Updated 'TORTZ' features latest on Amazon liability, Texas 2-step, DaBaby defamation foes, much more

New 2025 editions of TORTZ: A Study of American Tort Law, volumes 1 and 2 are posted and ready for academic year 2025-26.

Two-volume TORTZ is free to download at SSRN: volume 1 and volume 2.

The books can be purchased in well bound, paperback hardcopy, both volumes for about US$61 plus shipping, from Lulu.com. The price is cost in the United States and just a couple dollars more elsewhere in the world.

Revisions in the 2025 edition include:

Premises Liability

• Discussion of Varley v. Walther (Mass. App. Ct. 2025) on "open and obvious" dangers in premises liability.

Product Liability

• Discussion of Amazon's product liability exposure, including the 2025 order of the Consumer Product Safety Commission.
• Discussion of the Texas two-step, including its rejection In re LTL Mgmt., LLC (3d Cir. 2023), and Sen. Sheldon Whitehouse's (D-R.I.) bill, the Ending Corporate Bankruptcy Abuse Act.

Life and Death

• Revised explanation and distinction of "wrongful birth," "wrongful life," and "wrongful conception" actions.
• Discussion of the waning "suicide rule" in the context of the wrongful death suit by the family of Boeing whistleblower John M. Barnett in Stokes v. Boeing (D.S.C. 2025).
  

Government Immunity

• Discussion of Justice Clarence Thomas's displeasure with the Feres doctrine, dissenting from denial of certiorari in Carter v. United States (U.S. 2025).
• Discussion of 17 plaintiff families' victory in the bellwether Pearl Harbor-Hickam AFB water contamination trial, in Feindt v. United States (D. Haw. 2025).
  

Public Nuisance

• Note of Trumbull County v. Purdue Pharma (Ohio 2024), according with Okla. v. Johnson & Johnson (Okla. 2021), on opioids and product liability, excerpted in the book.
• Note of the Virgin Islands public nuisance lawsuit against Coca-Cola and Pepsico over single-use plastics, Commissioner v. Pepsico (V.I. Super. Ct. filed 2025).
• Note of Oklahoma's dismissal of a public nuisance claim over the Tulsa Race Massacre in Randle v. Tulsa (Okla. 2024).

Media Torts

• Discussion of the latest developments and Rule 11 sanctions in the battery and defamation litigation between promoters and rapper DaBaby, pending appeal from Carey v. Kirk (S.D. Fla. 2025).
• Update on impeached South African Judge John Hlophe's vendetta against former High Court colleague Judge Patricia Goliath, who innovated on anti-SLAPP in Mineral Sands Resources Ltd v. Reddell (High Ct. Wn. Cape Feb. 9, 2021) (upheld).
• Update on the enactment of revenge porn legislation in Massachusetts, the 49th state adopter, and the latest data protection bill in Massachusetts.

'DaBaby' Jonathan Kirk
HOTSPOTATL via Wikimedia CC BY 3.0

Business Torts

• Discussion of the expansion of civil RICO by the Supreme Court in Medical Marijuana v. Horn (U.S. 2025).

Civil Rights

• Discussion of the landmark decision in climate change litigation in Europe, VKSS v. Switzerland (Eur. Ct. Hum. Rts. 2024), in contrast with the dismissal of Juliana v. United States (9th Cir. 2024).
• Note of the plaintiff victory in the Abu Grahib torture case, Al Shamari v. CACI (E.D. Va. 2024).
• Update on the real-life "Hotel Rwanda" protagonist's lawsuits against Rwanda and GainJet, the former defendant dismissed, Rusesabagina v. Rwanda (D.D.C. 2023), and the latter case, Rusesabagina v. GainJet (W.D. Tex. 2024), now pending appeal.

New Resources

• References to new audiovisual productions related to tort law and cases, such as "What Happened to Karen Silkwood?" on Impact x Nightline (2024); the latest on table saws from NPR: Planet Money (2024); Nicole Piasecki's "Dear Alice" from This American Life (2024); the documentaries Downfall: The Case Against Boeing (2022), and Youth v Gov (2020) (re Juliana v. United States), both now available on Netflix.
• References to recently published work on tort law and theory by Ken Abraham & Catherine Sharkey; Andrew Ackley; Christopher Ewell, Oona A. Hathaway, & Ellen Nohle; Dov Fox & Jill Wieber Lens; Kate Falconer, Kit Barker, & Andrew Fell; Jayden Houghton; Michael Law-Smith; Anatoliy Lytvynenko; Michael Pressman; Joseph Ranney; and Sarah Swan.

As in past editions, the coverage includes all of the fundamentals of common law tort, as well as full introductory treatments of  

• defamation, 
• privacy,  
• interference, and  
• private and public nuisance, 

and introductions to  

• business torts, 
• the Federal Tort Claims Act, 
• 'constitutional tort,' and  
• worker compensation and alternative compensation systems. 

Printed in color, Tortz is replete with

•   'RED BOX'   treatments of fundamental rules to help students prepare for the bar exam, 
•   'BLUE BOX'   bibliographies of suggested further readings,
•   'YELLOW BOX'   assignments to online readings and audiovisual materials, and
•   'GRAY BOX'   state differences for Massachusetts bar candidates, or as demonstrative.

Teaching Trump: Four Thoughts for Faculty

Saturday morning, at the annual meeting of the Law and Society Association (LSA) in Washington, D.C., I served on a panel about "Teaching Law in the Trump Era."  My thanks to panel chair John Bliss, University of Denver Sturm College of Law, Swethaa S. Ballakrishnen, UC Irvine School of Law, and other founders and leaders of the new LSA Collaborative Research Network #19 on legal education, for organizing this program.  Here is the panel abstract:

The Trump presidency has reportedly attracted a new wave of law school applicants who are motivated by issues ranging from sexual assault, to racial justice, to the rights of immigrants, to the basic foundations of the rule of law. In this context, how do U.S. law teachers address legal and political headlines that many faculty and students find disconcerting? This session offers diverse perspectives on this question from accomplished law faculty who teach a wide range of legal curriculum.

Trump in the classroom.  Literally.  White House photo.

For my bit, I focused on President Trump-related materials I used to teach defamation in Torts II in March 2019.  In class, I assigned as reading the complaint in Zervos v. Trump—before the New York Appellate Division at the time—alongside Justice Thomas's opinion on cert. denial in McKee v. Cosby.  The pairing of a pleading and a scholarly judicial opinion allowed a study first of tort doctrine, and then of constitutional and policy dimensions, all the while with a running contemporary thread of "#MeToo," which ran back to our fall 2018 study of intentional torts.  Outside of class, in review sessions, I used Melania Trump's 2017-settled complaint against blogger Webster Tarpley (Variety).  These "Trump cases" afford ample opportunity to explore skills and practice collateral to the law of torts, such as litigation strategy, legal professionalism, and client counseling.

Professor Bliss suggested that we fashion our presentations around student feedback and reactions to Trump-related materials.  To that end, I solicited input from my class (and from colleagues in academic support).  Five students generously took time from their after-exams pursuits to oblige with deeply thoughtful, sometimes moving, and thoroughly informative feedback.  I am grateful to them.  I extracted their words, anonymized, for use in my panel time.  I won't reiterate them here as to further protect their anonymity. But I'll share four conclusions about "teaching Trump," drawn from this feedback. 

(1) Plan well and stay on course.  Because this content tends to evoke strong emotions, it is important for the teacher to map out an agenda about where the class discussion should go, in consonance with what the materials offer.  Then the class must be kept on task.  This might require more involved moderation of class discussion than is the norm for some teachers.  Students will sometimes make observations driven by emotion and supposition, and that's OK.  But those observations need to be responded to with channeling into constructive analysis.  If for example a student says that the plaintiff is grubbing for money, that's a great springboard for legitimate questions, without having to challenge or verify the premise: How does tort doctrine safeguard, or not, against disingenuous claims?  What are the incentives or impediments for plaintiffs and their lawyers, born of transaction costs?  How does a lawyer counsel a client about uncertainty of recovery?

(2) Avoid assumptions and keep an open mind.  The teacher should not suppose that she or he knows what the students are thinking, whether as a group or to an individual.  Someone in the class is a Trump voter and believes he is America's only way forward.  Someone else regards Trump as a source of post-traumatic stress.  They're not always showing you these reactions, for various reasons.  And they're not necessarily who you think they are. Take care not to make assumptions about where people stand.  One student who wrote to me really forced me to turn over the immigration "wall" issue in my own mind, and I learned a great deal from her different perspective.  Isn't the great thing about being a professor that continuing education is part of our job?

(3) Model professional skills.  When a teacher leads a law school class, students are learning doctrine, but they're also "meta-learning" lawyering skills such as leadership and dispute resolution.  How a teacher manages conflict in the class and moderates discussion will be as important and memorable a lesson for some students than the subject matter being taught.  For this reason, teachers need to be deliberate in and thoughtful about pedagogical methodology.

(4) Lighten up.  Yes, our content in law school can be heavy.  We have to talk about things in the classroom that reveal the absurdity of "trigger warnings," because life doesn't come with a warning label, and law is about life.  But it is possible—if hard—to engage with heavy issues and to do so with a light heart.  Guidance can be drawn from some recent developments in comedy—think Hannah Gadsby and Ellen DeGeneres—to show that humor can be accomplished without it being at anyone's expense.  Don't get me wrong; I love a good insult comic.  Just not at the front of the classroom.  One student who wrote surprised me with the observation that a light joke I made diffused tension over the fraught subject and made students feel comfortable participating.  Now if only I could remember what I said.

These conclusions entail work for any teacher, no matter how experienced.  I am far, far from excellent in realizing these lessons.  But feedback from my students has given me goals.

Thanks also to excellent co-panelists at LSA, and to all the teachers and scholars who contributed to the roundtable discussion.  I have appropriated many of their insights and ideas for further exploration and experimentation.  Co-panelists were Scott Cummings, University of California, Los Angeles; Rashmi Goel, University of Denver Sturm College of Law; and Gwendolyn Leachman, University of Wisconsin Law School.

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Attention faculty!

 Dean Peltz-Steele and I are collaborating to produce an open-source resource for faculty in law and related fields to teach law and policy through "Trump case" materials.

Stay tuned for more information about "Trump Law."

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Let's 'open up our libel laws': I'm with Thomas

There's been a blustering rash of hand-wringing in journalism and First Amendment circles over the recent concurrence to cert. denial by Justice Thomas in McKee v. Bill Cosby (SCOTUSblog).  The case would have asked when a victim of sexual assault becomes a limited-purpose public figure after publicizing her allegation.  Based on First Amendment doctrine dating to the 1960s, famously including New York Times Co. v. Sullivan (U.S. 1964) (Oyez), a limited-purpose public figure must prove actual malice to prevail in a defamation claim.  That's very hard to do.  The First Circuit affirmed dismissal in favor of Cosby. 

"Actual malice"—ill named, as it does not have to do with anger or ill will, which is "common law malice"—is akin to the recklessness standard of tort law.  In a defamation context, "actual malice" is said to mean "knowledge of falsity or reckless disregard as to truth or falsity."  Supreme Court precedents late in the civil rights era amped up "reckless disregard" so much that for many years, actual malice seemed to be a nearly "fatal in fact" test.

Based only on casual observation, I posit that actual malice's rigor has been weakening in recent years.  Courts have begun to recognize the need to fine tune the balance between reputational and speech rights.  Meanwhile, "actual malice" has had a rough go in the world, even among our fellow human rights-loving western democracies.  Actual malice has been largely rejected as a functional standard for its insufficient protection of reputation as a human right countervailing the freedom of expression.  (My colleague Prof. Kyu Ho Youm paints a different picture.  I deeply admire Prof. Youm, a dear friend, and his work, which I have assigned students to read.  But I sharply disagree with his conclusion on this point.)

In his concurring opinion in McKee, Thomas challenged the constitutional imperative of the actual malice standard, which is so much higher than negligence and strict liability.  His argument was not so narrow, however.  Broadly, he proposed that the Court reconsider the fundamental premise that the the federal Constitution, through the First Amendment, should reshape state tort law, as the Court held it did in the civil rights-era cases.  Thomas is a champion of textualism and originalism, and it must be admitted that the Court's First Amendment doctrine from the latter-20th century is on thin ice in those schools of constitutional interpretation.

This blog, any blog, is far from an adequate venue to tackle this question.  I just want to do my part to raise consciousness of Thomas's proposition, and to dare to say, I agree.  For many years now, I have harbored a deep suspicion of Sullivan and progeny.  In my academic circles, especially in the free speech and civil liberties crowd, I have felt something like a church deacon harboring a dark secret.  No longer; I confess:

Actual malice swung the pendulum way too far in favor of defendants.  I get why, and I appreciate the good intentions.  Sullivan arose against the tragic reality of the Jim Crow South and the potential national crisis precipitated by desegregation.  But even Anthony Lewis, in his definitive book on Sullivan, Make No Law, recognized that the Court's federalization and constitutionalization of state defamation law had the ill effect of freezing the process of common law evolution.  As a result, we have been deprived of the opportunity to experiment with fair and equitable policy alternatives, such as media corrections as a remedy.

I'm not arguing to "open up our libel laws," quite as President Trump proposed.  But I'm with Justice Thomas.  Sullivan is not holy writ.