The 2024 Tort Law and Social Equality Project Speaker Series will feature monthly presentations from scholars around the world who work on topics situated at the intersection of torts and social justice. Its aim is to foster debate and dialogue within the academic community focused on these topics and cultivate social justice tort theory as a distinctive field of inquiry.

Presentations will be hosted virtually by the University of Toronto Faculty of Law and be open to the public. They will last about 45 minutes and will be followed by a 45-minute Q&A period. Sessions will be recorded and made available for subsequent online viewing. Attendees are not expected to pre-read prescribed materials.

A full list of presenters and presentation topics, as well as Zoom links, can be found below.

Recordings of talks can be accessed on the Tort Law and Social Equality Project Youtube channel here.

This paper examines the concept of trauma as it relates to tort recoveries, featuring three contemporary contexts: rape trauma, racial trauma, and birth trauma. It explains why many trauma victims are unable to qualify for a post-traumatic stress disorder (PTSD) diagnosis, even though they experience many symptoms of PTSD. It explores the obstacles to recovery for victims of chronic racism and obstetric violence and calls for a recommitment to the “eggshell plaintiff” rule and dismantling of artificial distinctions between physical and emotional harm to respond to the intensified injuries suffered by marginalized persons in underserved communities marked by violence, injustice, poverty and deprivation.

 

Martha Chamallas is a Distinguished University Professor and the Robert J. Lynn Chair in Law Emerita at the Moritz College of Law, The Ohio State University. She is the author of The Measure of Injury: Race, Gender and Tort Law (with Jennifer B. Wriggins) (NYU Press 2010), Feminist Judgments: Rewritten Tort Opinions (with Lucinda M. Finley) (Cambridge U. Press 2020) and numerous articles exploring such topics as the devaluation of emotional harm, bias in the computation of damages and the underutilization of tort law for harms stemming from sexual discrimination and abuse.

Her most recent articles propose a negligence framework for redressing rape and articulate the contours of social justice tort theory. She is the 2022 winner of the William L. Prosser Award for her pioneering work on gender and race in tort law. She currently teaches torts at Fordham Law School.

 

 

---

It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon—the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish “but for” cause.

This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.

The Supreme Court claimed the new causation canon represents “ancient” and “long-held” principles of common law. The Supreme Court’s claims about the causation canon are easily disprovable with only a cursory review of Supreme Court cases from the past 40 years. This is not a case of a contested or difficult historic record.

With the causation canon the Court did not simply apply the common law to statutes. Instead, it created its own new federal causation standard that is not consistent with any state’s common law or even the Restatement of Torts. The Court significantly changed the common law and then magnified the significance of the change by imposing it as a default statutory interpretation canon that will apply across both federal civil and criminal statutes.

This new canon represents a significant change in the way the Supreme Court has used the common law, and it does not fit comfortably within claims made about textualism generally or substantive canons specifically. Creating a new federal common law of factual cause and imposing that newly created law as a default standard significantly raises the profile of this area of statutory interpretation and demands greater scholarly inquiry.

 

Sandra F. Sperino is the Associate Dean for Research and Faculty Development and the Elwood L. Thomas Missouri Endowed Professor at the University of Missouri School of Law. Her scholarship focuses on how courts and other actors resolve employment law disputes.

Professor Sperino is the author of two treatises in employment discrimination law: McDonnell Douglas: The Most Important Case in Discrimination Law (Bloomberg 2018) (a treatise focusing on the case and its progeny) and The Law of Federal Employment Discrimination (West 2019). Her book, Unequal: How America’s Courts Undermine Discrimination Law (w/ Thomas) (Oxford 2017), was recognized with the 2021 Civil Justice Scholarship Award from the Pound Civil Justice Institute. Her recent articles are published in the Michigan Law Review, the University of Illinois Law Review, the Alabama Law Review and the Notre Dame Law Review, among others. Her article, “The Tort Label,” was selected for the Harvard/Stanford/Yale Faculty Forum.

Prior to joining the Mizzou law faculty, Professor Sperino was the Judge Joseph P. Kinneary Professor at the University of Cincinnati College of Law. In 2013, 2017, and 2022, she received the Goldman Prize for Excellence in Teaching. In 2015, Cincinnati Law recognized her work with the Harold C. Schott Scholarship Award; in 2018 she received the Faculty Excellence Award; and the university recognized her with a Faculty-to-Faculty Research Mentoring Award in 2019.

Professor Sperino’s scholarship has been cited by numerous courts, including the Third Circuit, the Fifth Circuit, the Eleventh Circuit, federal district courts, and the Supreme Courts of Iowa, Oregon, and Hawaii. Her work has been featured in the New York Times, on NPR, and in other media outlets. She is an elected member of the American Law Institute.

In 2013 and again in 2019, she served as lead counsel on amicus briefs filed in the United States Supreme Court in cases considering the correct causal standard for federal discrimination/retaliation law. Prior to entering academia, Professor Sperino was a law clerk in the United States District Court for the Eastern District of Missouri and practiced law in St. Louis at Lewis, Rice. While at Lewis, Rice she co-authored the successful petition for writ of certiorari and the brief filed in the U.S. Supreme Court in United States v. Sell. She graduated from the University of Illinois College of Law, where she served as Editor-in-Chief of the University of Illinois Law Review.

 

---

My project explores the recent trend of local police officers increasingly bringing civil lawsuits against those that they police, particularly in high-profile situations where the police have been accused of wrongdoing. For example, police officers have initiated multiple lawsuits suing Black Lives Matter protestors, police officers have sued rapper Afroman for using footage of their search of his home in a recent music video, and a Louisville police officer who participated in the Breonna Taylor raid sued her boyfriend for shooting at him when they began the raid into the apartment. This project theorizes these suits as democratic harms that degrade the relationship between the citizenry and local governments, considers why existing tools like the fireman’s rule and anti-SLAPP legislation are inadequate responses, and offers an approach that navigates the space between the value of open courts on the one hand, and the importance of robust protest and political participation on the other.

 

Sarah L. Swan is a Professor of Law at Rutgers Law School (Newark). She teaches and researches in the areas of torts, state and local government law, criminal law, and family law. Her work has been published in the nation’s leading law reviews, including the Harvard Law Review, Michigan Law Review, Duke Law Journal, UCLA Law Review, and the Vanderbilt Law Review, among others. Prior to joining the faculty at Rutgers (Newark), Professor Swan was an Assistant Professor at the Florida State University College of Law. She has also served as an associate-in-law and fellow at Columbia Law School, and previously practiced as a litigation associate for several years, specializing in the areas of insurance and commercial litigation.

 

 

 

---

Torts – even intentional torts – were not traditionally conceived of as a means of redressing intimate partner violence (IPV). Within the last fifty years, Canadian tort law (and related limitations laws) have evolved to allow IPV survivors to seek tort-based remedies. However, these remedies have been sought rarely and have been largely limited to existing categories of intentional torts such as assault, battery, and the intentional infliction of emotional distress. These torts do not always encompass the myriad harms sustained by survivors of IPV, particularly the harms of economic abuse and coercive control. In Ahluwalia v Ahluwalia, a 2022 family law decision, Justice Renu Mandhane responded to this gap in the law by recognizing a new tort of family violence, but her decision was overturned by the Ontario Court of Appeal in 2023. Our presentation will provide an intersectional feminist analysis of the role of tort law in providing remedies for survivors of IPV, situating tort remedies within the wider context of Canadian IPV laws as well as tort theory and critiques. This wider context raises issues about access to justice and socio-economic responses to IPV for members of marginalized groups in particular.

Jennifer Koshan is a Professor in the Faculty of Law and Research Excellence Chair at the University of Calgary. Jennifer’s research and teaching focus on equality and human rights, legal responses to interpersonal violence, and access to justice. With a number of colleagues across the country, she recently completed a project on Domestic Violence and Access to Justice Within and Across Multiple Legal Systems that was funded by the Social Sciences and Humanities Research Council. Research from the project includes work published here and here. Jennifer has also been working with colleagues in Nursing and Social Work at the University of Calgary on an interdisciplinary course module on gender-based violence using virtual gaming simulation. She blogs on domestic violence and other issues on ABlawg.ca, and regularly presents her research to judges, lawyers, and other academic and professional audiences. Jennifer also sits on the National Association of Women and the Law’s Violence Against Women Working Group, and regularly works with the Women’s Legal Education and Action Fund (LEAF) on its projects.

Deanne Sowter is a doctoral candidate and Vanier Scholar at Osgoode Hall Law School. She is also a Research Fellow with the Winkler Institute for Dispute Resolution. Deanne’s research focuses on gender-based violence, family law, and legal ethics, and it has been supported by SSHRC and several prestigious fellowships and scholarships including the Honourable Willard Z Estey Teaching Fellowship and the OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies.

Deanne’s work has been published in several peer-reviewed journals and it has been cited by the Supreme Court of Canada. She has taught as an Instructor at the University of Calgary and as an Adjunct Professor at Western Law. Deanne has a JD from Osgoode Hall Law School, an LLM from the University of Toronto.

 

 

---

 

In this essay, we claim that contemporary champions of personal rights of action do not explain why and when these rights matter. Moreover, contemporary critics of these rights do not explain why all such rights should be replaced with other alternatives to the traditional system of common-law litigation, such as collective litigation. Our core thesis, by contrast, is that some personal rights of action can be valuable in and of themselves – that is, they carry freestanding value, beyond their contribution to vindicating plaintiffs’ substantive rights. On other cases, personal rights of action are legal technologies that are rightly dispensable with others if these replacements can better ensure the vindication of private plaintiffs’ rights. The key question, therefore, is not only whether personal rights of action are intrinsically valuable, but rather when. We employ the normative framework of relational justice to address these questions. 

Hanoch Dagan is the founding Director of the Berkeley Center for Private Law Theory. Professor Dagan writes and teaches primarily in the areas of private law theory, contracts, property, and legal theory. Among his many publications are over 120 articles in major law reviews and journals, such as Yale Law Journal, Oxford Journal of Legal Studies, Columbia Law Review, Michigan Law Review, California Law Review, and more. Dagan is the author of seven books, including Property: Values and Institutions (Oxford University Press, 2011), Reconstructing American Legal Realism & Rethinking Private Law Theory (Oxford University Press, 2013), The Choice Theory of Contracts (with Michael A. Heller) (Cambridge University Press, 2017), and A Liberal Theory of Property (Cambridge University Press, 2021). He edited six book, including Properties of Property (Wolters Kluwer, 2012) (with Gregory S. Alexander) and Research Handbook on Private Law Theory (Edward Elgar Publishing, 2020) (with Benjamin Zipursky). Dagan is currently working on a new book: Relational Justice: A Theory of Private Law (forthcoming Oxford University Press, 2024) (with Avihay Dorfman). Before joining Berkeley, Dagan was the Stewart and Judy Colton Professor of Legal Theory and Innovation and the Director of the Edmond J. Safra Center for Ethics at Tel-Aviv University. He has been a visiting professor at Yale, Columbia, Michigan, Cornell, UCLA, and Toronto, and delivered keynote speeches and endowed lectures in Singapore, Alabama, Toronto, Queensland, Cape Town, Monash, and Oxford.

Dorfman is a professor of law at Tel Aviv University Faculty of Law. He works in the theoretical foundations of law. He has written articles on various basic questions in private law theory and doctrine as well as on the morality of public ordering, including research on why privatization may sometimes be impermissible and on what might make political authority legitimate. In each of these studies, Dorfman focuses on the non-instrumental values that underlie key legal and political institutions. In that, his studies elaborate the non-contingent implications of the law for the possibility of establishing forms of valuable interactions between, and among, persons.

His work has appeared in Philosophy & Public Affairs, Columbia Law Review, Oxford Journal of Legal Studies, University of Toronto Law Journal, Legal Theory, Law & Philosophy, Theoretical Inquiries in Law, American Journal of Jurisprudence, Modern Law Review, and more. Dorfman is currently working on three different book projects: a tort theory book titled Conflict between Equals: A Vindication of Tort Law; a private law theory book, with Hanoch Dagan, titled Relational Justice: A Theory of Private Law (forthcoming 2025, Oxford UP); and a legal theory book, with Alon Harel, titled Reclaiming the Public (forthcoming 2024, Cambridge UP).

Dorfman is a graduate of Yale Law School (J.S.D.) and Haifa University (LL.B. and B.A. in Economics). He was a law clerk for The Honorable Aharon Barak, the (then) Chief Justice of the Supreme Court of Israel and, more recently, a visiting professor at Harvard Law School and Cornell Law School.

Courts and commentators often define discrimination in causal terms. Moreover, they often claim that the causal definition of discrimination is tracks role that causality plays establishing liability in tort law. But such articulations often trade between two different articulations of the causal showing required for a discrimination claim. In one articulation the claimant must show that the outcome would not have happened but for the discriminatory act or policy; in the other articulation the claimant must show that the outcome would not have happened but for their “protected status”—e.g., race, sex, religion. In this talk, we explain that the only the first showing is consistent with the role causation plays in tort law where the inquiry into causation is structured by a prior independent theory of duty which limits the range of counterfactuals relevant to the case. However, the Supreme Court and many legal scholars have insisted that the second articulation is the relevant causal showing in antidiscrimination and equal protection law: “but-for” the claimant’s racial, sex, religious, etc. status. We show that this so-called but-for test cannot define what counts as discrimination because it is inherently indeterminate. One cannot set up the counterfactual thought experiment without more specificity about the relevant counterfactual contrasts, and one cannot choose which counterfactual contrasts are relevant without a prior normative theory of how the defendant ought to have behaved vis-a-viz the claimant’s (e.g.) sex or racial status. This last part requires a theory of what people are owed in various domains (e.g., employment, contracts, etc.) given the social meanings and relations that constitute sex or race in our society.

Robin Dembroff is an associate professor in the philosophy department at Yale University. Dembroff works on feminist and LGBTQ philosophy, with a focus on what gender is and how it shapes social outcomes, experiences, and ways of knowing. Their current book project, Real Men on Top: How Patriarchy Weaponizes Gender, is under contract with Oxford
University Press. Dembroff's work has been published in professional journals spanning four disciplines, and appears in popular venues including Scientific American, The Boston Review, TIME, The Guardian, and The New York Review of Books. In 2019, Dembroff co-authored an amicus brief in support of gay and transgender employees with Issa Kohler-Hausmann, which was submitted to the United States Supreme Court on behalf of over seventy philosophy professors. They have given over a dozen keynotes and named lectures, and have been featured on several podcasts including Slate's Hear Me Out and Hi-Phi Nation. In 2022, Britannica named Dembroff one of twenty “shapers of the future” under 40 in academia and ideas.

Issa Kohler-Hausmann is Professor of Law and Sociology at Yale University. Born and raised in Milwaukee, she holds a Ph.D. from New York University in sociology, a J.D. from Yale Law School, and a M.A. from University of Wisconsin-Madison. Her book Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing is a mixed method study of misdemeanor courts in the age of Broken Windows policing in New York City. Her current work is about social kinds and causation, with a particular focus on the methodological and theoretical issues entailed in stating and proving discrimination claims. Admitted to practice in New York State, Eastern and Southern Districts of New York, and the Western District of Wisconsin, Kohler-Hausmann maintains an active pro bono legal practice, currently with a concentration in parole release for persons serving life sentences for crimes committed as juveniles.

---

In the presentation, I will apply a tort law and social justice approach to the case study of non-consensual intimate images. Time permitting, I will refer to a second case study of FemTech apps and wearables.

In the NCII context, I argue that both hosts and viewers should (and could) be strictly liable for breach of privacy for hosting and viewing NCIIs. Such strict liability is justified based on the notion of ‘NCII exceptionalism’ and the concomitant critique of the ‘inverted hierarchy’ of rights; on the unjustifiable regulatory gap between the way child pornography and NCII are regulated, and on analogy with the rules governing conflicts over title and the concomitant ’inalienability paradox’.

In the Femtech context, I argue that Femtech wearables implicate not only informational privacy harms but also embodied harms in a narrow sense (of undermining bodily integrity), that existing regulatory frameworks are ill-equipped to respond to that harm, and that an egalitarian privacy law might come to the rescue.

Tsachi Keren-Paz is a Professor of Private Law at the University of Sheffield. His main research areas are private law theory, tort law and gendered based harms. He is the author of three monographs Torts, Egalitarianism and Distributive Justice (Ashgate 2007, 2016 Spanish translation by Marcial Pons’ Philosophy & Law series), Sex Trafficking: A Private Law
Response (Routledge 2013) and Egalitarian Digital Privacy: Image Based Abuse and Beyond, and has published in English, Israeli, American, Canadian, Australian and Italian legal journals.

He is currently a grant holder (as Co-I) of Leverhulme Research Project Grant ‘FemTech surveillance: Gendered digital harms and regulatory approaches’ September 2022 – September 2024; and was previously a Leverhulme Fellow 2016-2018 for the project “Privacy law, gender justice and end users'; liability: 'revenge porn'; and beyond” and the Principal Investigator of an ESRC Seminar Series grant 2015-2017 “Liability versus Innovation: Unpacking Key Connections”.

---

There is a large literature and substantial case law on the prenatal torts of wrongful life and wrongful birth. Little has been written, however, on the liability pf ([prospective) parents for prenatal injury. My talk will explore some of moral issues raised by imposing such liability. I will focus on the question of the extent to which pregnant people and their partners have more demanding duties of care than third parties toward a fetus they intend to gestate. I will consider two issues that appear to bear on this question: the moral status of the fetus and the permissibility of abortion. I will argue that both have limited relevance in setting the standard of care that prospective parents are required to exercise in intended pregnancies.

David Wasserman, J.D., M.A. (psychology) has been on the Department of Bioethics faculty at the National Institutes of Health since January, 2013. Previously, he was Director of Research at the Center for Ethics, Yeshiva University. He has written extensively on ethical issues in biotechnology, neuroscience, disability, reproduction, genetics, and health care. He has co-authored two books: Disability, Difference, Discrimination, with Anita Silvers and Mary Mahowald (1998) and Debating Procreation, with David Benatar (2015)). He has co-edited three volumes: Genetics and Criminal Behavior (2001); Quality of Life and Human Difference: Genetic Testing, Health-Care, and Disability (2005); and Harming Future Persons: Ethics, Genetics, and the Nonidentity Problem (2009), and is co-editing the forthcoming Oxford Handbook of Philosophy and Disability. He has also co-edited special journal issues the ethics of enhancement, and on bioethics, risk, and probability. He is on the editorial boards of Ethics and Journal of Applied Philosophy and is a Fellow of the Hasting Center.

---