explore it. If private standards are going to carry this much legal weight, we may eventually need to think about borrowing some of the tools from more ambitious private regulation proposals: ex ante evaluation and perhaps even some form of liability for standard-setters who get it badly wrong.
Second, AVs are likely just the beginning. Any domain with rapid technological change, thin public regulation, and dense private standards, such as medical AI, robotics, and some areas of fintech, will be tempted to adopt the “partial sword, partial shield” approach Marchant sketches. The hard question, which this paper invites rather than fully answers, is where to draw the line between incremental doctrinal adaptation and full-blown private regulation regimes.
At the end of the day, Swords and Shields offers a clear, thoughtful account of how courts should use private standards to decide liability for autonomous vehicles. It shows how tort law can, at least for now, ride on the back of private technical expertise without formally abandoning negligence or products liability. Whether future work will push toward more structured private regulation or stay with Marchant’s more modest swords and shields, his article richly deserves a reading.
Jan 13, 2026 Gregory Keating
In an illuminating article, A Novel Tort Duty for Platforms that Intermediately Produce Real World User Interactions, Jordan Wallace-Wolf proposes that we recognize that a distinctive duty of care should attach to internet platforms that “cultivate” markets. Ridesharing Apps— Uber and Lyft— are the paradigm platforms that he has in mind. Professor Wallace-Wolf’s perceptive proposal warrants careful consideration. It puts its finger on properties of the interactions that platforms promote that courts and other commentators have not identified as clearly. And its proposed liability rule responds to those properties in an attractive, justified way.
Internet platforms puzzle courts and commentators, and for good reason. For one thing, internet platforms come in myriad forms. Zoom enables people who are not in the same room to speak face-to-face, but the fact that it uses the internet to connect people who might otherwise speak by phone does not appear to present any significant or special legal issues. The internet infrastructure enables interactions that would not otherwise be possible— and is the medium through which those interactions take place— but Zoom’s enabling of the interaction does not, by itself, give rise to any distinctive responsibility for the content or the course of the interaction. No one would think that Zoom bears responsibility for a bank heist merely because the criminals involved happened to plot the heist over a Zoom connection.
But platforms like Uber and Lyft are different: they don’t just connect users, they create markets. And it is not clear what we should make of this, if anything, legally speaking. Perhaps these platforms are no more responsible for the real-world interactions they enable than Zoom is for the conversations that people hold by accessing its technology. Perhaps, in both cases, the Internet enables a familiar phenomenon, namely, a two-sided market. And perhaps there is nothing legally special about internet-enabled two-sided legal markets. Just as Visa’s business is connecting retailers and sellers, and just as Visa benefits from being used by more shoppers and more sellers, perhaps Uber and Lyft merely connect people who need rides with people who need riders. (P. 454.)
But perhaps not. Courts have found the matter anything but obvious. Multiple legal frameworks might be brought to bear on the internet platforms of particular interest to Professor Wallace-Wolf, and many of them have been. Uber and Lyft are Apps. Like other Apps, they have been treated as products. Professor Wallace-Wolf reminds us of Brookes v. Lyft, a Florida decision classifying Lyft as a product and entertaining the possibility that it is a defective one because it requires drivers to take their eyes of the road. (P. 442.) Another court is in the process of considering deploying product liability law to specify rights and responsibilities with respect to sexual assaults. Alternatively, assaults and other torts arising during transport might be analyzed through the lenses of vicarious liability. Perhaps Uber drivers are agents (employees, or participants in a joint enterprise, or joint venturers) of Uber and Uber is therefore responsible for the torts they commit in the course of ferrying passengers about. If we balk at assimilating Rideshare Apps to products because rides fit more readily into the category of “services,” we might characterize them as a new kind of “profession,” or as a new form of common carrier. Rideshare Apps resemble utilities in their apparent tendency towards monopoly, and they provide the very service that the most canonical of common carriers provide. And “common carrier” liability is a longstanding and legally rich framework. Last, but surely not least, we might bring general negligence liability to bear and ask if the distinctive character of a Ridesharing App brings a duty of care in tow and, if so, what the contours and scope of the resulting duty are.
All of these categorizations are plausible. All of them have been explored by commentators, and most of them have been explored by courts. Each of them might be appropriate in some circumstances. Professor Wallace-Wolf does a deft job of describing them and showing how each picks up on particular salient properties of Rideshare Apps. His distinctive contribution, however, is to put another possibility on the table. A Novel Tort Duty for Platforms takes general negligence analysis as its starting point, pinpointing the faults in the prevailing applications of general negligence law and, taking indirect inspiration from Bob Rabin’s felicitous idea of “enabling torts,” proposes that we respond to the special properties of Rideshare Apps by recognizing a duty of care with respect to the social interactions that those Apps sponsor.
When courts bring general duty analysis to bear, they focus on the relationships of the Apps to one party to the interaction. If the alleged wrongdoing is an assault on the customer, courts focus on the relation of App to customer. If an assault on the driver is at issue, courts focus on the relation of App to driver. This eclipses the distinctive way in which Rideshare Apps differ from standard two-party markets: Rideshare Apps create the market for the interactions that they broker. Visa does not. The duty of care that responds to this special property of Rideshare Apps is a duty to sustain the integrity of the interaction—to underwrite the trust that is essential to its existence. This is, to be sure, a vague idea. Wallace-Wolf writes of “intermediating” the relationship. (Pp. 456-60.) But these vague phrases orient us in the right way and stimulate us to think about responsibility in a fruitful way.
On the one hand, Wallace-Wolf’s approach draws on the existing resources of tort law. On the other hand, it doesn’t force Rideshare Apps into the Procrustean bed of a preexisting category that can be made to fit them only with a bit of torturing. Instead, it uses the existing lenses of the law to bring into focus and respond to a central property of Ridesharing Apps that makes them distinctive but legally elusive. I would amend Wallace-Wolf’s idea of “intermediation” a bit and say that the Apps both constitute the market for the interactions at issue, and sponsor, or underwrite, the ensuing relationships. By dialing in the possibility of a duty to sustain the interactions that they sponsor, Professor Wallace-Wolf’s A Novel Duty for Platforms has significantly advanced our thinking about a novel and important domain of tort liability, and done us all a great service.
Dec 3, 2025 Sandy Steel
Nico Cornell’s terrific book Wrongs and Rights Come Apart rejects the commonly held view that moral wrongs are simply moral right violations. Rather, wrongs and rights ‘come apart’: there can be wrongs without right violations and right violations without wrongs.
The book proceeds by providing a range of powerful examples from law, philosophical writing, and literature to make its case. How can we tell, in these examples, whether a person has been wronged but their rights not violated? Cornell provides an account of the characteristic features of an entity holding a right: (1) the power to waive the correlated duty, (2) the fact that certain conduct can be demanded by that person, (3) enforceability of the correlated duty, (4) the presence of a special kind of reason (a trump or an exclusionary reason), and (5) a distinctive phenomenology. (Pp. 14-15.)
None of these is argued to be necessary or individually sufficient; instead they are characteristic features; each provides evidence of the fact that a duty is grounded in, or correlated with, a right. If Cornell’s examples show that a person is wronged, yet (1)-(5) are all absent, then (assuming (1)-(5) give us all of the characteristics of rights) we have wrongs without right violations. (Pp. 16-17.)
It is impossible to do justice to the nuance and richness of the book in a Jot. I briefly outline and comment on some examples Cornell employs to prise apart wrongs and right violations, leaving aside his argument that there can be right violations that are not wrongs.
Intimate promises. For Cornell, promises to have sex or to love do not give rise to a right that another have sex or love, but the non-fulfilment of the promise wrongs the beneficiary. In relation to such promises, demandability and enforceability – features (2) and (3) above – are not present. One may not demand that a person perform their promise to have sex or enforce such a promise. Yet, if the promise is not fulfilled (without justification), it seems that the person has some kind of moral complaint. Cornell’s explanation neatly clarifies this apparent difference between the ex ante and ex post moral position: the promisee stands to be wronged, yet lacks a right to performance.
Three-party cases with unforeseeable victims. The basic structure of this kind of example is: A violates B’s right, with an unforeseeable harmful effect on C.
Palsgraf. Railroad employees (A) carelessly thrust a person (B) onto a train, with the result that their firework-containing package drops and explodes, causing a set of scales at the end of the platform to fall over and harm Palsgraf (C).
Overheard Lie. Suppose that you (C) overhear your coworker (B) talking to a customer (A) at work. Your coworker tells the customer that the South Bridge has been fixed and is now operational. Later that day, you are suffering from an asthma attack and need to rush to the hospital. You try to take the South Bridge only to find it closed, and you end up in a great deal of distress. Your coworker later tells you that he was lying because he does not like the customer. (Pp. 31-32.)
About both cases Cornell’s view is that C is wronged, but C’s rights are not violated. C is wronged because “[t]he familiar package of emotions and practices would seem to apply: resentment, apology, forgiveness, and so on.” It would be apt for Palsgraf to resent her having been injured through another’s carelessness and for the latter to give an apology; likewise, the co-worker in Overheard Lie ought to apologise for their lie that caused you great distress. C’s rights are not violated, however, as C, being unforeseeable, cannot figure in A’s deliberations about what to do, thus (I think) undermining (3), and perhaps (2).
Warranties. One of Cornell’s most intriguing putative examples of rightless wrongs is breach of warranty:
Suppose that I’m your roofer. I’ve done various repairs for you, and now you’ve hired me to replace your roof. At the end of the job, I promise you that the roof will last for at least twenty years. It fails miserably the next winter. On these facts, I do owe it to you to replace the roof and indemnify you for your losses. But that would not be performance; it would be a remedy for a failure. (P. 71.)
You are wronged, Cornell claims, because (i) “there would be a moral residue: even if I replace the roof, I still owe you an apology”; (ii) it would be normal to describe the promisor as not having kept his word; (iii) if it were merely a promise to indemnify, there would be nothing wrong with saying ‘I promise that the roof will last twenty years’, while knowing that it won’t last. (P. 72.)
Yet, Cornell argues, it is unclear how the promise that the roof will last for twenty years grounds a right. If rights necessarily constitute reasons capable of entering deliberation (3), the promise does not ground a right, since it does not specify any action and reasons are, well, reasons for action. True, the roofer has some reasons because of the promise—for instance, a reason to take steps to ensure that he can fulfil any liability that may arise for its non-fulfilment. But this is not a reason generated by there being a right. If the roofer had promised to repair if the roof did not last 20 years, then the roofer would have exactly the same reason to take steps to ensure that he can fulfil any liability so arising. As Cornell sums up: “…though it can be the basis for a wrong, the warranty may not generate any action-shaping duties. It’s not about action. It’s about a fact obtaining in the world.” (P. 71.)
Two quick responses to the first two categories of example. First, it does seem that intimate promises ought still to figure in deliberation, and not merely as a vanilla reason to be weighed in the balance with others. If a step-parent promises their partner that they will love the partner’s child, the promise gives the former at least a reason to try to love the child, and that reason is not merely to be weighed in the balance with others. Thus while it may be that this promise is not enforceable or demandable, it has a distinctive reason-giving importance; a properly-motivated promisor in this position will aptly feel a sense of moral failure if they are unable to live up to the reasons given by the promise, and the promise ought to figure in their deliberative horizon. In short, the promise still has the kind of reason-giving force that promises generally have, and so if that reason-giving force of a promise makes it right-grounding, then there is a right here.
Second, as to Palsgraf, consider the position if Palsgraf could see the heavy set of scales about to topple on her, and she could somehow redirect them so that they fell on the employees. Redirecting the scales seems permissible. So the unforeseeable third party has a special moral liberty to impose a right-infringing burden on the employees (special because her say-so seems to affect the permissibility of others acting on that liberty on her behalf). Thus, if one is tempted by the verdict that there is a moral wrong in this scenario, this is at least consistent with the enforceability characteristic of right-holding.
As to Overheard Lie, it is interesting to compare one’s (my) intuition in a variant in which the co-worker carelessly misrepresents the situation. Here it seems less clear that C has a legitimate grievance against B. Notably, the law tends to expose persons to liability in respect of unforeseeable harms when they behave with high culpability. Here one might say that everyone has a right not to suffer serious distress as a result of a lie. The foreseeability of reliance on the lie is neither here nor there.
Cornell’s warranty examples are the most difficult for a defender of wrongs-as-right-violations, since if we accept the intuition about the examples, the defender needs to decouple rights from reasons for action. But before we can trust intuitions about the roofer case, it would be useful to modify the example. One distracting feature is that the roof ‘fails miserably’ after a short time when it was guaranteed for twenty years. This inclines the reader to believe the construction was careless or that representing that the roof was of high quality was itself careless. Further, the example implies that there was at least a representation that the roof was sound and leaves open whether this was relied upon.
A modified version:
Suppose that I’m your roofer. I’ve successfully done various repairs for you, and now you’ve hired me to replace your roof. At the end of the job, which has been completed according to the highest standards of craft, I explain that, over the past twenty years, extensive research has revealed that roofs constructed in this way have never failed, though it is not entirely impossible, of course, that one will, and so I say “I am happy to promise you that the roof will last for at least twenty years.” You reply: “Well, I don’t believe that roofs of this kind will last that long, but I’m nonetheless happy to accept your promise.” The roof fails in 10 years, due to a weakness in one piece of timber that was undetectable.
Although the law holds that there is a right to the roof’s lasting for 20 years, morally, it seems inapt to blame or resent the builder if it did not here, or for the builder to feel guilt. The only ‘residue’ seems to be a distinctive reason to regret, and express regret, that things did not occur as promised. Perhaps when we make a promise in relation to a state of affairs (without promising to bring about the state), we establish a special agential connection with the non-occurrence of the state of affairs, such that we have special reason to regret its non-occurrence, and perhaps to communicate our regret to the beneficiary. Still, this is not moral wronging. The law’s describing warranties in terms of rights and duties to states of affairs is explicable in practical terms: by encasing the occurrence of a fact in a contractual duty, the parties can straightforwardly assent to a measure of compensation if the state of affairs does not occur, and can import other rules that hinge upon breach.
Whatever one makes of these last points (and Cornell has many more examples to contend with!) the book amply succeeds in mounting a sophisticated challenge to orthodox thinking on the relation between right violations and wrongs; it deserves to be widely read.
Nov 3, 2025 Cristina Tilley
Tom Baker,
What Is Insurance for Tort Law?, 111
Va. L. Rev. __ (forthcoming 2025), available at
SSRN.
It is a truth rarely acknowledged by tort theorists that personal injury lawyers in possession of good plaintiffs must also be in want of insured defendants. Tom Baker acknowledges that truth in What is Insurance for Tort Law?, and follows it to some bracing conclusions. Baker’s article is a welcome rejoinder to Kenneth Abraham and Catherine Sharkey’s recent call to treat insurance as a constitutive part of tort doctrine and practice. Abraham and Sharkey embrace liability insurance as an economically “beneficial” aspect of tort practice that “spreads the risk of tort liability, []helps to promote safety, ensures compensation for some tort victims who would otherwise not be compensated, and enables planning and budgeting . . . by potential defendants.” Not so fast, Baker warns. When an insurance eminence like Baker issues a warning, it’s a good idea to listen. Yes, he agrees, tort and insurance are in the symbiotic business of distributing compensation. But Baker argues that tort should aspire to non-economic goals like corrective justice, and then artfully demonstrates how yoking injury outcomes to insurance pricing mechanisms can hobble that goal.
Baker begins with a frank and comprehensive look at how liability insurance influences tort in action. Because insurance “provides the money that changes hands through tort claiming,” (P. 8) lawyers who earn contingency fees are reluctant to sue uninsured defendants and insured defendants typically cede control over litigation to insurers. And because the universe of tort cases is determined by the infrastructure of insurance, tort doctrine has developed in ways that reflect and amplify the interests of insurers. For example, insurers who manage large pools of litigation are positioned to cherry-pick cases as vehicles for friendly changes to procedural and doctrinal rules. (Pp. 12-15.) Further, by tracing verdicts back to centralized insurers rather than to decentralized defendants, lobbyists can depict plaintiff compensation as an “insurance crisis” that justifies anti-plaintiff legislative reforms like damage caps, the restriction of joint and several liability, and limits to the collateral source rule. (Pp. 17-18.) Most notably, plaintiffs lawyers fill their rosters with clients whose claims can “plead into” existing insurance. Consequently, they prioritize cases involving premises liability, bodily injury, and property damage and devalue cases involving pure emotional or economic loss. (P. 15.)
So insurance lurks in the offices and courtrooms where tort is practiced. Does that reality make tort more – or possibly less – likely to fulfill any of the theoretical objectives that scholars assign to it? If tort’s primary goal is compensation, Baker grants, insurance has helped achieve it by “supercharging the claims that can be made for tort law as a compensation system” in which an aggregation of tort claims spreads losses throughout a networked economy. (P. 19.)
But Baker points out some difficult corollaries that might follow the systemization of tort compensation. For one thing, it can tempt some judges to widgetize individuals as components of a “mechanized society,” thereby casting doubt on the legitimacy of compensation for intangible suffering. (P. 20.) For another, once compensation is centralized in systemic fashion, it can just as easily be reduced as enhanced through centralized means (see his observations about cherry-picking and tort reform). (Pp. 20-21.) If, in contrast, tort’s primary objective is deterrence, Baker concludes that the insurance infrastructure can both advance and undercut that goal. At least as a matter of theory, insurance companies maximize profit by paying fewer claims, and reduce payment obligations by incentivizing their insureds to adopt loss-prevention practices, thus producing deterrent effects. On the other hand, he observes that actors relieved of a personal obligation to pay judgments might grow indifferent to the costs of the injuries they impose, thus undercutting deterrent effects, though they might still remain sensitive to the disapproval of their community peers. He cautions against bold claims of insurance-driven deterrence, noting that “how any of this falls out in practice is an empirical question.” (P. 23.)
Baker treads familiar ground in evaluating the influence of insurance on compensation and deterrence. No surprise, as both goals stem from academic interest in the human relationship to money – whether as a proxy for well-being or as a driver of behavior. He then breaks exciting new ground by asking how insurance might advance or undercut tort goals that concern the human relationship to other humans. When it comes to tort’s corrective justice powers, Baker credits insurance for making possible the payment of an interpersonal debt the defendant is found to owe a plaintiff he has injured. (P. 25.) At the same time, he reminds us, when insurance is unavailable for select wrongs, or is inaccessible to select populations, it is making impossible the payment of otherwise valid interpersonal debts. (P. 25.)
The theoretical goal of retribution, too – imposition of consequences for morally culpable conduct – is fraught by the contours of liability insurance. Baker claims that tort facilitates retribution when a private plaintiff sues on behalf of the larger community. (P. 26.) So if the defendant is found to owe the community some performance of remorse, externalizing that obligation onto a corporate insurer runs counter to the retribution goal. This concern, Baker contends, explains why so many states outlaw insurance for punitive damages, intentional torts, and criminal fines. (P. 25.) But these rules may inhibit actual compensation – and metaphorical retribution – for plaintiffs injured by intentional or egregious conduct.
Baker’s ultimate quarrel, it seems, is with the justice theorists’ habit of treating insurance as “outside the considerations that should determine tort law doctrine.” (P. 36.) Glib refusals to consider the role of insurance, Baker reminds us, artificially sanitize justice accounts of tort. The truth is that insurance companies need not and do not make their products universally or affordably available to all of the putative defendants in the country. Some communities and members of some demographic groups simply cannot access insurance. (P. 37.) Relatedly, some wrongs are not insurable in today’s market. (P. 37.) Consequently plaintiffs whose well-being suffers in insurance-poor communities are denied corrective justice thanks to the needs of insurance balance sheets. Corrective justice theorists do not claim to be interested in state-driven distribution of resources, Baker grants. But when the resource is insurance, and its distribution channels corrective justice to some demographics and away from others, Baker seems impatient with justice theorists’ excessive abstraction.
That impatience culminates late in the article when Baker declares that his “project” is to deploy insurance in the service of corrective justice. On its own, this project will enrich tort theory. And happily, Baker hints his project may be even more ambitious. For example, he chooses to treat community retribution as theoretically adjacent to corrective justice (not a mainstream move in tort theory). By collapsing injured individuals and injured communities into the same basket, (Pp. 37-38) Baker invites the reader to discern corrective justice and social justice critiques of contemporary tort insurance in his work. Similarly, when he observes that the absence of insurance “within a community or a demographic group” means that victims of wronging within those groups struggle for justice, widely available scholarship documenting underinsurance among racial minority groups leaves little doubt exactly whose justice he considers to be most in jeopardy. As the efficiency-versus-correction debate in tort theory turns to the role of insurance, correctives could not hope for a more cogent or credible voice than Baker’s.
Cite as: Cristina Tilley,
Price and Prejudice, JOTWELL
(November 3, 2025) (reviewing Tom Baker,
What Is Insurance for Tort Law?, 111
Va. L. Rev. __ (forthcoming 2025), available at SSRN),
https://torts.jotwell.com/price-and-prejudice/.
Oct 6, 2025 Kenneth W. Simons
Emad H. Atiq,
The Disaggregated Hand Formula, 114
Cal. L. Rev. __ (forthcoming 2026), available at
SSRN (Mar. 1, 2025).
The Learned Hand test is both famous and infamous. The main source of its fame is the law and economics movement, which drew attention to the test in the 1970’s. According to Richard Posner and other scholars in that movement, the test is both a descriptively accurate account of how legal fact-finders understand negligence, and a normatively attractive account of why tort law imposes liability for harms caused by negligence—namely, to promote efficiency and minimize the aggregate costs of precautions and the harms that precautions could avoid.
But the Hand test is also infamous. The test provides that an actor is negligent just in case the burden of taking a precaution (B) is less than the probability of the harm that the precaution would have avoided multiplied by the severity of that harm (PxL). Critics protest that the test is not an accurate account of how the law defines negligence. And more fundamentally, they object that treating this formula as the test of negligence is normatively objectionable, indeed abhorrent. If the burden is only slightly more than the expected harm (the harm’s severity discounted by its probability), the formula declares that the actor may freely impose the risk without fear of tort liability if the risk generates harms–even very serious harms–to others.
Professor Emad Atiq, in an illuminating and highly original contribution, suggests that there is a middle way. In The Disaggregated Hand Formula, he argues that one can endorse balancing the burden of precautions against the burden of suffering harm and yet reject efficiency as the only goal of tort liability. Rather, in his view, the Hand test can also embrace principles of distributive fairness and equality. He claims that this reconceived understanding renders the test more accurate as a description of tort doctrine and leading cases, and also more normatively attractive, in multiparty cases involving aggregation. Atiq’s account is a very promising addition to the literature on the meaning of negligence and the principles that justify negligence liability.
Atiq sets up his argument nicely. Why, in the well-known Ford Pinto and McDonald coffee cases, does cost-benefit analysis that militated against a negligence finding seem problematic, whereas in other, apparently similar cases, such as the failure of a manufacturer to childproof its lighters, it seems acceptable? If we interpret the Hand formula in the standard way, as simply comparing, in a utilitarian manner, the aggregate burdens of taking a precaution against the aggregate expected harms that the precaution would avoid, we cannot explain this pattern of results.
Atiq offers an alternative explanation. Principles of impartiality and equality require us to disaggregate the Hand formula in the following way: compare the highest individual burden that would be suffered by someone if the precaution is taken, against the highest individual burden (in the form of expected harm) that would be suffered by someone if the precaution is not taken. (This approach draws in part on the contractarian approach to aggregation espoused by T.M. Scanlon and other philosophers.)
How would this interpretation play out? If a corporation could spend $1001 to avoid a 10% risk of a $10,000 injury to a single resident’s property, with the burden of that spending equally spread among 100 shareholders, the utilitarian version of the Hand formula would say that the precaution need not be taken, because the aggregate B slightly exceeds the aggregate PxL. But Atiq’s version would require the precaution, because the greatest burden suffered by an individual shareholder ($10.01) is far less than the expected loss suffered by the resident ($1,000). “The lone resident’s morally weighty claim in favor of the precaution should prevail even though the shareholders have a greater aggregate claim against the precautions.” (P. 128.) Conversely, suppose that a business owner could take a precaution against the very small risk that the sharp envelopes she sells will cause minor papercuts to many users, and suppose that the owner is unable to pass along the cost of the precaution to consumers. Then, even if the utilitarian calculus would determine that the business owner is negligent because the costs of the precaution are less than the sum of the expected losses, Atiq’s approach would not treat the owner as negligent, because her burden is considerably greater than the individual loss suffered by any user. (P. 131.)
Atiq applies his analysis to the Ford Pinto case, which (to simplify) arose when Ford chose not to adopt an $11-per-car safety feature that could have avoided serious burn injuries (valued at $67,000 each) and deaths (valued at $200,000 each) because the aggregate costs of adopting the feature for all vehicles ($137 million) outweighed the aggregate benefits of avoiding those consequences ($49.5 million). Faced with a government cost-benefit study reflecting these figures, the jury not only found Ford negligent but imposed a $125 million punitive damage award.
But according to Atiq, the compensatory and punitive damages awarded against Ford for its product design do not reflect a complete rejection of the Hand test. Instead, they evince the use of the disaggregated version of the test. Atiq points out that even if the $200,000 value of a life was a proper average figure to employ in 1970, many potential victims (such as children) had much higher life values than this figure. (Pp. 152-153.) And if that higher expected value for some potential victims is increased to $1,000,000, the calculation would, he correctly notes, come out differently: B would then be less than rather than greater than P x L. Similarly, he argues that the $11-per-car burden is likely overstated, because this burden would probably be shared by consumers and shareholders. Atiq offers a very similar analysis of the McDonald’s hot coffee case.
Atiq is persuasive in suggesting that the Hand formula need not be understood in utilitarian terms and can accommodate distributive justice and egalitarian principles. The article is an impressive blend of the abstract and the concrete, developing a theoretically sophisticated analysis that also has quite specific implications for tort doctrine and case outcomes. Atiq formalizes his arguments elegantly, suggesting a way to measure the idea of rough equality of burdens (P. 138) and also offering an intriguing proposal to combine utilitarian and egalitarian arguments by specifying their relative weights. (P 143.) At the same time, he formulates a jury instruction that would implement his suggestion in routine negligence cases.
One principal concern about Atiq’s argument is its potentially far-reaching implications. Any widely distributed product or widely conducted activity will affect individuals who vary enormously along a number of dimensions that seem highly relevant under the disaggregated version of the Hand formula. For example, people differ greatly in their vulnerability to risk. So long as a single user or potential victim of a product that is used by millions is extraordinarily vulnerable to risk, that person’s burden could require the actor to take very burdensome precautions to avoid that risk. (Suppose a tiny percentage of car passengers have a rare genetic disorder such that sudden braking will cause them to die.)
People also differ greatly in what they value and how much they value it (and thus what burden they will suffer if they must take a precaution or if they are harmed because a precaution was not taken): Hotter coffee or greater safety? Financial wealth or love and friendship? Job security or hedonistic pleasure?
Moreover, the “highest burden to any individual” criterion seems to require actors to adjust their conduct to accommodate even extremely idiosyncratic and rare individual preferences. Perhaps some McDonald’s customers strongly prefer that their coffee have zero risk of spilling and be served in a completely spill-proof container. Perhaps some very healthy individuals strongly prefer that ambulances never speed because they are quite unlikely to need an ambulance.
Another concern is that the argument tends to focus on costs of precautions in isolation without considering their cumulative effect on the increased cost (or modified nature) of the product or activity. For example, Atiq emphasizes that in litigation about whether the lack of childproofing of a utility lighter was negligent, the burden of only 1-5 cents increased cost to consumers from that precaution is “negligible.” (P. 159.) But for a more complex product, such as an automobile, it is important to consider the cumulative costs that would be incurred if numerous small design changes were required. A significantly more pro-plaintiff test of design defect could result in the product becoming much less affordable, a result that raises a distinctive issue of distributive justice.
Perhaps these concerns can be addressed by incorporating such distributive justice issues into the model, or by adding doctrinal qualifications to the disaggregated formula, such as a requirement that the type of burden that plaintiff asserts is foreseeable or normal or not unreasonable. I hope that Professor Atiq explores these issues in more detail in future writing.
This creative and rigorous article makes a strong case that the Hand formula is capable of multiple interpretations, accommodating distributive justice as well as utilitarian principles.
Sep 2, 2025 Ellen Bublick
In the age of artificial intelligence (and statistics before that), there is a great need for these frameworks’ constant companion – data. After centuries of common law tort actions, and millions of lawsuits filed, one might think that much would be known about these suits. Not so. As James Anderson and co-authors from the Rand Institute for Civil Justice write, “Remarkably, there is little recent empirical research in the United States that measures the extent and sources of compensation, benefits, and assistance that individuals may receive after they suffer personal harms.” (Pp. 97-98.) Tort law counts among these empirically-neglected sources.
Anderson and the current RAND crew set out to fill this information gap. In tribute to Stanford Law School Professor Deborah Hensler and her pioneering empirical work on civil justice claims, the authors surveyed 17,000+ adult Americans about injuries, illness, and the ways in which losses from these difficulties were addressed. Using a standard that measured respondents’ lost days of work, inability to perform regular activities, multiple visits to a healthcare provider, nights in the hospital and visits to the emergency room, the researchers winnowed the group down to roughly 3,000 people who had suffered “significant injury or illness” under the study criteria in 2017. (P. 98.) Those 3000 people were asked to provide detailed information about the extent and manner of their injuries or illness; the harms, treatments, and expenses they endured; the sources of compensation they relied on; their views about attribution of blame; and their decisions to consult a lawyer, initiate suit, and pursue a claim. About two years after these first inquiries, the researchers sent follow up questions to learn more.
The authors’ findings provide an important source of data that will likely be relied on for years to come (unfortunately, as the authors note, “empirical methods are still more the exception than the rule” in this field). (P. 115.) Some headline findings of the research: Nearly 20% of Americans experience significant injury or illness, as defined by the authors, in a given year. However, only a tiny fraction of those harms results in litigation. About one quarter of individuals who suffer significant injury or illness attribute blame to another (26.1%). (P. 97.) Of the small fraction who thought another was at fault, less than a third (7.1%) chose to seek compensation from that entity (or person). Few of those who sought redress contacted an attorney, somewhat fewer hired an attorney, and fewer still filed a lawsuit. Ultimately, just 2.1% of the people who suffered significant injury or illness filed suit.
The primary rationale for the small percentage of people who claim is that “few who are injured or fall ill believe another party is responsible.” (P. 97.) Even when others were believed to have been responsible, many declined to seek compensation because it seemed like it was “not the right thing to do,” was not necessary in light of other sources of compensation, or “would not be worth it” on an informal cost-benefit calculation. (P. 102.)
The characteristics of those who sought legal assistance and compensation held some surprises. For example, the authors found “no correlation between income and contacting or hiring an attorney.” (P. 102.) Moreover, in pursuit of legal representation, 53% of all prospective plaintiffs were turned away by an attorney, usually because of the cost of suit and the low likelihood of recovery. This rate of attorneys denying representation was more than double the rate in Professor Hensler’s original research thirty years earlier. (P. 101.) However, about three quarters of those who contacted an attorney ultimately did file suit. (Some respondents had to contact multiple attorneys to find one willing to take the case.) (P. 102.)
Other findings seem more expected. The most significant factors that led injured or ill people to legal claims were severity of injury, attribution of fault to another, and an injury context in which tort claims already were well established (injuries related to medical services, work, products, and motor vehicles). (P. 101.) Of note, these contexts are ones in which insurance is typically available (cap tip to the Abraham and Sharkey research on the importance of insurance in the growth of tort liability). Injured potential claimants’ decision formula for when to seek compensation seems fairly close to Judge Learned Hand’s famed BPL standard. That standard examines severity of injury and cost of avoidance among its three factors. Respondents who had suffered “extremely serious injury or illness,“ and had attributed blame to another, sought compensation in 93% of cases—a percentage that stands in stark contrast to the much lower claim rates of those who described their injuries as less severe. Claimants’ decision formula also accords with civil recourse theory’s focus on wrongs, and the main doctrinal questions in negligence law—is another at fault for causing harm?
If tort law is not invoked by 98% of the people who suffer seriously injury or illness, “How do individuals recover losses associated with injuries and illnesses, if at all?” (P. 97.) Workers compensation plays a role. But oddly, study participants’ reluctance to attribute fault and seek compensation in tort carried over to the workers compensation context as well (if to a lesser extent). “[O]nly 29% of those who were injured or became ill on the job filed workers compensation claims.” (P. 103). The most common reason people gave for not filing workers compensation claims was that the injury “wasn’t anyone’s fault,” even though workers compensation is a no-fault system. (P. 103.) Medical insurance was one of the most widely-used sources of compensation, and its use has increased over the last three decades, likely because of the Affordable Care Act. (P. 103.) Paid vacation and sick days were also a popular option for dealing with injuries. (P. 103.)
The question of exactly what should be done about tort law in light of these findings remains hazy. The RAND authors conclude that “the civil justice system makes a terrible social welfare insurance system simply because it compensates such a tiny fraction of the universe of individuals that are injured or ill.” (P. 104.) Moreover, the authors conclude that tort law is not a full substitute for regulation of risky activity, because it is invoked in such a small fraction of cases. (P. 110.) These conclusions seem both true and uncontroversial, at least in their strong form. Few, if any, U.S. torts scholars would claim that tort law is intended to act as a general social welfare system, or that its deterrent effects should serve as a full replacement for regulation.
Study authors appear to suggest that tort law must have a larger footprint to be of any value. They bemoan the “partly chimerical right of civil recourse.” (P. 109.) They decry the idea that tort law can be a meaningful source of loss spreading. (P. 107.) Whether or not one agrees with these claims (2 percent of tens of millions of significant harms, especially the most significant harms, seems a decent sized footprint), the implication of the RAND authors’ work is that too few lawsuits are being pursued. (P. 115.) Go tell that to businesses and legislatures!
Of course, it is crucial to have systems that care for the many people impacted by injury and illness—medical insurance, sick days, workers comp, and social security disability among these. This vital safety net can lessen the weight of costs that an injured or ill person must individually bear. At the same time, the civil justice system, though less frequently deployed, may yet play a meaningful role. By addressing those cases in which wrongful conduct causes severe injury in contexts of repeated harm (where tracts of liability have already been cultivated), tort law can not only aid the most injured claimants, but also potentially reduce the large number of injuries and illness caused to others. To gauge not just the potential, but also the actual, accountability and deterrence created by the tort system, perhaps these skilled authors could, in their next study, survey repeat injurers about how much time and money they spend worrying about, and reshaping conduct in light of, the various compensation systems. It would be interesting to see if efforts to reduce workers compensation premiums and reduce sick time command the same concern, attention, and resources that lawsuits, and potential suits, in the civil justice system demand.
Sep 2, 2025 Christopher J. Robinette
The vast majority of tort cases are settled, and many of the settlements include confidentiality provisions that prevent the public from learning about the allegedly wrongful conduct. This has been true for decades, but the confidentiality provisions—nondisclosure agreements (“NDAs”)—have become increasingly controversial. The #MeTooMovement provided momentum to criticism of NDAs, and multiple states and even the federal government have passed legislation restricting their use.
But do such “sunshine laws” matter to plaintiffs? Noting the lack of empirical data on the issue, Professor Gilat Juli Bachar fills the void with the first article to examine the “extent to which a confidentiality clause affects plaintiffs…when weighing a settlement offer….” (P. 1260.) Such information is important because “the real-world impact of sunshine laws ultimately depends on the litigants themselves.” (P. 1206.) Not only does Professor Bachar shed light on how NDAs are perceived, but she also delves further to identify other factors affecting a plaintiff’s willingness to settle. Bachar’s excellent article is useful on the prominent issue of NDAs, and her methods have the potential to reveal information crucial to a better-functioning civil justice system.
Because of the difficulty of speaking to actual plaintiffs, Bachar relies on a vignette design, putting participants in the shoes of plaintiffs. (P. 1228.) She surveys a representative sample of Americans, inquiring about the extent to which they would accept a settlement offer (the main dependent variable). (P. 1227.) Bachar manipulates two main independent variables: settlement confidentiality and repeat wrongdoing. (P. 1227.) Additionally, Bachar examines three other independent variables: the amount of the settlement, the existence of a sanction against the wrongdoer as part of the settlement terms, and the context of the scenario (products liability manufacturing defect versus sexual harassment). (P. 1229.)
Bachar divides the participants into four groups, with each group randomly assigned to one of four conditions representing combinations of the two main independent variables. The groups are: (1) confidential + first-time wrongdoer; (2) confidential + repeat wrongdoer; (3) public + first-time wrongdoer; and (4) public + repeat wrongdoer. (P. 1231.) In all conditions, participants read two fictional vignettes, one from products liability and one from sexual harassment. For each scenario, participants were presented with variations to the original vignette, adjusting the amount of the settlement offer and including a provision imposing a sanction on the wrongdoer. (P. 1232.)
Bachar cautiously notes the limitations on vignette design and acknowledges that her results should be confirmed. (Pp. 1246-47.) Her main results, however, are robust and noteworthy. First, repeat wrongdoing decreases settlement likelihood. (P. 1247.) Information about the defendant being a repeat wrongdoer significantly decreases the likelihood of settlement, regardless of the demand for confidentiality or lack thereof, in both the products liability and sexual harassment scenarios. (P. 1247.) Second, confidentiality decreases settlement likelihood. (P. 1250.) This was true even against a first-time wrongdoer, and true in both scenarios, though stronger in sexual harassment cases. (Pp. 1251-52.) Third, more money increases settlement likelihood, including when confidential. (P. 1252.) In fact, offering a larger amount eliminates much of the preference for a public settlement. Fourth, participants are more willing to settle a products liability dispute than one about sexual harassment. (P. 1254.)
Bachar focuses on the last point, that participants are more willing to settle a products case than a sexual harassment case. (Pp. 1254-59.) In so doing, she highlights a separate finding on adding a sanction: “when considering a settlement offer, the defendant suffering a sanction mattered more to sexual harassment plaintiffs than it did to products liability plaintiffs.” (P. 1257.) Bachar makes the further observation that the liability standards for the two scenarios are different. A manufacturing defect receives a true strict liability (no-fault) standard and sexual harassment would receive several different standards depending on the claim, but all involve fault. (Pp. 1254-55.) The conclusion she reaches is that although a manufacturing defect is a legal wrong, sexual harassment “was perceived as more morally ‘wrong.’” (P. 1257.)
This insight into wrongful conduct, when combined with the fact that repeated wrongdoing and confidentiality reduce a plaintiff’s desire to settle, allows Bachar to conclude that “there is more to this [settlement] decision than a desire for self-restoration or to maximize a monetary payout a claim produces.” (P. 1260.) Although more money increases the likelihood of settlement even when confidential, her conclusion is sound. The wrongfulness of tort causes of action varies from claim to claim. It is on the low end for manufacturing defects and on the high end for behavior that can be described as sexual harassment. Moreover, victims’ reactions to being wronged vary from person to person, with some victims wanting accountability from the wrongdoer and others more focused on simply repairing the harm.
The relevance of this article goes beyond the question of settlement confidentiality. People pursue different goals in the settlement process because people file suit for different reasons. Bachar is beginning to provide information on why victims of wrongdoing step forward and file suit. Understanding why tort victims sue is increasingly important. Despite the contingent fee, tort law suffers from an access-to-justice problem that is only worsening because of tort reform and technological advances, which make tort cases more complex and thus slower and more expensive. Potential plaintiffs are discouraged by the time and money needed to pursue civil justice, and, in deciding to take a case, plaintiffs’ lawyers insist on increasingly higher damages to justify the risk of a lack of recovery.
In a forthcoming book chapter, I argue that creating a bypass—a simpler, cheaper procedure perhaps with reduced damages—as an option for the parties has the potential to provide access to justice for more wronged victims. Expediting the resolution of claims would help realize tort law’s promise as a law of wrongs and recourse, likely without significantly undermining the law’s deterrent effects. By providing crucial information about why victims file and settle tort suits, Bachar’s work informs us how many victims might be interested in a tort bypass and influence its design.
Professor Bachar is a welcome addition to tort scholars, with her empirical methodology, clear writing, and focus on critical issues. I look forward to reading her pieces for years to come.
Jul 21, 2025 Anita Bernstein
Writers who study torts tend to engage with liability as a force or vector that imposes consequences on parties accused of injuring others. For most of us in this field, liability means accountability or reckoning. This occupational interest in what tort does in action, or can do when it’s enlisted, can obscure the impacts of shelters from accountability.
Removing Torts marks Betsy Grey’s return to a source of tort nonaccountability that Professor Grey knows backwards and forwards, the statutory kind. This refuge has ample company in the land of shelters. Fortuitousness, for example, also fends off reckoning: Prospective defendants get lucky when prospective plaintiffs don’t know what hit them, run out of time or money, fail to clear the intake criteria of a contingent-fee attorney, on and on. Judge-made immunities of the common law—especially the intrafamily and charitable kind—are more orderly, though they’ve dwindled into something of a quaint oddball relic.
The shelter of immunity provisioned by statute is not fortuitous or in decline. It’s formal, official, categorical, out in the open for anyone to look up. It enlists judges as enforcers—and does so in a hierarchical way, sharing little power with them. Statutes of limitation provide an affirmative defense to liability that delivers immunity with almost no room for judicial discretion. Preemption, though a judge-made doctrine, can immunize a defendant only with a pertinent statute on the books. In short, legislatures hold unique strengths to crush tort reckoning.
Grey has been sounding an alarm about this power for at least 28 years. Published in February 2025 (though with a 2024 citation date), Removing Torts revisits themes broached in her 1997 warning Make Congress Speak Clearly: Federal Preemption of State Tort Remedies. In Removing Torts, Grey both widens and sharpens her long-held worry about the danger of shelter by statute.
The new wider lens in Removing Torts looks beyond preemption as a statutory source of tort immunity, paying more direct attention to five other instances of the phenomenon. Grey gathers (1) state and federal legislation enacted to protect a range of businesses in response to Covid, a topic that received prompt commentary from Grey in 2021; (2) immunity for airlines for 9/11 claims; (3) gun manufacturer immunity; (4) the workers’ compensation barrier to tort claims; and (5) Section 230 immunity as a protector of online platforms. (P.136.)
What’s sharper in addition to wider about Grey’s agenda in Removing Torts is the uptick in her current demand. Make Congress Speak Clearly had pushed for disclosure and transparency about consequences; it told legislators what to say about their actions. Removing Torts tells legislators what to do, a task list that includes but is not limited to providing information.
“Legislatures,” Grey writes, “should make a consistent set of evidence-based findings and apply the principle of balancing before ousting tort remedies” (P. 154). If legislators follow what Grey tells them to do, they will take “four transparent steps” before they codify statutory immunity: identify the public interest that their immunity enhances, determine the impact that liability now has on the sector they seek to protect, consider how immunity could diminish “the accountability, deterrence, and compensation functions traditionally provided by torts,” and tailor the immunity they provide “to minimize interference with tort policies.” (P. 137).
The latter half of this undertaking would remind lawmakers that tort law is worth celebrating. Professor Grey reviews (Pp. 156-61) several good things that go away when immunity thwarts tort. Back in Make Congress Speak Clearly, Grey spoke about states as holders of a “right” to offer “a compensatory remedy for their injured citizens.” (Make Congress Speak Clearly, P. 565) Rights discourse tends to depict the state as threatening (and sometimes safeguarding) rights rather than holding a right for their own benefit. Grey upends this convention to good effect. Tort liability imposes force on a public that must obey, yes, but liability itself is a vulnerable political condition. The accountability it delivers has powerful enemies.
“Legislatures … should.” “Make Congress speak clearly.” “[E]xceptional circumstances” might be necessary to justify a legislature’s choice “to alter or eliminate access to tort redress.” (P. 178). Grey says so, but how many divisions does she have? Skeptical readers might wonder when and how Grey will extract the cooperation that her proposals need to get off the ground.
The proposer herself seems of two minds on the question of whether legislators will heed her call. On one hand, Grey’s conclusion back in Make Congress Speak Clearly sounded confident: “Congress gains little from writing ambiguous statutes.” (Make Congress Speak Clearly, P. 627) This powerful legislature knows what it wants, and the American public can expect it to act in its own interest. On the other hand, just a few pages earlier in that same article Grey took a different stance: “If Congress is not required to speak clearly,” then “it is likely to avoid its responsibility.” (Id.; P. 618). The latter posture sounds right to me; I’m inclined to agree with pessimistic Grey.
Yet plenty of potential remains in Grey’s exhortation that legislators fulfill occupational and constitutional obligations rooted in democratic federalism. Removing Torts sends a directive to state actors that combines high ideals and a clear path forward. Grey cannot compel any legislature to follow her “four transparent steps,” but individuals who serve in these bodies can learn what’s in her recommendations and make choices.
I’d like to see what might be dubbed “the Grey Principles” emerge as a banner that legislators and candidates for legislative office could embrace. Interlocutors in turn can ask these individuals where they stand on Grey’s insistence that legislation be read with reference to the work of other constitutional actors, especially courts.
“Tort liability exists,” a Grey Principles exponent can begin when addressing a candidate for legislative office. “After you’re elected you may learn about a bill that codifies immunity from that liability. Will you identify the public interest at stake, work to learn the impact of liability on the sector affected, consider the effects immunity will have on the policies that tort honors, and tailor whatever immunity you and your colleagues enact to minimize the interference with the good things tort does?” Candidates who are incumbents will have made choices that can be scrutinized through a Grey Principles lens.
Political conditions facilitate that scrutiny. An onlooker who wants to apply the Grey Principles has access to the (relative) transparency and accessibility of campaign platforms, durable statements that candidates for office make about themselves, on-the-record questioning of candidates by journalists, legislative deliberations on the floor, logs of legislators’ votes, and legislatures’ punishment-and-reward schemes, some of which are intelligible from the outside.
There’s more. I’ve remarked that tort immunity as installed by legislatures shares little power with judges: but it does share some. Judges have occasions to assess, and sometimes invalidate, statutes that dole out this benefit. Tort immunity rendered by preemption, for example, has occupied multiple U.S. Supreme Court decisions. Reviewing courts can examine the legislative record for information about its adherence (or, perhaps more likely, its nonadherence) to the Grey Principles.
Lawyers who defend immunizing statutes can use documents like memoranda in support of summary judgment to tell judges about the regard that legislatures had for the benefits of keeping liability alive. Opponents of immunity in the same litigation might have contrary facts to present. Going back to the stages of legislation before enactment, activists can seed a source of immunity with Grey Principles content. Well before a president or governor signs a bill, its legislative history can be populated with references to the importance of tort liability.
Warning has a long heritage in tort. This measure often fails to deliver safety, but it can spur useful conduct. Professor Grey has warned her audience to beware the unseen dangers of shelter and then, at least to this reader, goes further: I find in Removing Torts a timely plan for action.
Jun 23, 2025 Nora Freeman Engstrom
Jonathan Cardi, Ashton Jenne, & Chance Villarreal,
The Paradox of Continuing Risk, available at
SSRN (May 5, 2025).
In The Paradox of Continuing Risk, W. Jonathan Cardi, Ashton Jenne, and Chance Villarreal surface and incisively explore a consequential puzzle. Across the United States, 32 jurisdictions have adopted the continuing-risk rule, which imposes an affirmative duty to warn, protect, or rescue others from continuing risks created by one’s conduct. But despite the multitude of courts that have endorsed the rule—and the rule’s unbroken acceptance in various Torts Restatements—few actual cases apply this principle.
To start, it’s important to understand what exactly the continuing-risk rule does and why it matters.
The rule is well-summarized in the Restatement Third of Torts: Liability for Physical and Emotional Harm § 39. Published in 2012, § 39 provides: “When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.”
The idea, then, is that a doctor who implanted a Dalkon Shield in a patient before the IUD’s dangers came to light has an affirmative duty to warn the patient once those risks become apparent. If it weren’t for the rule, a doctor who breached no duty to the patient at the time of the IUD’s implantation—and took no action thereafter—would presumably face no liability.
Or think of a driver whose car suddenly stalls, creating a dangerous condition for fellow motorists. Under the continuing-risk rule, the driver has a duty reasonably to mitigate the hazard.
Or suppose a manufacturer sells a product that initially seems safe, but the risk of the product gradually becomes apparent. Under the ALI’s Product Liability Restatement, assuming the risk is significant, the seller has a limited duty to warn.
Or finally, consider this scenario, adapted from an Illustration in the First Restatement:
Reasonably believing his car is in good repair, one Friday afternoon, Mel lends his vehicle to his next-door neighbor, Fielding. Later that evening, Mel’s wife mentions to him that, when she was driving the car earlier in the day, the vehicle’s brakes were sluggish and unresponsive. Mel doesn’t pass this information along. Unaware that the brakes are on the fritz, on Saturday morning, Fielding drives the car as he had planned. The brakes fail, and Fielding is injured in the ensuing collision.
The First Restatement explains that, pursuant to the continuing-risk rule, Mel is subject to liability to Fielding, even though, at the moment he acted (on Friday afternoon, when he handed off his keys to Mel), he was personally free of blame.
Essentially then, the continuing-risk rule reverses the classic no-duty-to-rescue rule. But critically, it does so only in a discrete and narrowly defined set of circumstances. One narrowing mechanism involves characteristic risk. The rule does not impose liability whenever the defendant sets in motion a chain of events that eventually culminates in any conceivable injury to the plaintiff. Instead, per the Third Restatement, the continuing-risk rule applies only when the harm that befalls the plaintiff is “of a type characteristic of the [defendant’s] conduct.” Elaborating on this restriction, an Illustration provides:
Bill, who has two tickets to a basketball game between Wake Forest University and the University of Texas, takes his friend Mike, a Wake Forest fan, along. At the end of the game, Mike, distracted by the trouncing his team suffered, slips and falls down several rows of stairs and seriously injures himself. Bill, who is nearby at the time of the fall, has no duty of care to Mike to assist him pursuant to this Section, even though Bill, by taking Mike to the game, is a factual cause of Mike’s harm. Merely taking a friend to a sports event does not create a characteristic risk of slipping and falling.
Another limitation is also critical (and easily overlooked): Like other affirmative-duty rules, the continuing-risk rule—even when it applies—merely opens the door to liability. It doesn’t establish it. In the stalled motorist scenario set forth above, for instance, the driver might take no precaution and still (appropriately!) face no liability. Perhaps given the road conditions, it is entirely reasonable for a stranded motorist to simply sit tight.
But, even with both these key caveats, it’s clear that the continuing-risk rule is a useful resource for many plaintiffs. Without it, given the defendant’s (at least recent) nonfeasance, it’ll be hard to establish a duty. With it, the duty element (at least) is satisfied.
It is surprising, then, as Professor Cardi and co-authors show: Although the continuing-risk rule is on the books in a strong majority of states, its actual application is exceptional. According to the authors, only in Texas and West Virginia is the rule cited frequently. In all other jurisdictions, fewer than ten cases have relied on it.
Adding to the mystery: This limited reliance can’t be chalked up to a lack of cases with congenial fact patterns. To the contrary, Cardi and co-authors identify numerous cases involving facts where the application of the continuing-risk rule would have given rise to a clear-cut defendant-side duty. Yet, in many of these cases, even while the duty question was exhaustively debated, the rule was never so much as mentioned.
So, Cardi and co-authors ask: Why has the continuing-risk rule continually fallen under the radar?
One potential culprit is simple ignorance. Judges and lawyers might not be aware of the rule—and this lack of awareness can create a negative feedback loop. “Courts fail to apply the rule, so attorneys fail to argue it, which in turn makes courts even less likely to apply it.” (P. 19.)
Or, it could be that judges and lawyers believe that the rule is too amorphous or open-ended, not realizing that, in fact, the Third Restatement’s version of the Rule (as explained above) contains clear and workable limits.
But, for current purposes, the why is much less important than the simple fact. The continuing-risk rule is a broadly accepted doctrine that elegantly addresses factual scenarios that at least sometimes arise. By shining a light on this long-overlooked doctrine, Cardi, Jenne, and Villarreal perform a valuable service, assisting both litigants and courts.
