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.

Awards recognize law students Girouard, Riley

A moment to celebrate two of my ace former students, Kaitlyn Girouard and Jack Riley, who took home awards from the UMass Law Student Bar Association this spring.

Girouard earned the Excellence in Leadership Award, and Riley won the Outstanding Part-Time Student Award.

Girouard created this chart to help students navigate multiple liabilities.
© Used with permission. Contact RJ Peltz-Steele for licensing.

Girouard just finished out a spectacular year of service as my teaching assistant in Torts I and Torts II. I had to create a new virtual folder to keep track of student accolades for her mentoring. I asked Girouard to serve in this capacity not only because she excelled academically, but because she took a lead as a cheerful supporter of her own class in the first year. On her own initiative, for her study group, she created some terrific visuals to accompany my texts, a welcome complement to the pedagogy and indication of her talent for understanding learning styles.

Girouard is a Public Interest Law Fellow and leader in a range of student activities: president of the Criminal Law Society, president of the First Generation Law Students Association, and secretary of the Environmental Law Club. She came to law school with highest academic honors at Middlebury College, where she graduated summa cum laude in economics and environmental policy and served as an economic statistics tutor and faculty research assistant.

For all the workplaces that would relish having her, public service is on Girouard's heart. Already before law school, she worked summers in her native Concord, Vermont, for the Agency of Natural Resources, Sheriff's Department, and State's Attorney Office. Last summer, she worked a prestigious internship with the Massachusetts Attorney General's Office in New Bedford. She's headed back to Vermont to work in public service again this summer, this time supported by a prestigious Michael S. Dukakis Public Service Internship Award. Next academic year, Girouard will serve as a teaching assistant in Constitutional Law, further deepening her remarkable mastery of American legal fundamentals.

While Girouard was the star of her 1L Torts day section, Riley was the star of his night section, when I taught both in 2023-24. Riley is one of those exceptional people—an elite group that would not have included me—who manage to thrive in the workplace and in law school at the same time, all while maintaining a mentally healthy home life. He is a long-time manager and executive with 15 years' experience in finance, presently working for HarborOne Bank in Massachusetts. Riley is rightly lauded by professional and academic peers for his leadership skills and commitment to community service. In the law school, he also serves as a peer mentor.

There's a lot to complain about teaching in higher ed today, and I am not reticent to voice it. At the same time, even the most frustrated of us keep coming back to the classroom every fall, and no wonder, for the opportunity to meet, to learn from, and to be inspired by people such as Girouard and Riley.

Law students Costa, Osuagwu talk first 100 days

Costa & Osuagwu (WGBH)

Thrilled to see two of my star 1Ls/rising 2Ls, Cameron Costa and BJ Osuagwu, just finishing Torts II, representing and holding their own in this political dialog on WGBH (below from YouTube).

From GBH News: "The Trump administration hit 100 days of its second term marked by economic volatility, aggressive immigration enforcement and tariff talk.  Is the country headed in the right direction? We asked two people who support Trump and two people who don't on Politics IRL."

Costa is an educator and a student of legislative advocacy. Osuagwu is executive director of Healthy Waltham.

House cap of 435 is unconstitutional, prof argues

My colleague Professor Anoo Vyas has published Why Capping the House at 435 is Unconstitutional in the Penn State Law Review.

Here is the abstract.

Expanding the House of Representatives could offer several benefits, as noted by various public policy experts. It could make gerrymandering more difficult and mitigate the impact of money in our political system. Additionally, it could lessen political polarization, which some scholars argue has reached levels that threaten the long-term viability of our democracy. In fact, increasing the size of the House theoretically could impact all potential legislation at the federal level.

Congress fixed the House at 435 members nearly a century ago when it passed the Permanent Apportionment Act of 1929. Though the population of the country subsequently has increased by more than 200 million, the number of House delegates remains at 435. This Article argues that the Permanent Apportionment Act is unconstitutional because it eliminates Congress’ responsibility to assess the size of the House every ten years. This review of House size in connection with the census was a significant tool used by proponents of the Constitution during the ratification period to convince skeptics who feared the House may one day transform into an oligarchical body.

Prof. Anoo Vyas
UMass Law

The Permanent Apportionment Act violates various modes of originalism and textualism, as favored by more conservative jurists. Moreover, it runs afoul of living constitutionalism, espoused by more liberal judges. Finally, a formula, such as one that automatically adjusts House size to the cube root of the population, could avoid contentious fights while simultaneously passing constitutional muster.

As I discussed with Professor Vyas in the development of his work, I believe his thesis is important regardless of whether it precipitates an accordant Supreme Court ruling anytime soon. The impact the article can and should have is to spark serious consideration of the dysfunction of our Congress and why it has failed as an institution to meet the needs of voters. Look no farther than U.S. Rep. Mike Flood's (R-Neb.) disastrous town hall.

In fact, when Professor Alasdair Roberts lectured at the law school last week about deficiencies in the design of American government—I wrote about Roberts's lecture yesterday—Roberts specifically listed the small size of Congress, relative to the legislatures of the world's comparably large and complex polities, as a cause of our defective democracy.

Roberts explains 'real crisis' of American government

Flyer by RJ Peltz-Steele (with AI art) CC BY-NC-SA 4.0

At UMass Law last week, Alasdair S. Roberts, UMass Amherst professor of public policy, lectured on "The Real Crisis of American Government" and spoke to my international law class about his 2023 book, Superstates: Empires of the 21st Century.

In research for his next book, Professor Roberts is investigating deficiencies in the design of American government and how they might be remedied. The work follows naturally after Roberts's most recent book, The Adaptable Country: How Canada Can Survive the Twenty-First Century (2024), as the author turns his scrutiny to the United States. 

The subject could not have been more timely with the dramatic and controversial changes afoot in the federal government. Here was the teaser for the talk:

The United States isn’t facing a crisis of democracy. It’s facing a crisis of adaptability: the inability to adjust institutions to meet today’s challenges.

Prof. Alasdair S. Roberts
RJ Peltz-Steele CC BY-NC-SA 4.0

I don't want to steal Professor Roberts's thunder; his ideas will be more fully developed as the research unfolds. I will summarize two prongs of his presentation this way:

First, as Roberts put it, if one were to design a government for a polity as socially pluralistic, geographically vast, and ideologically diverse as America is today, it would not look like the system of the U.S. Constitution. The delta between what we have and the ideal is the root of our problems, which span the three branches of government.

Second, fixing things won't be easy or fast, even after, and if, we acknowledge our problems. The drifts of dysfunction have accumulated for more than a century at both federal and state levels, and it will take just as long to reverse adverse trends and to re-revolutionize—one hopes bloodlessly—American government.

Problems wrought by the unanticipated contemporary complexity of the American nation were precisely where Professor Roberts left off in Superstates, in which he pondered the expansiveness, population, diversity, and complexity, unprecedented in the history of human civilization, of the United States, European Union, China, and India. Roberts talked to my international law class about how these modern polities are and are not like extinct historical empires, and what that means for our species in an era of existential challenges such as climate change. 

Superstates has been one of my favorite nonfiction books since I read it two years ago, when Professor Roberts visited my freedom-of-information seminar. Re-reading its first chapter last week, I found it only more salient to rapidly evolving international relations.

Professor Roberts's school-wide lecture was well attended in large thanks to sponsorship by student organizations, the Federalist Society, the Law and Political Economy Society, the National Lawyers Guild, and the Veterans Law Association, for which I am faculty adviser; and by the public interest law program and the Office of the Dean, which provided pizza. I am grateful to Professor Roberts for visiting campus and to all the students, faculty, and deans who supported his visit.

Remembering Professor Frances S. Fendler

Congregation B'nai Israel
Sunday, Sept. 15, 2024, RJ Peltz-Steele CC BY-NC-SA 4.0

At Congregation B'nai Israel in Little Rock, Arkansas, on Sunday, I joined in the celebration of the life of Professor Emerita Frances Shane Fendler.

A native of Blytheville, Arkansas, Frances was a faculty member at the law school at the University of Arkansas at Little Rock, and also an alumna of the school, '82. Always an intellectual, she wrote the top paper on the July 1982 Arkansas bar exam. She clerked for the late Eighth Circuit Judge Richard Arnold and then litigated for (now) WilmerHale in Washington, D.C.

In 1986, Frances joined the faculty at Little Rock, where she taught courses such as business organizations, sales, and contract drafting for more than 30 years. She authored or co-authored articles and books, including a business organizations casebook and the Arkansas practice manual, Private Placements and Limited Offerings of Securities (2010). She served as a member of the bar, twice chairing the state association section on securities law, and she occasionally served as an arbitrator for the Financial Industry Regulatory Authority.

Most importantly, of course, Frances was a dear friend. When I struggled with the academic politics at Little Rock, she was steadfastly personally supportive, even if she did not have the bureaucratic sway to redress the situation. I did my best to be supportive, in turn, of Frances, when she battled breast cancer in the 20-aughts. I say this more because she often thanked me for it than because I deserve any credit; my recollection is rather frustration at my helplessness to do anything for her at that time. Upon her own remarkable strength, she prevailed in that first fight with cancer.

China Doll
Photo © RJ Peltz-Steele

Frances was a passionate dog lover. She was the first guest to visit my first dog, Rocky, when he came home to me, a puppy, in 2001. At the time, she had her precious China Doll, also an Australian shepherd. Frances remained always a trusted adviser on training and caring for Rocky over his nearly 18 years, right to the painful decision to end his life. My wife and I were plan B if a home in Arkansas could not have been found for Frances's beloved Honey Bear. When I visited Frances at her home in Arkansas one last time in October 2023, she gave me her cherished ceramic Aussie, a remembrance of China. The statuette, literally a "china doll," now stands guard over the ashes of my Rocky.

When we were together in 2023, we talked of all things big and small while organizing the papers of her father, the renowned Arkansas attorney Oscar Fendler. Most of Oscar's papers already resided at the archives of the library at the University of Arkansas at Fayetteville (UAF). But Frances had held back some of the more personal items, such as photographs and handwritten notes. She entrusted me with one treasure in particular: Oscar's unpublished memoir. With the help of research assistants, I am in the process of editing the book for publication, in accordance with Frances's wishes.

Many people helped to organize Frances's affairs in the last weeks. I express my especial gratitude to Linda, who took in Honey Bear; to Susan, who, with help from Melissa and Jessie, saw to the final dispatches to UAF; and to Tom and Suzy, who visited Frances often.

When Frances was young, from ages 19 to 21, she lived and was treated for depression at the Austin Riggs Center, a residential facility in Stockbridge, Massachusetts. She long kept that part of her life a secret, she explained to me in 2023, because of the stigma attached to mental illness. But in recent years, and especially contemplating her own end of life, she recognized that there need be no stigma. She had no shame in it, she told me; in fact, she said, those years, when at last she learned how to manage the darkness that had dogged her, and she made friends who understood, were the best two years of her life. She wanted people to know about her experience in the hope of inspiring others who struggle with depression to seek treatment.

Soon after her retirement from teaching, Frances was diagnosed with ovarian cancer. Having gone ten rounds with cancer before, and not having been given a hopeful prognosis, she chose to eschew treatment in favor of home hospice. Some weeks ago, the pain management in Arkansas became ineffective, and Frances relocated to Celia's House Hospice in Medford, Oregon. She was blissfully happy at the beautiful property when I spoke with her by telephone the week before she died. When the cancer reasserted itself, she declared, "Give me the pills," as she told me she would. At age 70, she availed of medical aid in dying (MAID) under Oregon's Death With Dignity Act. As her eulogizer put it Sunday, Frances lived and died on her own terms.

My life is richer for Frances Fendler having been in it.