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Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963); Campbell v. Campbell, 114 S.E.2d 406 (W. Va. 1960) (dealing with negligence claims). See also Fischer v. Toler, 401 P.2d 1012 (Kan. 1965) (dealing with claims for assault and other intentional torts).


For discussion of developments in immunity from intrafamilial tort litigation in the United States, see Dan B. Dobbs & Paul T. Haydan, Torts and Compensation, 441-46 (5th ed. 2001); Leonard Karp, Domestic Torts:Family Violence, Conflict, and Sexual Abuse 283-85 (Vol. I, Rev. ed. 2005); Richard A. Epstein, Torts, 613-14 (1999) (arguing that courts have attempted to find other justifications (or excuses) for immunity after the abrogation of the traditional rationale due to women’s successful struggle for full civil rights); Keeton et al., supra note 9, at 901-04; Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359 (1989); Neeley, supra note 11; Haley, supra note 2; Ira Mark Ellman & Stephen D. Sugarman, Spousal Emotional Abuse as a Tort?, 55 Md. L. Rev. 1268 (1996); McCurdy, supra note 32; Sanford, Personal Torts Within the Family, 9 Vand. L. Rev. 823 (1956); Litigation, supra note 16, at 1650-54.


In the words of the court in the Ritter case, in angrily prophetic tones: “Nothing could so complete that severance [of the marriage relationship] and degradation, as to throw open litigation to the parties. The maddest advocate for woman’s rights, and for the abolition on earth of all divine institutions, could wish for no more decisive blow from the courts than this. The flames which litigation would kindle on the domestic hearth would consume in an instant the conjugal bond, and bring on a new era indeed--an era of universal discord, of unchastity, of bastardry, of dissoluteness, of violence, cruelty, and murders.” Ritter v. Ritter, 31 Pa. 396, 398 (1858). Cf. Heino v. Harper, 759 P.2d 253 (Or. 1988) (rejecting an argument that an intrafamilial tort lawsuit encourages enmity between spouses on the grounds that there was no clear research on the subject); Epstein, supra note 37, at 614-15 (intrafamilial suits “could lead to discord within the family”). Immunity in interspousal claims was applicable to claims based on both negligently and intentionally inflicted personal injury. See Litigation, supra note 16, at 1650-51.


Courts aimed for “preservation of happy homes,” in the words of the court in Price v. Price, 732 S.W.2d 316, 317 (Tex. 1987) and “conjugal happiness,” in the words of the court in Abbott v. Abbott, 67 Me. 304 (1877). See also Litigation, supra note 16, at 1651. Proponents of this approach argue that rights and duties are a legal matter, while the happiness of the parties is not such. See id.


Steele v. Steele, 65 F. Supp. 329 (D.C. Cir. 1946); Goode v. Martinis, 361 P.2d 941 (Wash. 1961); McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953); Austin v. Austin, 124 N.Y.S.2d 900 (N.Y. App. Div. 1953); Commonwealth v. George, 56 A.2d 228 (Pa. 1948); Rheinstein, supra note 18, at 246-48 (arguing that for couples living together, extrajudicial remedies should be sought, particularly when the principal damage is pain and suffering).


Litigation, supra note 16, at 1651.


See, e.g., Johnson v. Johnson, 77 So. 335 (Ala. 1917); Prosser v. Prosser, 102 S.E. 787 (S.C. 1920); Crowell v. Crowell, 105 S.E. 206 (N.C. 1920), rehearing denied 106 S.E. 149 (N.C. 1920); Klein v. Klein, 376 P.2d 70 (Cal. 1962); Cramer v. Cramer, 379 P.2d 95 (Alaska 1972); Brooks v. Robinson, 284 N.E.2d 794 (Ind. 1972).


See generally Lewis v. Lewis, 351 N.E.2d 256 (Mass. 1976) (thoroughly discussing evolution of spousal immunity); Beaudette v. Frana, 173 N.W.2d 416 (Minn. 1969) (abrogating spousal immunity).


Restatement (Second) Torts § 895F(1) (1979).


Winn v. Gilroy, 681 P.2d 776 (Or. 1984); Vandall et al., supra note 15, at 686-87. For such an interpretation, see Epstein, supra note 37, at 614.


See, e.g., Lusby v. Lusby, 390 A.2d 77 (Md. 1978), holding modified in part by Bozman v. Bozman, 830 A.2d 450 (Md. 2003); S.A.V. v. K.G.V., 708 S.W. 2d 651 (Mo. 1986); Boone v. Boone, 546 S.E.2d 191 (S.C. 2001); Waite v. Waite, 618 So.2d 1360 (Fla. 1993); Wisniewski v. Wisniewski, 485 N.E.2d 248 (Ohio 1985); Hack v. Hack, 433 A.2d 859 (Pa. 1981). In some jurisdictions, immunity was abrogated even in cases of negligence where the harm was far from intentional, as in the case of a husband whose wife was injured when he negligently failed to clear the snow from the steps of the house. See Brown v. Brown, 409 N.E. 2d 717 (Mass. 1980). In some states, legislation was passed to abrogate the immunity. See, e.g., D.C. Code 1981 § 30-201. In South Carolina, not only was the immunity annulled, but it was described as contrary to natural justice and public policy. South Carolina will even hear intrafamilial claims for negligence that occurred in a state where immunity exists. Boone, 546 S.E.2d 191. See Dobbs & Haydan, supra note 37, at 443.


See Heino v. Harper, 759 P.2d 253 (Or. 1988); Vandall et al., supra note 15, at 688 (explaining that this is the case since the immunity was originally created by the courts).


Price v. Price, 732 S.W.2d 316 (Tex. 1987).


See, e.g., Raisen v. Raisen, 379 So.2d 352 (Fla.1979) (dismissing action as barred by doctrine of interspousal immunity); Christie et al., supra note 32, at 545. For additional judgments from different states, see Karp, supra note 37, at 284, and Keeton et al., supra note 9, at 903. Even when intrafamilial torts are permitted, relatively few claims have been submitted. In particular, commentators have noted a significantly low proportion of tort claims against spouses for violence. See Jennifer B. Wriggins, Toward a Feminist Revision of Torts, 13 Am. U. J. Gender Soc. Pol’y & L. 139, 155 (2005); Douglas Scherer, Tort Remedies for Victims of Domestic Abuse, 43 S. C. L. Rev. 543, 565 (1992).


Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978); see also Keeton et al., supra note 9, at 909.


Rupert v. Steinne, 528 P.2d 1013 (Neb. 1974); Surratt v. Thompson, 183 S.E.2d 200 (Va. 1971); Transamerica Ins. Co. v. Royle, 656 P.2d 820, 823-24 (Mont. 1983).


Asplin v. Amica Mutual Ins. Co., 394 A.2d 1353 (R.I. 1978); Herget Nat’l Bank of Pekin v. Berardi, 356 N.E.2d 529 (Ill. 1976).


See Abrams et al., supra note 1, at 371-76 (stating that the ruling in Bozman v. Bozman, 830 A.2d 450 (Md. 2003) in Maryland is a good example, although not the first, of the breakthrough regarding the abrogation of immunity in instances of intentional torts that do not require that the behavior have been particularly outrageous). For similar severe instances, see Windauer v. O’Connor, 485 P.2d 1157 (Ariz. 1971); Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Bounds v. Caudle, 560 S.W.2d 925 (Tex. 1977), modified by Price v. Price, 732 S.W.2d 316 (Tex. 1987). The court in Price said, “It is difficult to fathom how denying a forum for the redress of any wrong could be said to encourage domestic tranquility.” 732 S.W.2d at 318. See also Lusby v. Lusby, 390 A.2d 77 (Md. 1978) (a particularly severe case in which the husband raped his wife at gunpoint and then subsequently assisted two others to rape her); Apitz v. Dames, 287 P.2d 585 (Or. 1955). Note that in Utah, a case of negligence, without intent or malice, did not reach the hearing stage, and so no doctrine was expressed, whereas in Arizona, in a case involving a couple from Utah, the appeals court in Arizona applied the doctrine from Utah even in a case of negligent harm. See Lucero v. Valdez, 884 P.2d 199 (Ariz. 1994). For details, see Christie et al., supra note 32, at 544. In some states, the immunity was revoked only for instances of intentional infliction of emotional distress, and the courts generally required in such cases a very high level of malicious behavior, such as an attempt to murder the spouse or severe deception. See Feltmeier v. Feltmeier, 798 N.E.2d 75 (Ill. 2003); Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993); Vance v. Chandler, 597 N.E.2d 233 (Ill. 1992); Whelan v. Whelan, 588 A.2d 251 (Conn. Super. 1991). In other cases the claim was denied. See Chen v. Fischer, 810 N.Y.S.2d 96, 98 n.2 (2005); Hakkila v. Hakkila, 812 P.2d 1320 (N.M. Ct. App. 1991). For discussion and expansion on the required level of malice (the interpretation of outrageous conduct) and on the differences in rulings between different states, see Abrams et al., supra note 1, at 384-97; Christie et al., supra note 32, at 545; Ellman & Sugarman, supra note 37, at 1328-1329; Seymour Benson & Leigh Knisken, Interspousal Tort Liability: Abrogation of Interspousal Immunity, 68 Fla. B.J. 62 (1994).


In some states, such as Georgia and Louisiana, immunity even appears in legislation. See Ga. Code Ann. § 19-3-8 (2009); La. Rev. Stat. Ann. § 9:291 (2008). In Georgia, immunity exists, see Gates v. Gates, 587 S.E.2d 32 (Ga. 2003), but certain limitations were applied through judicial rulings, and so Louisiana is apparently the only state that preserves the immunity in full. See also Christie et al., supra note 32, at 544. In Delaware, courts have differed as to whether to overturn legislature-created immunity. See Alfree v. Alfree, 410 A.2d 161, 163 (Del. 1979) (leaving decision to eliminate spousal immunity to legislature), overruled by Beattie v. Beattie, 630 A.2d 1096, 1098-1100(Del. 1993) (abrogating spousal immunity because it “no longer meets the needs of society”); Keeton et al., supra note 9, at 903.


Chen v. Liao, 420 F. Supp. 472 (D. Del. 1976); Gaston v. Pittman, 224 So. 2d 326 (Fla. 1969); O’Grady v. Potts 396 P.2d 285 (Kan. 1964); Hamilton v. Fulkerson, 285 S.W.2d 642 (Mo. 1955); Pearce v. Boberg, 510 P.2d 1358 (Nev. 1973). Some judgments explicitly recognized such suits, although with certain restrictions. See, e.g., Moulton v. Moulton, 309 A.2d 224 (Me.1973); Childress v. Childress, 569 S.W.2d 816 (Tenn. 1978).


Windauer v. O’Connor, 485 P.2d 1157 (Ariz. 1971); Steele v. Steele, 65 F. Supp. 329 (D.C. Cir. 1946); Lorang v. Hays, 209 P.2d 733 (Idaho 1949); Goode v. Martinis, 361 P.2d 941 (Wash. 1961); Burns v. Burns, 526 P.2d 717 (Ariz. 1974). In some states, such as Florida, both exceptions apply together; that is, that one may sue for pre-marital torts, as long as the suit is filed after the termination of the marriage. See Gaston, 224 So. 2d at 326.


Shoemaker v. Shoemaker, 407 S.E.2d 134 (Ga. App. 1991).


See Keeton et al., supra note 9, at 910.


Litigation, supra note 16, at 1651.


Id. at 1652.


Abrams et al., supra note 1, at 369.


See Keeton et al., supra note 9, at 906-07, 909, 916.


Certain of these arguments are very closely related, but they are presented separately in legal judgments and in the literature, and that is how I will present them here.


For various perspectives on this argument, see Luther v. Borden, 48 U.S. (7. How.) 1, 47 (1849); Litigation, supra note 16, at 1655-59; Austin v. Austin, 124 N.Y.S.2d 900 (N.Y. App. Div. 1953); Miller v. Miller, 42 N.W. 641, 642 (Iowa 1889); see also Litigation, supra note 16, at 1656-58 (comparing this issue to the non-justiciability of political issues and their unsuitability to be judged due to the delicacy and complexity of the issues and the need to take into account social and psychological issues when ruling on them).


Balfour v. Balfour, [1919] 2 K.B. 571, 579.


Alexander M. Bickel, Foreword. The Passive Virtues, 75 Harv. L. Rev. 40 (1961); Litigation, supra note 16, at 1657.


Epstein, supra note 37, at 613.


Smith v. Smith, 287 P.2d 572, 584 (Or. 1955); Litigation, supra note 16, at 1657.


Litigation, supra note 16, at 1658-59 and references therein.


Abrams et al., supra note 1, at 370. The procedural question here is even broader. For example, could a tort suit be filed following divorce proceedings and separate from them? Would it be possible to file such a tort suit subsequently, without the risk of double jeopardy, if the tort argument is rejected in the divorce proceedings? If so, may use be made of facts established in the prior proceedings? These questions have been debated by courts in different states. See Hakkila v. Hakkila, 812 P.2d 1320 (N.M. Ct. App. 1991) (Donnelly, J., minority opinion); Barbara Glesner Fines, Joinder of Tort Claims in Divorce Actions, 12 J. Am. Acad. Matrimonial L. 285 (1994); Abrams et al., supra note 1, at 396 (surveying rulings on this question).


In the United States, there are additional procedural differences in the handling of tort claims and divorce proceedings, such as the presence of a jury (usually in tort claims, never in marital proceedings) and the method for calculating legal fees. See Chen v. Fisher, 843 N.E.2d 728 (N.Y. 2005); Christians v. Christians, 637 N.W.2d 377, 386-87 (S.D. 2001).


See Keeton, supra note 9, at 480-98.


McCurdy, supra note 32, at 1055.


Epstein, supra note 37, at 614 (‘Most obviously, close and intimate contact often gives rise to a strong interference of assumption of the risk for routine accidents, which in turn can be overcome only by showing intentional harms or conscious indifference‘).


Litigation, supra note 16, at 1655; Rheinstein, supra note 18, at 250-51.


Cf. Litigation, supra note 16, at 1655-57 (discussing the opposing argument that suggests that extrajudicial proceedings are no less appropriate in suits between strangers, and so spousal claims should not be blocked on the basis of their supposedly particular suitability to this avenue).


Edward J. Kionka, Torts in a Nutshell 406-07 (3rd ed., 1999).


This concern increased with the appearance of insurance coverage for traffic accidents. See Abbott v. Abbott, 67 Me. 304 (1877); Newton v. Weber, 196 N.Y.S. 113 (Sup. Ct. 1922); Klein v. Klein, 376 P.2d 70 (Cal. 1962); Homer H. Clark, Jr., The Law of Domestic Relations in the United States 641 (2d ed. 1988); Christie et al., supra note 32, at 541, 544-45; Keeton et al., supra note 9, at 902; Dobbs & Haydan, supra note 37, at 442-43; Litigation, supra note 16, at 1659-60 and references therein.


Epstein, supra note 37, at 614. See also Restatement (Second) Torts § 895F, cmt. d (1979).


Schubert v. August Schubert Wagon Co., 164 N.E. 42, 43 (N.Y. 1928).


Abbott, 67 Me. 304.


Epstein, supra note 37, at 614.


See, e.g., Allstate Insurance Co. v. Boles, 481 N.E.2d 1096 (Ind. 1985) (approving such conditions); Meyer v. State Farm Mutual Auto Insurance Co., 689 P.2d 585 (Colo. 1984) (rejecting such conditions).


See Brunner v. Hutchinson Division, Lear-Siegler, Inc., 770 F. Supp. 517 (D.S.D. 1991); Doxee v. Doxee, 80 P.3d 225 (Alaska 2003); Price v. Price, 732 S.W.2d 316 (Tex. 1987); Immer v. Risko, 267 A.2d 481 (N.J. 1970); Beaudette v. Frana, 173 N.W.2d 416 (Minn. 1969); Goller v. White, 122 N.W.2d 193 (Wis. 1963); Klein v. Klein, 376 P.2d 70 (Cal. 1962); Christie et al., supra note 32, at 548.


Price, 732 S.W.2d 316.


Norwest v. Presbyterian Intercommunity Hospital, 652 P.2d 318 (Or. 1982); Heino v. Harper, 759 P.2d 253 (Or. 1988).


See, e.g., Jennifer B. Wriggins, Interspousal Tort Immunity and Insurance ‘Family Member Exclusions‘: Shared Assumptions, Relational and Liberal Feminist Challenges, 17 Wis. Women’s L.J. 251 (2002).


See, e.g., McLoughlin v. O’Brian [1983] 1 A.C. 410 (H.L.).


Litigation, supra note 16, at 1652.


Neeley, supra note 11, at 700.


Relational contracts are contracts between parties that have a history of previous transactions and expectations for the future, as well as shared interests. Such parties do not take into account the immediate profit alone, but also the continuation of the relationship, mutual relations, reputation in the community, etc. Relational contracts are thus different from transactional contracts, which are generally made between strangers on a one-time basis. See Ian R. MacNeil, Contracts: Adjustment of Long-Term Economic Relations Under Classical, NeoClassical and Relational Contract Law, 72 Nw U. L. Rev. 854 (1978). Shahar Lifshitz imports the idea of relational contracts into spousal relations in the contractual context. He examines spousal contracts (including classical contracts such as pre-nuptial agreements, divorce agreements, and agreements to cohabitate, as well as agreements that establish the parties’ place of residence, division of duties in the home, procedures for dispute resolution, etc.) as relational contracts. See Shahar Lifshitz, Contracts Between Spouses, 4 Kiryat HaMishpat 271, 295-302 (2004-2005) (Heb.). His approach opposes recognition and legal enforcement of such contracts and calls on the legislature to enact a system of spousal contracts based on the understanding that this is in fact a special type of relational contract, and so the application of general contract law to these contracts is inappropriate. In his view, at times judicial rulings do manage to forge a new path, at least when one reads between the lines, and establish unique arrangements, but there is still concern that, in many instances, the courts will apply a literal reading of general contract law to such cases. Therefore, in his opinion, it would be appropriate for the legislature to regulate this area, particularly out of concern for differences in power between the parties, as a result of the ongoing relationship that is not always characteristic of contract law and the nature of the intimate relationship between the couple.


Litigation, supra note 16, at 1651.


Rhona Schuz, Child Protection in the Israeli Supreme Court: Tortious Parenting, Physical Punishment and Criminal Child Abuse, in The International Survey of Family Law 165, 176 (Andrew Bainham, ed., 2001).


Cf. Christie et al., supra note 32, at 545; Litigation, supra note 16, at 1661-62; McCurdy, supra note 32, at 1055.


Cf. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1120-21, 1124 (1972).


The question of whether the law can deter individuals or whether they act spontaneously, with no risk management and no calculations, is beyond the scope of this article. For more on this topic, see R.H. Coase, The Firm, The Market and the Law 1-5 (1988) (criticizing economists for failing to examine the causes that affect human behavior); Yaacov Schul & Ruth Mayo, Searching for Certainty in an Uncertain World: The Difficulty of Giving Up the Experiential for the Rational Mode of Thinking, 16 J. of Behav. Decision Making 93 (2003) (examining whether behavior can be directed, and when people are more calculating versus more experiential). Cf. Eldar Shafir & Amos Tversky, Thinking Through Uncertainty: Nonconsequential Reasoning and Choice, 24 Cognitive Psychol. 449 (1992). I want to thank Yuval Feldman for referring me to these sources.


Cf. Litigation, supra note 16, at 1659.


Robert A. Baruch Bush & Joseph P. Folger, The Promise Of Mediation: Responding To Conflict Through Empowerment And Recognition 236-59 (1994).










See, e.g., Herring’s critique and Woodhouse’s feminist critique, supra note 28.


Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L. J. 624, 629 (1980).


See Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 123 (1991); Michael J. Sandel, Liberalism and the Limits of Justice (1982).


See Jeremy Waldron, When Justice Replaces Affection: The Need for Rights, in Liberal Rights: Collected Papers 1981-1991, 370 (1993); Elizabeth Kiss, Alchemy or Fool’s Gold? Assessing Feminist Doubts About Rights, in Reconstructing Political Theory: Feminist Perspectives 1 (Mary Lyndon Shanley & Uma Narayan eds., 1997).


Cigdem Kagitcibasi, Family and Human Development Across Cultures: A View From the Other Side (1996).


Minow & Shanley, supra note 2.


In American law, there has been debate over whether litigation against an employer would entitle the defendant to immunity. The argument for immunity in this case of litigation against an employer for a spouse-employee who harmed his spouse is not convincing, because the justifications for immunity are relevant only to family members. See Keeton et al., supra note 9, at 910-11.


See Restatement (Second) of Torts, § 895G, cmt. d (1977); Ellman & Sugarman, supra note 37, at 1283.


Research indicates relatively greater success in mediation under court auspices in instances in which the referral to mediation came at the request of one of the parties or at the initiative of the judge, in comparison with instances in which the referral to mediation was random. Comprehensive empirical research on mediation under court auspices in the Ohio courts in various civil disputes (not specifically related to family cases) is described in Roselle L. Wissler, Court-Connected Mediation in General Civil Cases: What We Know from Empirical Research, 17 Ohio St. J. on Disp. Res. 641, 676-77 (2002).


Wissler notes that the courts in Ohio refer relatively few cases to mediation. Nevertheless, the judges themselves thought that mediation reduced judicial time and staff time. Id. at 670-71. Furthermore, 70% of the parties questioned testified that, following mediation, they better understood the other party. Id. at 664. Although only 32% of attorneys believed that mediation assisted in improving relations between the parties, in the opinion of 59% of attorneys, mediation led to greater involvement of the parties in case resolution. Id. at 665. Forty-nine percent of the parties testified that mediation assisted them in understanding the weaknesses of their own cases. Id. at 664. Similarly, 50% of attorneys felt that mediation helped them understand the strengths and weaknesses of their case. Id. at 665. Forty-eight percent of attorneys thought that mediation reduced the costs that the client had to pay and saved time for them and for their clients. Id. at 672. Thirty-six percent of the clients felt that mediation reduced costs, and 44% believed that it saved time. Id. at 673.


There are some claims in which monetary relief may be central to the case, such as inheritance disputes or disagreements over the division of property when the couple is separating. However, in the bulk of intrafamilial tort claims, there are other interests underlying the suit.


Holly Joyce, Mediation and Domestic Violence: Legislative Responses, 14 J. Am. Acad. Matrimonial L. 447, 447 (1997).


Sarah Krieger, The Dangers of Mediation in Domestic Violence Cases, 8 Cardozo Women’s L.J. 235, 243 (2002).


Joyce, supra note 114, at 456.


Krieger, supra note 115, at 241.


Kerry Loomis, Domestic Violence and Mediation: A Tragic Combination for Victims in California Court, 35 Cal. W. L. Rev. 355, 367 (1999).


Joyce, supra note 114, at 456.


Id. at 457.


Laurel Wheeler, Mandatory Family Mediation and Domestic Violence, 26 S. Ill. U. L. J. 559, 563 (2002).


There are those who recoil from the idea of mediation when there is clearly a power differential out of concern that, in the absence of attorneys, the stronger party would set the tone and even manipulate the mediator and obtain advantages that he would not obtain in legal proceedings. Bush and Folger deal with this problem in their work. Bush & Folger, supra note 98.


Wheeler, supra note 121, at 562.


See id. at 568.


See id. at 568-69.


Meacham v. Jamestown, F. & C. R. Co., 105 N.E. 653, 656 (N.Y. 1914).


Matthew Parrott, Note, Is Compulsory Court-Annexed Medical Malpractice Arbitration Constitutional? How the Debate Reflects a Trend Towards Compulsion in Alternative Dispute Resolution, 75 Fordham L. Rev. 2685, 2692 (2007).


The current law is Federal Arbitration Act, 9 U.S.C. § 1-16 (2000). See Parrott, supra note 127, at 2692-93 (discussing the implications of the law and explaining that the law allows federal enforcement of interstate commerce contracts that include an arbitration clause).


See Developments in the Law - The Paths of Civil Litigation, 113 Harv. L. Rev. 1752, 1855-57 (2002) [hereinafter The Paths of Civil Litigation] (explaining that the different types of ADR exist in the private sphere).


Holly A. Street-Schaefer, Note, A Look at Court Mandated Civil Mediation, 49 Drake L. Rev. 367, 369 (2001).


The Paths of Civil Litigation, supra note 129, at 1852.


Street-Schaefer, supra note 130, at 369.


The Paths of Civil Litigation, supra note 129, at 1853, n.9.


Parrott, supra note 127, at 2693 and references therein.


Id. at 2693-94 and references therein.


The Paths of Civil Litigation, supra note 129, at 1853.


Fed. R. Civ. P. 16. (The most recent amendment was in 2007.) See also Amy M. Pugh & Richard A. Bales, The Inherent Power of the Federal Courts to Compel Participation in Nonbinding Forms of Alternative Dispute Resolution, 42 Duq. L. Rev. 1, 3-7 (2003) (describing the changes undergone by the law up to the 1993 amendment).


Fed. R. Civ. P. 16(a) (emphasis added).


Parrott, supra note 127, at 2702.


28 U.S.C.S. § 471 (1990).


This law established that “[t]here shall be implemented by each United States district court, in accordance with this chapter [28 U.S.C.S. §§ 471 et seq.], a civil justice expense and delay reduction plan. The plan may be a plan developed by such district court or a model plan developed by the Judicial Conference of the United States. The purposes of each plan are to facilitate deliberate adjudication of civil cases on the merits, monitor discovery, improve litigation management, and ensure just, speedy, and inexpensive resolutions of civil disputes.” Id. (emphasis added). See also Parrott, supra note 127, at 2703; The Paths of Civil Litigation, supra note 129, at 1861 (describing that initially only ten federal courts set up ADR programs that required the litigants to participate. These programs applied only to claims that were for limited sums (sums between $50,000 and $150,000) and that did not involve questions of civil rights infringements or raise constitutional questions. These programs required good faith participation, but application could be made for trial de-novo.).


28 U.S.C. § 651-658 (1998).


Alternative Dispute Resolution Act of 1998, H.R. 3528, 105th Cong. § 2(1) (2nd Sess. 1998) (enacted).


Id., at § 2(2).


28 U.S.C. § 651(a) (1998).


28 U.S.C. §§ 651(a) & (b); 652(a), (b) & (c) (1998).


28 U.S.C. § 652(a) (1998), unless there is an obligation to use arbitration or consent to do so, pursuant to 28 U.S.C. § 654(d) (1998). See also Note, Mandatory Mediation and Summary Jury Trial: Guidelines for Ensuring Fair and Effective Process, 103 Harv. L. Rev. 1086, 1089-90 (1990) [hereinafter Mandatory Mediation] (discussing this authority).


28 U.S.C. § 652(d) (1998).


The Paths of Civil Litigation, supra note 129, at 1866-68.


Fla. Stat. § 44.102 (2009); Minn. Stat. § 484.74 (2008); Street-Schaefer, supra note 130, at 374-77 (comparing state ADR laws).


Street-Schaefer, supra note 130, at 378-82.


Id. at 378-80 (explaining that as the number of divorce cases in the United States rises, so too does the number of laws requiring mediation in custody disputes). Such mediation makes the experience of the dispute less traumatic for the children and allows the parents to cooperate and compromise. In addition, the courts are so overloaded that they do not have sufficient time to appropriately evaluate the arguments of the parties and reach a decision that ensures the children’s best interests. Mandatory mediation, on the other hand, allows the mediator to spend quality time with the family and limit the tensions created by adversarial litigation.


Id. at 380-81.


Id. at 381.


Id. at 382.


See Mandatory Mediation, supra note 147, at 1093.


Id. at 1093.


Id. at 1094.


See, e.g., id. at 1094.


Id. at 1091.


Joyce, supra note 114, at 457; Mandatory Mediation, supra note 147, at 1092.


Mandatory Mediation, supra note 147, at 1092.


Id. at 1094.


This phenomenon is especially pertinent in the context of family violence. See Wheeler, supra note 121, at 569-70 (arguing that the mediation process may be unsuitable in the context of family violence because no mediator can identify all the possible forms of violence and oppression between spouses, such as a certain gesture or word that arouses fear in the victim, and even the most proficient mediator cannot balance the power relationship between the parties in such a dispute); Rachael Field, Using the Feminist Critique of Mediation to Explore ‘The Good, The Bad and The Ugly‘: Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia, 20 Australian J. of Family L. 45 (2006) (presenting the feminist critique of mandatory mediation as related to divorce and the family and arguing that mandatory mediation as a first resort may cause injustice to women and children immediately after the couple’s separation, while conceding that mandatory mediation may have some advantages for women (i.e., “the Good”) in addition to its many shortcomings (i.e., “the Bad,” “the Ugly”); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545, 1610 (1991) (adopting a more radical view, and listing the dangers of mandatory mediation for women, particularly as related to divorce); Penelope Eileen Bryan, Women’s Freedom to Contract at Divorce: A Mask for Contextual Coercion, 47 Buffalo L. Rev. 1153 (1999) (arguing that mandatory mediation in divorce gives the man an additional opportunity to exert pressure on the wife, and explaining that the purported negotiation that takes place in the mediation framework is not a true negotiation, as the wife who is afraid of losing custody loses her ability to negotiate effectively); Loomis, supra note 118, at 355 (arguing that the imposition of mediation between spouses in instances of domestic violence implies that violence against women is acceptable, as long as it occurs within the boundaries of the spousal relationship).


See Dorothy J. Della Noce et. al., Assimilative, Autonomous, or Synergistic Visions: How Mediation Programs in Florida Address the Dilemma of Court Connection, 3 Pepp. Disp. Resol. L. J. 11, 20 (2002).


Mandatory Mediation, supra note 147, at 1096.


See id. at 1098 (“When mediators ... attempt to force parties to settle according to their recommendations, they undermine the consensual nature of these processes; such pressure causes parties to attempt to persuade the third party about the legal merits of their dispute instead of focusing on the various interests underlying each legal claim”).


See id. at 1099 (“[T]he various codes of ethics for mediators ... should expressly forbid not only settlement coercion but also more informal pressures.”).


For example, in certain mediation proceedings, the session is called a “hearing,” the disputes are called “cases,” and the parties are known as the “plaintiff” and “defendant.” See Mandatory Mediation, supra note 147, at 22.


Id. at 22.


Id. at 23-24 (presenting the autonomous approach to mediation under the auspices of the court in line with practice in Florida).


Id. at 24-25 (discussing an intermediate approach that was used in practice in Florida and solved some of those problems).


Caroline Harris Crowne, Note, The Alternative Dispute Resolution Act of 1998: Implementing a New Paradigm of Justice, 76 N.Y.U. L. Rev. 1768, 1795-98 (2001).


See Wissler, supra note 111, at 666-67. In instances of bodily harm and monetary injuries, mediation leads to a monetary remedy 84% of the time. However, 64% of contractual cases and a significant percentage of tort cases were resolved in mediation by non-monetary remedies.


See Williams, supra note 9; Dobbs, supra note 9; Keeton et al., supra note 9.


This point is particularly stressed by Williams, supra note 9, and Christie et al., supra note 32.


See Mandatory Mediation, supra note 147, at 1087, 1093 (dealing with the question of mandating participation in alternative dispute resolution under the auspices of the court).


Cf. Ellman & Sugarman, supra note 37, at 1277.


Mandatory Mediation, supra note 147, at 1086.


See id. at 1102-03 (“[M]andatory ADR should be limited to one or two days to promote efficiency and to prevent undue infringement on the trial rights of the parties. However, in exceptional circumstances, where neutral decisionmakers believe that settlement will only occur in a longer time-frame or where the complexity of the case requires more extensive proceedings, legislatures should allow neutral decisionmakers to extend the length of the proceedings to a week or more, subject to party agreement”).


See id. at 1103 (arguing that a categorical ADR regime--i.e., a regime whereby a statute mandates pretrial ADR for certain categories of cases--should also “include limited opt-out provisions, which allow parties to object to mediation or summary jury trial (SJT) when their cases warrant individualized consideration,” while noting that the “the opt-out should be limited by a judge’s ability both to deny a nonmeritorious opt-out request and to sanction parties deemed to have opted out without cause”).


Their suitability to other types of relationships requires a separate, extensive examination.


Israel, for example, has promulgated The Defamation Act, 5725-1965, 19 LSI 240, §§ 9(a)(2), 19(a) (1964-65) (Isr.).


See Hakkila v. Hakkila, 812 P.2d 1320, 1322 (N.M. Ct. App. 1991) (“[T]he abolition of immunity does not mean that the existence of the marriage must be ignored in determining the scope of liability.” This argument could also apply to relations between partners who are not necessarily married.). See also Abrams et al., supra note 1, at 369, 382-84 (explaining that in the United States, there is an effort to seek an appropriate balance from one case to another and from one tort to another, and explaining that “while opening the door to private remedies through tort law, courts and legislatures have suggested that conduct between family members should sometimes be judged by different and more forgiving standards”).


See, e.g., Heino v. Harper, 759 P.2d 253 (Or. 1988) (“Much is made of the fact that husband and wife live in a relationship so close and so intimate that it guarantees that there will be incidents of negligence by the spouses on a scale unparalleled in any other relationship of life.... Because of the nature of marital relationship, conduct that would be tortious as against a stranger might not be tortious as against one’s spouse; considerations similar to such doctrines as consent and privilege may render conduct between spouses nontortious”); Winn v. Gilroy, 681 P.2d 776 (Or. 1984).


See Beaudette v. Frana, 173 N.W.2d 416 (Minn. 1969) (noting that only excessively injurious contact or “gross abuse of a normal privilege” will justify recovery from spouse); Lusby v. Lusby, 390 A.2d 77 (Md. 1978) (rape); Davis v. Bostick, 580 P2d 544 (Or. 1978) (physical and emotional abuse); see also Keeton, supra note 9, at 909.


See, e.g., Plath v. Plath, 428 N.W.2d 392 (Minn. 1988).


See Litigation, supra note 16, at 1661-62. But see Merenoff v. Merenoff, 388 A.2d 951 (N.J. 1978); Keeton et al., supra note 9, at 909.


Cf. Lewis v. Lewis, 351 N.E.2d 256 (Mass. 1976); Beaudette, 173 N.W.2d 416 (stating extremely firmly that “intimate sharing... injurious contact [must be] plainly excessive or a gross abuse of a normal privilege.”). As I will explain below, even if there is logic to this point of view, it is too radical and should be moderated.


Karp, supra note 37, at 298. It is also doubtful whether the other conditions for establishing this defense exist here. According to the Restatement (Second) of Torts § 496A (1965), to invoke the doctrine of assumption of the risk, the plaintiff must understand and willingly expose himself to risk, in circumstances that indicate a willingness to accept such a risk (§ 496C); the plaintiff must be aware of the specific risk (§ 496D); the plaintiff must assess the probability of the risk of the type that occurred, unless for some reason he accepted the risk in any event (§ 496 A, B & D). The question of when behavior is reasonable in spousal relations, as opposed to relations between strangers, for the purpose of determining a breach of a duty of care is outside the scope of this essay, and it should be examined separately along with the bases of the other torts. See, e.g., Ellman & Sugarman, supra note 37, at 1302. All I propose here is that the examination must be adapted to the type of relationship.


Cf. Ellman & Sugarman, supra note 37, at 1277; Litigation, supra note 16, at 1653.


See Christie et al., supra note 32, at 545. As noted, in the United States there is a distinction between intentional torts and those based on recklessness and negligence. Thus there is a greater inclination to accept claims based on intentional torts. For example, as far as emotional and psychological injury is concerned, there is a tendency to accept claims based on intentional infliction of emotional distress, while in instances of negligent infliction of emotional distress, tort claims are limited only to behavior that is considered “outrageous.” See Neeley, supra note 11, at 704-705; Ellman & Sugarman, supra note 37, at 1274; Restatement (Second) of Torts, § 46 (1977). See also Ellman & Sugarman, supra note 37, at 1325 (discussing the meaning of the term “outrageous” and voicing a concern that the courts will set a standard of ideal family relations for the purposes of examining the tort claim).


An interesting example (although not so typical) of a judicial determination involving the de minimis defense in a family tort claim, in circumstances which would likely have led to a different outcome in a case between strangers, can be found in a dispute between a father and son (Misc.Civ.App. 132254/98, Family File (Tel Aviv) 110794/97, Doe v. Roe, Tak-Mish 99(2) 207 (1999) (Israel)). This interesting case involved an estranged father and son. The son and his fiancée sent wedding invitations that included the father’s name. According to the father, he was deeply hurt by this, and he sued his son, his son’s fiancée, and her parents for defamation. The case against the bride’s parents was rejected by all three courts that heard the claim (magistrate, district, and Supreme Court), and the case against the bride and groom was dismissed. The father then sued the couple alone for defamation and privacy infringement. As to the charge of defamation, the court ruled unequivocally that the mention of the father’s name in the wedding invitation by the son, not as the host but simply as a parent, did not constitute defamation or prohibited publication. In regard to the breach of privacy, the court found that even if the father’s name on the invitation constituted a breach of privacy, the son and daughter-in-law were entitled to the de minimis defense, since there was no doubt, in the view of the court, that the injury was negligible. The court also took into account the son’s argument that inclusion of the father’s name was an attempt at reconciliation with the father. It remains to be seen whether the use of a person’s name in this way--an implication that the person was inviting others to an event for which he was not the host--would be seen as an infringement of privacy and/or defamation in other contexts, such as commercial relations.


For arguments against punitive damages, see Jamie Cassels, Remedies: The Law of Damages 258 (2000); Allan Beever, The Structure of Aggravated and Exemplary Damages, 33 Oxford J. Legal Stud. 87 (2003); Cassell & Co. Ltd v. Broome, [1972] A.C. 1027. For arguments in favor, see Conway v. INTO, [1991] 2 I.R. 305; BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). For justification of punitive damages from the direction of effective deterrence, see A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869 (1998); David F. Partlett, Punitive Damages: Legal Hot Zones, 56 La. L. Rev. 781 (1996). The standard articulated by the Restatement (Second) of Torts §908 (1965) is “reckless indifference to the rights of others.” In State Farm v. Campbell, 538 U.S. 408 (2003), the Supreme Court made it clear that the purpose of punitive damages is deterrence more from the point of view of retribution than from the point of view of punishment. In State Farm, the Supreme Court remanded a case in which the jurors had awarded the sum of $145 million and asked the lower court to award more reasonable damages consistent with constitutional principles. The Court created guidelines under which punitive damages should not be awarded specifically on the basis of the defendant’s economic ability, but rather the level of reprehensibility to be attributed to the act in comparison with other reprehensible acts. See id. at 604. Such punitive damages are to be awarded, in the view of the Court, when the guilt is “so reprehensible as to warrant the imposition of further sanctions.” Id. at 602. However, there are some problems with this transition to the rationale of retribution. Retribution should be act-dependent, rather than outcome-dependent, unlike the usual structure of tort law, which, apart from instances of compensation without proof of harm, imposes liability only if harm has been caused, and not as retribution for the tortious act if it does not indicate a complete tort. Even when the harm has occurred, there is not always a relationship between the seriousness of the act and the extent of the harm. This requires a more extensive discussion than is appropriate here.


Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, 1208 (Can.); Kuddus v. Chief Constable of Leicestershire Constabulary [2001] UKHL 29, [2002] 2 A.C. 122 (U.K.); BMW of N. Am., Inc., 517 U.S. 559.


Khodaparast v. Shad, [2000] 1 W.L.R 618 (U.K.); Vorvis v. Insurance Corp. of British Columbia [1989] 1 S.C.R. 1085 (Can.).


See, e.g., Curtis v. Firth, 850 P.2d 749 (Idaho 1993) (as a remedy for physical and emotional abuse of a life partner); Cater v. Cater, 846 S.W.2d 173 (Ark. 1993) (as a remedy for severe battery of the wife).


Some courts have awarded punitive damages even in cases of negligence. See Lamb v. Cotogno (1987) 74 A.L.R. 188 (Austl.); A. v. Bottrill [2002] UKPC 44 (New Zealand); Coughlin v. Kuntz (1989) 42 B.C.L.R. (2d) 108; Philip H. Osborne, The Law of Torts 104 (2000); Francis Trindade, Peter Cane, The Law of Torts in Australia 530 (3rd ed. 2001); Andrew Phang & Pey-Woan Lee, Exemplary Damages - Two Commonwealth Cases, 62 Camb. L.J. 32 (2003).


Regarding contractual claims, see Christie et al., supra note 32, at 544-45; Litigation, supra note 16, passim. Regarding property claims, see Litigation, supra note 16, at 1654.


Dobbs, supra note 9, at 21.

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