Is ‘conversion therapy’ tortious?

So-called ‘conversion therapy’ involves therapeutic attempts to change an individual's sexual orientation or gender identity. It is widely considered to be harmful to sexual minorities and there have been calls for it to be banned in the UK. In this paper, we examine whether victims of the practice could bring tort claims against ‘therapists’ for mental harm. Focusing on talking therapies, we assess tort doctrine in the law of negligence, the rule in Wilkinson v Downton, the Protection from Harassment Act 1997 and deceit. We conclude that while some forms of conversion therapy will be tortious, others will not and so this area of law may fail to assist many victims of the practice.

26. Remedies

This chapter examines the basic principles of remedies for tort claims. The judicial remedies include damages and injunctions. This chapter discusses principles concerning the award of the different types of damages, which include nominal damages (for rights infringements resulting in no tangible loss), aggravated damages (for affronts to the claimant’s dignity), exemplary damages (which are designed to punish and deter future wrongdoing), and contemptuous damages. Special reference is made to the application of the principles in cases of death and personal injury, the former topic encompassing discussion of the survival of actions principle and of the Fatal Accidents Act 1976.

Should California’s Film Script Cases Be Merged into Trade Secret Law?

In legal disputes where one party claims that it submitted an idea to another party and alleges that the latter used that idea without permission or compensation, two categories of California intellectual property law have increasingly come to resemble one another: (1) trade secret law, most often applied in business or technical contexts; and (2) idea submission law, primarily applied in cases involving film scripts and other media productions. Over the decades, these regimes have developed separately, within distinct business and legal cultures. But recent developments in California trade secret law have brought the two closer together; in some areas, they may even be approaching a unified body of law. This Article explores that possibility. It concludes that although a partial merger is inevitable, the two core causes of action—for asserted trade secrets, a misappropriation claim; for idea submissions, a so-called Desny claim for breach of implied-in-fact contract—will and should remain distinct. A partial merger, however, would lead to beneficial exchanges in areas where their doctrines already overlap: (1) idea submission’s “independent development” and trade secret’s “independent derivation” defenses; and (2) statutory preemption under California’s Uniform Trade Secrets Act (CUTSA). California’s idea submission cases have developed sophisticated and robust means to adjudicate the concept of “independent development”—that is, a defendant’s assertion that despite receiving the plaintiff’s idea, it nonetheless came up with the disputed film, television show, or other concept on its own. By contrast, the important and analogous defense of “independent derivation” in California trade secret law remains underdeveloped. This Article argues that the idea submission cases offer a far more rigorous analysis of the defense and could inform similar decisions under trade secret law. In particular, it proposes a methodology that courts can use to adjudicate the independent derivation defense, inspired by the idea submission cases. The idea submission cases largely survived copyright preemption challenges in the 1990s and 2000s after Ninth Circuit rulings preserved the viability of some idea submission causes of action under state law. But surviving copyright preemption is not the same thing as surviving CUTSA trade secret preemption. This more recent form of IP preemption is broad, and it subsumes tort claims seeking to protect information said to be confidential. This Article argues that the CUTSA preempts peripheral idea submission tort claims such as breach of confidence, but it does not preempt the core claim at the heart of California’s idea submission regime—the Desny claim for breach of implied-in-fact contract. The proposed partial merger recognizes the public policy ends of each regime: protecting weaker parties who submit ideas to film and media studios (in narrowlydefined circumstances), and ensuring that litigants cannot use tort claims to subvert the protections the CUTSA and related employee mobility rules provide for the free use of publicly available information that does not meet the statutory definition of a trade secret.

Defending Government Tort Litigation: Considerations for Scholars

I am honored by the invitation to participate in this symposium on “What Practitioners Can Teach Academics About Tort Litigation” and to share my views from the defense side of government tort litigation. I have a foot in each camp of the practitioner/academic divide. For three decades I defended the federal government in Federal Tort Claims Act (FTCA) litigation, serving for the last 15 of those years as Deputy Director of the FTCA Staff in the Civil Division of the U.S. Department of Justice. I worked with the FTCA and its jurisprudence on a daily basis—litigating cases, assessing and negotiating proposed settlements, advising agencies and Assistant U.S. Attorneys, and commenting on proposed legislation. I left Justice in 2006 to become an academic, a role in which I have had the pleasure of teaching Torts to first year law students and the time and freedom to write about sovereign immunity, the FTCA, and other things.

Meandering Jurisprudence and Unanticipated Legacies

Assessments of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) jurisprudential legacy tend to focus on the ICTY’s relationships with domestic criminal law. This chapter turns a new corner by examining the ICTY’s unexpected footprints in domestic civil litigation, specifically private tort claims brought in the US under the Alien Tort Statute (ATS, or Alien Tort Claims Act). Incorporation of international (including ICTY) materials in US ATS litigation remains a contested matter in which individual judges (both trial judges and appellate judges) demonstrate idiosyncratic behaviour. Some are ‘international law ignorers’, some are ‘international law enforcers’, some are ‘international law translators’, and some are ‘international law creators’. On this note, the ICTY’s legacy also touches upon broader questions of public international law and transnational legal migrations.

General Guidelines for the Conversion of Damages Calculated in Foreign Currency: Tort Claims

This paper contributes to the debate about determining the proper procedures for the conversion of damages calculated in foreign currency into U.S. dollars by offering general guidelines applicable to tort claims. The analysis expands beyond the typical discussion of selecting the appropriate conversion date by examining other relevant economic factors such as exchange rate risk allocation, the application of an adequate interest rate for the calculation of pre- and post-judgment interest, and the implications of the currency in which the plaintiff suffers the loss. While aiming at properly and fairly compensating the plaintiff as the essential goal of the law on damages, the general guidelines for damages conversion presented rely more on economic principles than on legal arguments.

1. Introduction

This introductory chapter first reviews the current state of the law of tort. It discusses the increase in tort claims due to our greater ability to cause more and greater harm and our reduced willingness to put up with the normal vicissitudes of life. It considers the law of individual responsibility. It suggests that tort law is becoming by the day a more complex set of rules than it ever was, where national law mixes with legal ideas emanating from foreign jurisdictions. Tort law rules are also becoming intermingled with those from other branches of English law. The second part of the chapter discusses the relationship between tort and contract.