Tort Litigation Between Spouses: Let's Meet Somewhere in the Middle
Bar-Ilan University - Faculty of Law; Yale Law School; Sha'arei Mishpat College; Visiting Professor - Duke Law School
November 26, 2009
Harvard Negotiation Law Review, Vol. 15, pp. 201-265, 2010
In the past, and, to a certain extent, even at present, immunities existed in common law against tort litigation within the family. Is it appropriate today to block such claims, or should they be considered in the same way as any other tort suit? The present essay will address this question, by examining the possibility of establishing a delicate balance between the individualistic approach, which focuses on realizing the autonomy of the individual to sue for harm done to him, and the family-collectivist approach, which attempts to determine what is best for the family as a whole, and is concerned that legal intervention in its affairs may be more detrimental than beneficial.
The assumption in this essay will be that, although we are talking of a claim under tort law, rather than under family law, and that this claim may be consistent with the goals of tort law, one cannot ignore the fact that this is not a suit involving two strangers. Moreover, since these are particularly charged, emotional claims, the real remedy desired may at times not be financial compensation at all, but some other remedy, an emotional one, which the law cannot provide, but which might be provided specifically through extrajudicial proceedings. But requiring the parties to take part in such a proceeding under the auspices of the court (e.g. mandatory mediation) is itself problematic, since these are essentially voluntary proceedings.
I will propose a desirable model that balances the two approaches, the individualistic and the family. This model will present a theoretical and practical framework for hearing such claims, applicable to the different stages of tort proceedings in the courts, while also making use, in the framework of such proceedings, of quasi-mandatory extrajudicial processes.
Number of Pages in PDF File: 66Accepted Paper Series
Date posted: November 27, 2009 ; Last revised: June 27, 2010
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