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As Judge Jack Weinstein says, the Third Restatement of Torts 'should attempt to synthesize a tort law for the industrialized world.' The American Law Institute has taken a daring step in this direction by considering an amendment to create a unitary medical monitoring standard that would allow toxic exposure victims to request clinical testing, paid for by defendants, without requiring proof of actual, present injury. This Comment contends that the proposed amendment, with minor changes, would provide a well-needed basis for courts to allow medical monitoring classes to be certified. Passing the amendment would be a meaningful step towards clarifying the web of discordant state medical monitoring standards that have dissuaded courts from allowing monitoring claims to proceed. Further, a uniform standard could ease the procedural issues that have led courts to foreclose opportunities for global peace in complex litigation: namely, the difficulty of resolving both current and future claims simultaneously. So long as judges are willing to apply the proposed amendment, it will serve to engender meaningful improvements in the pursuit of justice for toxic exposure victims., INTRODUCTION 282 I. THE SUBSTANTIVE AND PROCEDURAL ISSUES STULTIFYING 287 THE USE OF MEDICAL MONITORING IN THE COURTS A. Putting Medical Monitoring in Context 288 1. Definition and Role 288 [...]

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The [...]

Table of Contents Introduction I. Consortium Claims II. The Palsgraf Puzzle III. Why Not Rights? IV. If Not Rights, What? V. Wrongs to Us VI. Consortium Claims Explained? VII. Extensions [...], A huge number of tort suits in the United States are captioned Plaintiff & Spouse v. Defendant. Why? The answer is at once completely obvious and deeply puzzling. The plaintiff's spouse is part of the case because, in almost every U.S. state, she has a claim against the defendant too--not for battery or negligence, as her spouse might, but for the loss of her spouse's "consortium." And yet, it's not at all clear why a spouse should have a tort claim of this kind. A plaintiff who sues in tort, Judge Cardozo once explained, must always identify "'a wrong' to herself; i.e, a violation of her own right." By this standard, however, a spouse's consortium claim seems strange. The defendant violated her injured spouse's rights, perhaps, but is it right to say the defendant violated hers too? At one point, tort law took the view that a husband had property rights in his wife, so that a wrong to his wife was a wrong to him too. That can't be the right answer today, however, and it's not clear whether there's a more egalitarian rights-based answer to give. For that reason, rights-based theories of tort law tend to say that consortium claims have no proper place in a law of private wrongs, and critics of those theories can cite consortium claims as evidence that tort isn't (all) about rights in the first place. In this Article, I suggest that both conclusions miss the mark. Consortium claims may have a natural place in a rights-based picture of tort law, so long as we have the right picture of rights (and rightsholders) in view. Partners in marriage-like relationships act together to construct a shared life, and that puts them in a position to hold joint claims against certain interferences with that life. Consortium suits make more sense, I propose, if we see them as a response to the violation of these joint claims--as a means to redress what partners in marriage-like relationships would rightly regard as "wrongs to us."

Introduction 830 I. Climate Change Adaptation and the Impending Disruption of Private Law 841 A. Private Law's No-Analog Future 843 B. Private Law in the Adaptation Footprint 849 II. GUIDEPOSTS [...], Both authors thank Amy Baddley, Robert Binkowski, and Isaiah Sorois for their research related to this article. Participants in workshops at the University of Maryland School of Law, University of Texas School of Law, and Vanderbilt Law School provided useful comments on previous drafts. A special thanks to Ed Cheng, Caroline Cox, Robin Craig, Dave Owen, Vanessa Casado Perez, Ed Richards, Joseph Schremmer, Ganesh Sitaraman, and Randall Thomas for comments on an early draft. The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as "adaptation"). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously. To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes has not yet taken off the way that the wave of high-profile lawsuits against sources of emissions causing climate change has, but it is inevitable that it will, making it ripe for attention in legal scholarship. The Article begins in Part I by highlighting several features of climate change and adaptation that will place inevitable disruptive pressure on existing doctrines and principles of private law. The new normal of climate change questions some key factual predicates embedded in private law doctrine. For example, climate change is radically moving the long-stable upper and lower extremes of multiple biophysical conditions (what scientists call "nonstationarity"), meaning individuals increasingly will be unable to accurately predict the future based entirely on past data (what scientists call the "no-analog future"). Private law nonetheless must operate in a manner that provides practical and meaningful guidance to stakeholders, which will require it to confront the new realities presented by climate adaptation, including how private individuals and entities can no longer predict the future in the same ways that they have in the past. In Part II, the Article identifies a series of evaluative guideposts to help assess when changes to doctrines and principles of private law may be needed to address impending climate adaptation disputes. Private law's basic architecture helps to define and manage relationships, clarify responsibilities, and provide remedies for harm--a tripartite framework we use in Part III to unravel a few key doctrinal pressure points that private law faces as it addresses a novel set of impending climate change adaptation claims. The principle of foreseeability--central to numerous doctrines that define relationships, responsibilities, and remedies across tort, property, and contract law--is likely to face some of the strongest pushback as we confront climate adaptation. We propose a "foreseeability of nonstationarity" principle and evaluate what that might mean for some core private law doctrines. This points towards expansion of the scope of obligations private law recognizes for various actors within their adaptation footprints. Existing private law principles can address wrongfulness even in the no-analog future of climate adaptation. It is important, however, that private law defenses recognize the nonstationarity of climate risks, as well as the lack of an analog future available to predict and address the harmful effects of climate change. We conclude that private law can and will adapt to climate change. This process will be central to providing guidance as individuals, businesses, and other private actors confront new risks and harms as society adapts to a new natural world. But the path of private law's adaption matters, and how it approaches key principles such as foreseeability will be central to its capacity to provide meaningful guidance for private stakeholders adapting to the realities of climate change.

INTRODUCTION 531 I. BANK OF AMERICA CORP. V. CITY OF MIAMI 536 A. Background on Reverse Redlining and Bank of America 536 B. Bank of America Opinion 539 II. PROXIMATE [...], The Supreme Court's recent opinion in Bank of America Corp. v. City of Miami has created fresh uncertainty around the interpretation of the Fair Housing Act. The Supreme Court held for the first time that there is a proximate cause requirement under the Fair Housing Act but expressly declined to decide the standard for meeting that requirement. This Article responds to that open question. It contextualizes Bank of America within the Court's growing body of statutory proximate cause doctrine and uses the case as a starting point for addressing the broader question of how to determine the meaning of proximate cause in all statutory claims. The Article argues that the Supreme Court and lower courts must adopt a uniform analytical framework for determining proximate cause in statutory claims. The Article demonstrates that the Supreme Court's failure to do so thus far has produced deep doctrinal incoherence, culminating in the Court's inability to articulate a standard for proximate cause under the Fair Housing Act in Bank of America. The Article proposes that courts should uniformly apply the "scope of liability" framework as set forth in the recent Restatement (Third) of Torts. It contends that the scope of liability framework properly anchors proximate cause in the statutory scheme, ensures doctrinal determinacy, and prevents improper judicial legislation. The Article then applies this framework to arrive at the proper standard for proximate cause under the Fair Housing Act. Through extensive legislative history analysis, the Article concludes that the standard for proximate cause under the Fair Housing Act is satisfied where the harm caused by unlawful discrimination results from direct effects on the housing market and falls within one of the three core areas of congressional concern underlying the Act's enactment.

I. INTRODUCTION: THE CONTEXT Two of the important theories used to establish liability in modern products liability cases are negligence and strict liability. Compensatory damages are generally awarded in products [...]

ARTICLE CONTENTS INTRODUCTION I. THE ALIGNMENT PRINCIPLE II. LOST INCOME A. The Misalignment B. Efficiency C. Non-Efficiency Considerations III. PROVING CAUSATION A. The Misalignment B. Efficiency C. Non-Efficiency Considerations IV. [...], In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damages. I call this the 'alignment principle.' One objective of this Article is to expose exceptions to the alignment principle, which I call 'misalignments.' In cases of misalignment, the risks that are accounted for in setting the standard of care are different from the risks for which liability is imposed and damages are awarded. A second objective of this Article is to suggest modifications to the law when misalignments cannot be justified. The most important objective of this Article, however, is to offer a theory of how to evaluate and contend with misalignments. Five cases of misalignment are identified and discussed in the Article. The first case illustrates how courts set the standard of care independently of the victim's level of income, but award different amounts of damages to high- and low-income victims. The second case represents instances in which causation is inherently hard to prove. In such cases, courts set the standard of care according to the expected harm, but traditionally allow no compensation when the plaintiff suffers harm but cannot prove that it was caused by the defendant's negligence. In the third case, courts account for both risks increased and decreased by the injurer when setting the standard of care, but ignore the decreased risks when awarding damages. In the fourth case, courts set the standard of care by taking into account both ordinary and unusual risks, but often refuse to impose liability for harms that materialized from the ordinary risks. Finally, in the fifth case, courts set the standard of care by considering the risks the injurer created for others, but not the risks he created for himself, even though the negligent injurer bears harms that materialized from both the risks to others and the risks to self. In all five cases, the goals of tort law would be better served by removing misalignments and equally accounting for risks both in setting the standard of care and awarding damages.

ESSAY CONTENTS INTRODUCTION I. THE ALIGNMENT OF DUTY AND DAMAGES II. THE PRINCIPLE OF MISALIGNMENT A. The Problem of Irreparable Injury B. The Misaligned Negligence Rule, Punitive Damages, and Criminal [...], 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.

Derousse v. State Farm Mut. Auto. Ins. Co., 298 S.W.3d 891 (Mo. 2009) (en banc). I. INTRODUCTION American courts have moved in fits and starts regarding emotional damages in negligence [...]

I. INTRODUCTION The concept of design defectiveness lies at the heart of products liability law. A product's design concept predetermines the extent to which use of the product will result [...]

"Over the years, courts ... used the substantial factor test to do an increasing variety of things it was never intended to do and for which it is not appropriate. [...]

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 [...]