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http://ssrn.com/abstract=1990325
 
 

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The Vicissitudes of Tort: A Response to Professors Rabin, Sebok & Zipursky


Catherine M. Sharkey


New York University School of Law

January 23, 2011

DePaul Law Review, Vol. 60, 2011
NYU Law and Economics Research Paper No. 12-01

Abstract:     
This response essay probes three themes that tie together three articles submitted for a tort symposium on “The Limits of Predictability and the Value of Uncertainty.” First, I explore the use of unpredictability as a code word for an assault on tort doctrine in response to an out-of-control tort system. In his historical account of the evolution of tort, Professor Rabin focuses on the canonical “no duty” rules of the nineteenth century and the contemporary rules-based limitations on open-textured liability in the twentieth century. But largely missing from this account is the story of rules promoting tort liability, such as strict liability, vicarious liability, negligence per se, and the like. Second, I probe the link between unpredictability and insurance. I argue that Professor Sebok’s efforts to distinguish champerty from illegal gambling and to analogize it to a form of insurance will inevitably fall short of establishing social acceptance or embrace of the practice. Third, I highlight the role of the U.S. Supreme Court and its incursions into the state law domain of tort in the name of predictability. Professor Rabin is doubtful that the U.S. Supreme Court will achieve great strides in its endeavor to quell unpredictability in punitive damages. Professor Zipursky has considerable angst about the Court’s making inroads into privacy and emotional distress torts. Such incursions are in keeping with the Court’s longer-term project of procedural reform of the civil litigation system in the name of unpredictability, but are novel in their ambition to launch frontal attacks.

Number of Pages in PDF File: 19

Keywords: tort, predictability, unpredictable, uncertainty, Rabin, Sebok, Zipursky

JEL Classification: K13, K41

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Date posted: January 23, 2012 ; Last revised: January 27, 2012

Suggested Citation

Sharkey, Catherine M., The Vicissitudes of Tort: A Response to Professors Rabin, Sebok & Zipursky (January 23, 2011). DePaul Law Review, Vol. 60, 2011; NYU Law and Economics Research Paper No. 12-01. Available at SSRN: http://ssrn.com/abstract=1990325

Contact Information

Catherine M. Sharkey (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6729 (Phone)
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