Faculty

Mark Geistfeld

  • Sheila Lubetsky Birnbaum Professor of Civil Litigation
Assistant: Theresa Allison
  AllisonT@exchange.law.nyu.edu       212.998.6216
Mark Geistfeld

Publications

BOOKS

ARTICLES

  • "Proximate Cause Untangled," 80 Md. L. Rev. 420 (2021)
  • "Tort Law and Civil Recourse," 119 Mich. L. Rev. 1289 (2021)
  • "Cost-Benefit Analysis Outside of Welfarism," 37 Revus 115 (2019)
  • "The Law and Economics of Tort Liability for Human Rights Violations in Global Supply Chains," 10 J. Eur. Tort L. 130 (2019)
  • "The Regulatory Sweet Spot for Autonomous Vehicles," 53 Wake Forest L. Rev. 101 (2018)
  • "A Roadmap for Autonomous Vehicles: State Tort Liability, Automobile Insurance, and Federal Safety Regulation," 105 Cal. L. Rev. 1611 (2017)
  • "Conceptualizing the Intentional Torts," 10 J. Tort L. 159 (2017)
  • "Protecting Confidential Information Entrusted to Others in Business Transactions: Data Breaches, Identity Theft, and Tort Liability," 66 DePaul L. Rev. 385 (2017)
  • "Hidden in Plain Sight: The Normative Source of Modern Tort Law," 91 N.Y.U. L. Rev. 1517 (2016)
  • "The Contractually Based Economic Loss Rule in Tort Law: Endangered Consumers and the Error of East River Steamship," 65 DePaul L. Rev. 393 (2016)
  • "Interpreting the Rules of Insurance Contract Interpretation," 68 Rutgers U.L. Rev. 371 (2015)
  • "Risk Distribution and the Law of Torts: Carrying Calabresi Further," 77 Law & Contemp. Probs., no. 2, 2014, at 165 Abstract

    The article focuses on U.S. Judge Guido Calabresi's article "Some Thoughts on Risk Distribution and the Law of Torts." Topics include the development of tort law in the U.S., risk distribution in torts, and the use of economic analysis in tort decisions. Information is provided on tort liability, economic loss, and the calculation of compensation.

  • "The Tort Entitlement to Physical Security as the Distributive Basis for Environmental, Health, and Safety Regulations," 15 Theoretical Inq. Law 387 (2014) Abstract

    In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance. For example, different specifications of the entitlement can produce substantially different measures of cost that fundamentally alter the type of safety regulations required by cost-benefit analysis, even for ordinary cases involving low risks. Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement to physical security in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation, thereby enabling federal regulatory agencies to conduct cost-benefit analyses that account for matters of distributive equity as required by Executive Order. When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system.

  • "Tort Law in the Age of Statutes," 99 Iowa L. Rev. 957 (2014) Abstract

    The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, these three statutorily related doctrines are a muddle, lacking any coherent theory that adequately accounts for the competing institutional concerns of the federal regulatory and state tort systems. The problem resides in a mistaken focus on statutory purpose. Due to the supremacy of legislative law, a statutory purpose to modify tort law would seem to fully determine the relation between the common law of torts and the regulatory state. This conclusion is mistaken, however, explaining why there has been so much confusion and controversy about the matter. Systematic analysis across the doctrines of negligence per se, the regulatory compliance defense, and implied statutory preemption shows that they are instead unified by a single underlying principle: When a statute or administrative regulation is based on a policy decision that is relevant to the resolution of a tort claim, courts will defer to the non-binding legislative policy determination as a matter of common-law discretion. This immanent principle of common-law deference gives much-needed structure to the three statutorily related doctrines, filling the analytic gap created by the overly narrow inquiry into statutory purpose. The legislative intent to modify tort law certainly matters, but the principle of deference provides the primary means by which courts integrate health and safety legislation into the common law of torts, eliminating the purported conflict between tort law and the modern regulatory state.

  • "The Coherence of Compensation-Deterrence Theory in Tort Law," 61 DePaul L. Rev. 383 (2012) Abstract

    Courts and commentators regularly analyze tort law in the functional terms of compensation and deterrence, despite the apparent shortcomings of doing so. Why is the function of compensation only furthered in cases of negligence? Why not compensate a larger number of injured plaintiffs under a rule of strict liability? Is the function of compensation instead somehow tied to the function of deterrence? If so, what determines the relation between these two functions? What is the social policy that courts rely on to answer these questions in a principled manner? As these questions suggest, the functions of compensation and deterrence do not obviously cohere into a viable theory of tort law, making the approach incoherent and unprincipled in application according to numerous critics. In contrast to this line of criticism, this article argues that the functions of injury compensation and deterrence can be unified by an abstract tort norm of compensation, one that does not limit liability to violations of conventional morality or customary practices in the community. For historical and other reasons, compensation plausibly provides the norm by which tort law defines the obligation running between dutyholders and rightholders. When risky interactions threaten the irreparable injury of physical harm, the compensatory damage remedy does not adequately protect the rightholder’s interest in physical security. Consequently, the compensatory tort norm redirects the dutyholder’s compensatory obligation from the payment of compensatory damages to the exercise of reasonable care, yielding a default rule of negligence liability that is formulated to deter the irreparable injury of physical harm without imposing undue hardship on the dutyholder. A compensatory tort norm justifies the manner in which negligence liability furthers the function of deterrence, unifying compensation and deterrence within a coherent rationale for tort liability.

  • "Legal Ambiguity, Liability Insurance, and Tort Reform," 60 DePaul L. Rev. 539 (2011) Abstract

    Legal ambiguity refers to an unknown outcome regarding the requirements of a legal rule or body of law, as applied to a set of known facts, for which the probability cannot be confidently or reliably defined and must be estimated by decision makers. The legal ambiguity generated by the tort system became significantly more pronounced over the course of the twentieth century, making the market for liability insurance increasingly volatile. Without reliable estimates of the relevant probabilities (the likelihood of a policyholder incurring tort liabilities and the amount thereof), insurers must use subjective estimates of risk that are prone to forecasting errors with the resultant swings in profits and losses. Legal ambiguity increases the cost of capital for insurers (and therefore premiums) and creates an expectations-driven pricing structure that is prone to cyclical volatility, including periods of substantial underwriting losses that disrupt the supply of liability insurance. Due to these market disruptions, liability insurers have supported tort reform measures that reduce the unpredictability of the liability costs covered by the insurance policy, making it easier for them to set premiums. The movement has been successful, and the vast majority of states by now have legislatively curbed tort liability, with common reforms involving damage caps and the elimination of joint and several liability. Although different in substance, the varied reforms share the trait of significantly reducing systemic legal ambiguity, which in turn makes it easier for liability insurers to forecast their expected liabilities. Tort reform has become biased towards reductions of ambiguity that enhance the predictability of liability insurance, regardless of whether the reforms address the problem of ambiguity in a fair or just manner. Each of these factors has become increasingly important over the course of the twentieth century, producing an evolutionary path for the tort system that is now shaped by the interplay between legal ambiguity, liability insurance, and legislative tort reform.

  • "The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability," 121 Yale L.J. 142 (2011) Abstract

    When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by paying (the equally valued) compensatory damages for that harm. Full alignment characterizes a rule of strict liability but not negligence liability, which partially misaligns the elements for reasons of principle. Owing to its primary reliance on the damages remedy, a fully aligned rule is unable to address adequately the problem of irreparable injury, a common law category encompassing bodily injury and damage to real or tangible property. In cases of irreparable injury, the common law has long recognized the principle that it is better to prevent the harm instead of attempting to compensate for its occurrence with the inherently inadequate monetary damages award. This principle explains why tort law has adopted a default rule of negligence liability that seeks to prevent the irreparable injury of physical harm without imposing undue hardship on the dutyholder. To function in this manner, the negligence rule must misalign the elements so that dutyholders are prohibited from rejecting the primary duty of care (based on a higher legal valuation of harm) in exchange for payment of (the lower-valued) compensatory damages. The principle of misalignment reorients the interpretation of tort law in a manner that has been missed by leading accounts. It decisively shows that courts have formulated the negligence rule in a fundamentally inefficient manner, while also showing that the rights-based accounts of corrective justice must explain why that form of justice would primarily value the exercise of reasonable care as opposed to the payment of compensatory damages. For reasons revealed by the misaligned negligence rule, that type of explanation can be supplied by a compensatory tort norm that redirects the dutyholder's compensatory obligation from the damages remedy into expenditures that would prevent physical harm, yielding the type of misaligned negligence rule that now constitutes the default rule of tort liability. In a world of irreparable injuries and scarce resources, the varied limitations of tort liability can all be understood in relation to a norm of compensation for reasons fully illustrated by the misaligned negligence rule.

  • "Tort Law and the Inherent Limitations of Monetary Exchange: Property Rules, Liability Rules, and the Negligence Rule," 4 J. Tort L. 4 (2011) Abstract

    Legal scholars have extensively analyzed legal entitlements in terms of more fundamental component parts, most notably with the remedial structures entailed by property and liability rules. Contrary to the claim made by some scholars, I argue that the negligence entitlement is not fully constituted by a property rule, liability rule, or any combination thereof. The entitlement that generates the negligence rule, though partially constituted by both property and liability rules, is best described as a behavioral rule that obligates duty-holders to exercise reasonable care. The breach of this primary duty creates a second-order duty to pay compensation for the proximately caused physical harms, but the payment of compensatory damages does not fully exhaust or satisfy the underlying entitlement. This component of the entitlement explains why duty-holders are subject to punitive damages and perhaps even criminal negligence liability if they choose to act unreasonably in exchange for the payment of compensatory damages. The entitlement takes this form due to the inherent inadequacy of the compensatory damages remedy, an inadequacy that is most pronounced in cases of wrongful death but applies more generally to many instances of physical harm. The article concludes by identifying the distinctive features of the negligence entitlement that must be accounted for by any normative theory seeking to adequately explain tort liability, a condition that is not satisfied by prominent interpretations of tort law, including leading accounts based on the fault principle, pluralism, allocative efficiency, and corrective justice. The underlying rationale for tort liability cannot be derived from a structural (non-normative) analysis of entitlements, but the entitlement structure of the negligence rule still has important implications for the normative theory of tort law.

  • "Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care," 44 Wake Forest L. Rev. 899 (2009) Abstract

    One whose affirmative conduct creates a foreseeable risk of physical harm is subject to the ordinary duty to exercise reasonable care with respect to those who might be foreseeably harmed by the conduct. In exceptional cases, this ordinary duty has been limited by judges as a matter of law. Judges have invoked a variety of public-policy factors to support such a limitation of liability, but have not adequately explained the nature of the justification. Consequently, the Restatement (Third) of Torts: Liability for Physical Harms recognizes that courts can limit duty when “an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases,” and then instructs the court to clearly explain why liability should be limited. The Restatement (Third)’s treatment of duty has been sharply criticized for adopting a brand of instrumentalism that is inconsistent with the substantive nature of a tort duty rooted in individual obligations. On this view, a court’s reliance on “public policy” is an economic exercise of cost-benefit analysis that has no place in a rights-based system of private law. Contrary to this view, this article shows that a policy-based limitation of duty does not necessarily entail the type of economic or utilitarian calculus that many find to be controversial. Social value can limit duty within a rights-based tort system as well. In addition to the private interests at stake in the lawsuit, the resolution of a tort claim can affect other interests. Insofar as these interests have normative value that justifies the individual tort right and its correlative duty, they must be recognized by the court as a matter of equality. Insofar as these third-party interests are not all adequately represented by the private litigants, this social value must be accounted for by the judge in the determination of duty. To illustrate, the article reviews cases in which courts have used public-policy factors to determine whether social hosts should incur liability for drunk-driving accidents caused by their inebriated guests after leaving the event. While divided over the issue of whether a social host owes a duty to the third-party accident victim, courts nevertheless evaluate the duty by reference to a common set of social values rooted in the normative concern of individual autonomy. The autonomy interests implicated by the case at hand easily justify the duty, but courts then evaluate whether the duty would have uncertain application in other cases that would unduly restrict the autonomy of others in the community - the type of social-value inquiry that is appropriate in a rights-based tort system. This formulation of the social-value inquiry also has implications for the judge-jury issue, another aspect of the Restatement (Third) approach that has been sharply criticized. For certain types of cases, the social-value inquiry can depend on the facts of the case at hand. These duty determinations are still appropriately made by judges as a matter of law, however, because the court is evaluating the particular claim by reference to categorical (or social) values not otherwise implicated by the other elements of the tort claim. Even though these rulings rely on case-specific facts, the determination is nevertheless categorical in the manner required by the Restatement (Third). The social-value inquiry simply encompasses the full set of legally valued interests that would be affected by the duty and are not otherwise adequately addressed by the tort claim, a policy - indeed, a principle - that must be recognized by a tort system committed to the equal treatment of individuals in the community.

  • "The Value of Consumer Choice in Products Liability," 74 Brook. L. Rev. 781 (2009) Abstract

    Tort law has always recognized the principle expressed by the Latin maxim volenti non fit injuria, or "a person is not wronged by that to which he or she consents." The absence of consent is part of the prima facie case for tort liability, distinguishing tortious behavior from socially acceptable behavior. Nevertheless, the value of consumer choice in strict products liability is surprisingly unclear. Consider the liability rules governing defects of product design or warning, the most important categories of product defect. According to the Restatement (Third) of Torts: Products Liability, "[t]he emphasis is on creating incentives for manufacturers to achieve optimal levels of safety in designing and marketing products." The optimal level of safety has no apparent connection to the amount of safety that would be chosen by consumers, because "consumer expectations do not play a determinative role in determining defectiveness." Whether a product is defective in these cases instead depends on "[a] broad range of factors," including "the nature and strength of consumer expectations regarding the product." In some cases, consumer expectations can be "ultimately determinative" of the liability question, but it is not apparent why the liability rules exclusively rely on consumer choice in only these cases but not others. Consumer choice could also limit liability under the assumed-risk rule, and yet assumption of risk is not an independent defense in products liability, deepening the impression that this body of tort law undervalues individual choice. The impression is misleading. Strict products liability appropriately values consumer choice. The value of consumer choice, however, is obscured by the way in which the Restatement (Third) has de-emphasized the importance of consumer expectations. Properly understood, the value of consumer choice not only justifies the liability rules in the Restatement (Third), it also provides the key to understanding the important limitations of strict products liability, including those based on assumed risks.

  • "Punitive Damages, Retribution, and Due Process," 81 S. Cal. L. Rev. 263 (2008) Abstract

    Tort law provides awards of punitive damages for reasons of retribution and deterrence. In light of a recent decision by the U.S. Supreme Court in Phillip Morris USA v. Williams, the retributive rationale for punitive damages will inevitably come under heightened scrutiny. The case involves a punitive award of $79.5 million that is 97 times greater than the compensatory damages, making it presumptively unconstitutional under the Court's punitive damages jurisprudence. The Court, though, has never addressed the constitutional issue in a case involving serious bodily injury or death, and so Williams poses a number of new questions. How can compensatory damages provide an appropriate baseline for evaluating punitive damages in a case of wrongful death, given that monetary damages provide no compensation to a dead person? What is the appropriate baseline? Any future deterrence provided by a punitive award cannot protect the decedent's tort right, and so the award must be justified exclusively in terms of retribution. Is retribution inherently subjective and arbitrary, unless constrained by some objective measure such as the single-digit ratio between the punitive and compensatory damages? Or is there some way to translate retribution into dollars? These questions are not limited to wrongful-death cases and must be resolved by any court trying to determine whether a punitive award is unconstitutional for exceeding the presumptively required single-digit ratio between punitive and compensatory damages. These questions can all be answered once retribution is tied to the inherent limitations of compensatory damages, which yields a method for quantifying this form of punitive damages. Based upon government data and methodology involving the monetization of fatal risks, this method shows why vindication of the decedent's tort right in Williams justifies the $79.5 million punitive award. When formulated in this manner, vindictive damages satisfy the requirements of both substantive and procedural due process and provide a baseline for reviewing courts to determine whether any given punitive award, like one based on general deterrence, is excessive in violation of substantive due process. This method fully accounts for the reprehensibility factors that determine the constitutionality of a punitive award, while also explaining why the Court could defensibly rely upon procedural due process to reverse and remand Williams back to state court.

  • "Due Process and the Determination of Pain-and-Suffering Tort Damages," 55 DePaul L. Rev. 331 (2006)
  • "The Doctrinal Unity of Alternative Liability and Market-Share Liability," 155 U. Pa. L. Rev. 447 (2006) Abstract

    Market-share liability has been one of the most controversial doctrines in tort law, with a strong plurality of courts rejecting the doctrine on the ground that it radically departs from the fundamental principle of causation. Courts that have adopted this liability rule, though, believe they are adhering to the principle of causation. In the first case to adopt market-share liability, the California Supreme Court claimed that the liability rule is grounded upon an extension of alternative liability, a doctrine that has been accepted by virtually all jurisdictions. The court never adequately explained how alternative liability can be modified to yield market-share liability, and the only explanation provided by torts scholars involves redefining the tort right to permit compensation for tortious risk, conditional upon the occurrence of injury, rather than for the injury itself. However, courts do not conceptualize the tort right in these terms, for otherwise the doctrine of market-share liability would be uncontroversial. As this Article shows, market-share liability can be derived from alternative liability in a manner that neither redefines the tort right nor departs from the principle of causation. Alternative liability permits the plaintiff to prove causation against the group of defendants. This characterization of the causal rule has been recognized by some torts scholars, but has never been justified. The Article shows that evidential grouping is a defensible principle implicit in numerous cases involving analogous causal problems, including the asbestos cases. Evidential grouping not only explains the doctrine of alternative liability, it shows how a modification of that liability rule yields market-share liability largely for reasons given by the California Supreme Court. This conceptualization of alternative liability and market-share liability also explains the otherwise puzzling liability rule adopted by courts in the asbestos cases. Due to this doctrinal unity, the widespread acceptance of alternative liability should make market-share liability more widely acceptable.

  • "Constitutional Tort Reform," 38 Loy. L.A. L. Rev. 1093 (2005) Abstract

    This article, written for the first annual Access to Justice symposium at Loyola Law School of Los Angeles, addresses the implications of due process for tort reform. In a line of relatively recent cases, the U.S. Supreme Court has held that a tort award of punitive damages must satisfy the procedural and substantive requirements of the Due Process Clause of the U.S. Constitution. So far, constitutional tort-reform has been limited to punitive damages, but such reform is not necessarily limited to this area of tort law. As the article argues, other important tort practices raise the same sort of due process concerns that the Court has relied upon to justify the constitutional tort-reform of punitive damages practice. The Court's punitive damages jurisprudence may thus provide the foundation for a new type of broad-based tort reform. Regardless of what one may think about the Court's foray into tort reform, constitutional tort-reform has desirable characteristics. Rather than addressing the substantive aims of tort liability, constitutional tort-reform is supposed to reduce or eliminate any unreasonable legal uncertainty generated by the tort practice in question. But as the article further argues, the neat distinction between substance and process cannot be attained in practice. Any reform designed to reduce legal uncertainty will depend upon a contestable conception of tort liability, a characteristic of constitutional tort-reform clearly present in the Court's punitive damage jurisprudence. The Court, though, does not have to reach the correct substantive outcome in order to make constitutional tort-reform desirable. If the Court adopts a reform that depends upon the wrong substantive conception of tort law, the states retain the power to adopt a different substantive objective for the tort practice. Constitutional tort-reform therefore can serve the valuable role of forcing state courts and legislatures to identify more clearly the substantive objectives of tort law, an issue of critical importance that has not been adequately addressed by the reform movements of the last century.

  • "Malpractice Insurance and the (Il)legitimate Interests of the Medical Profession in Tort Reform," 54 DePaul L. Rev. 439 (2005)
  • "Necessity and the Logic of Strict Liability," 5 Issues Legal Scholarship 1539 (2005)
  • "Negligence, Compensation, and the Coherence of Tort Law," 91 Geo. L.J. 585 (2003) Abstract

    As an apparent compromise to the ongoing debate whether the appropriate purpose of tort law is efficient or fair, the Restatement (Third) of Torts: Basic Principles justifies negligence liability as a remedy for wrongful behavior and as a deterrent to such behavior. Geistfield argues that the compensation rationale coherently explains the important doctrines of tort law, including the significant limitations of liability, and that the tort law can be coherently understood in compensatory terms, despite the large number of accidental injuries that receive no damages compensation.

  • "The Analytics of Duty: Medical Monitoring and Related Forms of Economic Loss," 88 Va. L. Rev. 1921 (2002) Abstract

    Discusses duty analysis in tort litigation related to medical monitoring in the U.S. Background on the analytical role of the element of duty; Information on duty limitations for emotional distress and economic loss; Details on economic loss for precautionary investments related to medical monitoring.

  • "Implementing the Precautionary Principle," 31 Env't L. Rep. 11326 (2001)
  • "Reconciling Cost-Benefit Analysis with the Principle that Safety Matters More Than Money," 76 N.Y.U. L. Rev. 114 (2001) Abstract

    Some environmental, health and safety laws emphasize safety over cost considerations by invoking the principle that safety matters more than money. Others rely on cost-benefit analysis (CBA) that equates safety and money. Despite their apparent inconsistency, the two regulatory approaches can be reconciled. The safety principle most plausibly stands for a distributive claim that in the context of nonconsensual risky interactions among strangers, the safety interests of potential victims deserve greater weight than the ordinary economic interests of potential injurers. To determine whether the safety principle is inconsistent with CBA, cost-benefit outcomes must be evaluated in light of the safety principle. The tort system, with its confluence of risk regulation and injury compensation, provides a good institutional setting for such an analysis. Evaluating cost-benefit tort rules in this light reveals that potential victims are inadequately compensated for certain types of nonconsensual risks threatening death, an inequity that can be quantified with cost-benefit methodology. The inequity is defensibly remedied by altering the duty of care to give safety interests greater weight than economic interests, the weighting sanctioned by the safety principle. The more exacting safety requirement reduces risk below cost-benefit levels. The added risk reduction is a form of compensation for potential victims that eliminates a windfall potential injurers would otherwise receive from cost-benefit legal rules. As compared to conventional cost-benefit outcomes, modified CBA yields welfare levels for potential injurers and victims that more closely approximate the welfare levels they would attain under conditions of actual consent or ideal redistributive institutions. Redressing the distributive inequity characteristic of some cost-benefit outcomes therefore produces a well-defined decision rule that modifies CBA in a manner that corresponds to the safety principle. Modified CBA satisfies the requirements of modern welfare economics and can accommodate a wide range of normative concerns. The approach also closely conforms to important tort practices, suggesting that it implements a version of the safety principle closely corresponding to the version adopted by the tort system. The value of modified CBA is illustrated by the structure it gives to the precautionary principle, a vague regulatory norm based on the safety principle that has become increasingly important and controversial in international law. The rationale for modified CBA shows how cost-benefit methodology can operationalize the version of the precautionary principle adopted by the Commission of the European Communities.

  • "Scientific Uncertainty and Causation in Tort Law," 54 Vand. L. Rev. 1011 (2001) Abstract

    Cases involving scientific uncertainty should be resolved on the basis of the appropriate tort norm for allocating the burden of factual uncertainty. This norm does not require epidemiological proof in the products liability context, because such proof is primarily relevant for damages rather than causation. For damage issues, the tort norm allocates the burden of factual uncertainty to the defendant. In other contexts, epidemiological evidence is primarily relevant for causation, and the requirement of epidemiological proof is consistent with a tort norm of equality. The requirement, however, is limited by various contextual considerations, including the current state of science, and the epidemiological proof need not always show at least a doubling in risk.

  • "Tort Law and Criminal Behavior (Guns)," 43 Ariz. L. Rev. 311 (2001) Abstract

    This article, written for the symposium on Guns, Crime and Punishment in America, analyzes the relation between tort law and criminal behavior. The analysis reveals an inconsistency that requires redress. In applying negligence doctrine, courts have expressly recognized that the threat of criminal and tort liability does not induce perfect compliance with the law. By contrast, in applying the rule of strict liability for abnormally dangerous activities, courts assume everyone acts lawfully. For reasons illustrated by the tort cases involving the manufacture and distribution of handguns, courts should eliminate the inconsistency by applying the rule of strict liability in a manner that accounts for unlawful behavior. The use of strict liability to enforce the duty of care, which is expressly rejected by the proposed Restatement Third of Torts: General Principles, is faithful to the rule of strict liability in the Restatement (Second) of Torts. Moreover, the enforcement rationale for strict liability is consistent with other rationales for strict liability, including the reciprocity rationale. The value of the enforcement rationale for strict liability is illustrated by the tort cases involving handgun manufacturers. The enforcement rationale reveals that the appropriateness of strict liability depends on how the self-defense interests of non-criminal gun owners should be weighed against the competing security interests of individuals who do not own guns and are exposed to the risk of being injured by gun-toting criminals. In an analogous context, tort law has decided in favor of self-defense. The implications of this well-established tort principle provide a persuasive rationale for not applying strict liability to the manufacture and distribution of handguns, a rationale far superior to the existing rationale that dismisses the strict liability claim on the ground that the threat of negligence liability induces all gun-toting criminals to exercise reasonable care.

  • "Should Enterprise Liability Replace the Rule of Strict Liability for Abnormally Dangerous Activities?," 45 UCLA L. Rev. 611 (1998) Abstract

    Examines the desirability of enterprise liability for cases in which the business and the plaintiff have no contractual relationship. Highly influential theory of enterprise liability; Analytical framework for evaluating the fairness of tort rules in noncontractual settings; Applying the framework; Conclusions.

  • "Inadequate Product Warnings and Causation," 30 U. Mich. J.L. Reform 309 (1997) Abstract

    The market failure that provides an economic justification for imposing tort liability on product sellers for design and manufacturing defects also justifies tort liability for inadequate warnings. In general, the liability standards proposed in the most recent draft of the Restatement (Third) of Torts: Products Liability have the potential to remedy this market failure, although this purpose is not furthered by the Draft's requirement that plaintiffs prove that an adequate warning would have prevented the injury. Unless courts presume causation (as most currently do), sellers will not have sufficient incentive to warn about unavoidable product risks. Moreover, there is no persuasive reason to curtail liability for inadequate warnings by adopting a more stringent causation standard, because juries can resolve competently the issues involved in a determination of whether a warning is inadequate. The presumption of causation therefore should be retained by the Restatement (Third).

  • "Manufacturer Moral Hazard and the Tort-Contract Issue in Products Liability," 15 Int’l Rev. L. & Econ. 241 (1995) Abstract

    Examines the manufacturer moral hazard and the tort-contract issue in products liability in the United States. Role of increase safety improvements on the reduction of risk levels; Effects of imperfect information on the tort-contract issue; Development of model to capture relevant features of the manufacturer moral hazard problem.

  • "Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries," 83 Cal. L. Rev. 733 (1995) Abstract

    At present, no well-defined legal standards exist for assessing tort damages for nonmonetary injuries such as pain and suffering. As a result, jury awards for pain and suffering vary widely for similar injuries. In response, many states have enacted legislative reforms that limit pain-andsuffering awards. Meanwhile, many tort-reform advocates call for eliminating pain-and-suffering damages altogether. This Article argues that pain-and-suffering awards are desirable and proposes a method for calculating nonmonetary injuries that could be implemented without resort to radical reform measures. After a thorough survey of the approaches used to compute pain-and-suffering damages and current reform proposals, the author demonstrates that full compensation is desirable since eliminating or reducing nonmonetary damage awards would create significant inefficiencies and inequities. Applying well-accepted economic principles, this Article recommends that juries assess damages from an ex ante perspective that asks how much a reasonable person would have paid to eliminate the risk that caused the pain-and-suffering injury. The author shows that this methodology is appropriate for all tort cases; that it would yield reasonably accurate results despite data limitations; and that it can and should be implemented within the current system. For these reasons, the ex ante fullcompensation award is a dramatic improvement over the current approaches to calculating pain-and-suffering damages.

  • "The Political Economy of Neocontractual Proposals for Products Liability Reform," 72 Tex. L. Rev. 803 (1995)
  • "Imperfect Information, the Pricing Mechanism, and Products Liability," 88 Colum. L. Rev. 1057 (1988)
  • "The Divergence Between the Social and Private Incentives to Sue," 16 J. Legal Stud. 483 (1988) (with Susan Rose-Ackerman) Abstract

    Comments on models of Shavell, Menell and Kaplow that show divergence between social and private incentives to sue. Details on the models; Comparison of the models; Information on the broadening of policy options by a change in British rule.

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