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Robert S. Marx Lecture featuring Victor E. Schwartz, Partner - Shook, Hardy & Bacon L.L.P.

Forces That Shape Tort Law: Immunity, Overkill, and a Rational Path to the Future

Thursday, February 17, 2011
12:15pm - 1:15 pm
College of Law - Room 114

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To register for the lecture, contact Cheryl DelVecchio at 513.556.0063 or

From the time I first studied tort law in law school, taught the subject at the University of Cincinnati College of Law and elsewhere, and to the present day, I found tort law a fascinating legal subject because it is organic. It is not fixed in a written statute, but developed through the common law process and always subject to change.

The forces that shape tort law can result in overly restrictive rules. For example, preventing a slightly negligent plaintiff’s claim when he has been seriously injured by a defendant’s negligent conduct is unfair. On the other hand, refusing to let a jury know that a plaintiff’s drunk driving was a principal cause of his injury and placing the entire responsibility on a defendant is over kill against a partially responsible defendant.

There are forces that shape tort law that are not legal, but social. They influence the judges who write the law. Sometimes, they are hidden from view and other times quite blatant. One area that is a paradigm of unfair restrictions and subsequent overkill has been the law of tort immunities. Once a barrier to any claim, after tort immunities were eliminated little or no thought was given to what duties would be placed on the previously immune defendants. We will examine some of these crucial areas, particularly with respect to religious institutions and show how social forces have shaped this developing area of law. We will suggest guidelines that may assist judges in making their future determination based on rational thought and actual facts.


Victor E. Schwartz chairs the Public Policy Group at Shook, Hardy & Bacon. He co-authors the nation’s leading torts casebook, Prosser, Wade & Schwartz’s Torts (11th ed. 2005), and authors Comparative Negligence, the principal text on the subject. His amicus briefs and articles on key public policy issues have been cited in decisions by the Supreme Court of the United States and state supreme courts.

Schwartz is former dean of the University of Cincinnati College of Law and currently serves on its Board of Visitors. During his academic career, he litigated cases on behalf of plaintiffs, and secured the first punitive damages award in the Midwest against a manufacturer of a defective product. Today, Schwartz serves as general counsel to the American Tort Reform Association, and co-chairs the American Legislative Exchange Council’s (ALEC) Civil Justice Task Force. He was a recipient of The Jeffersonian Award, ALEC’s highest honor bestowed on persons in the private sector.

Schwartz is the only defense attorney in the United States to serve on the advisory committees of all three of the American Law Institute’s Restatement (Third) of Torts projects: Products Liability, Apportionment of Liability, and General Principles. He chaired the federal government’s Inter-Agency Task Force on Product Liability and the Department of Commerce’s Inter-Agency Task Force on Insurance and Accident Compensation. Additionally, he was awarded the Secretary of Commerce’s Medal of Excellence for his service.

Schwartz has been named by The National Law Journal as one of the 100 most influential lawyers in the U.S. and by Washingtonian magazine as one of the top lawyers and lobbyists in Washington, D.C. In 2009, he received a Burton Award for excellence in legal writing. He has been included in the 2010 edition of Expert Guides: Guide to the World's Leading Product Liability Lawyers.