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This chapter considers the wider implications of the infusion of mythologized femininity for the law, in particular for the position of plaintiffs. It suggests that the feminizing process imported a contradiction to the centre of the action and lodged an inconsistency at the very heart of the plaintiff. By virtue of her position as litigant – come to a public court of law to take legal action about and obtain pecuniary damages for a romantic grievance – a woman bringing a breach-of-promise suit put herself in direct opposition to the central tenets of the very femininity the Victorians valorized, and in accordance with which the ninteenth-century cause of action was shaped. As both a legal codification of true womanhood and a platform for not so very true women, the nineteenth-century breach-of-promise action may thus be seen as beset from its inception by a fatal structural inconsistency.

This chapter explores the legal lives of working families in the 17th century. It uses marital litigation as a case study to interrogate the practical impact of institutional complexity by exploring how people dealt with similar problems in different jurisdictions, and examines similarities and differences in men and women's options, experiences, and uses of the courts. It demonstrates how litigation was indisputably a popular phenomenon in two key senses: not only did enormous and increasing numbers of people experience court proceedings whether as plaintiffs, defendants, or witnesses, but participants in litigation in courts of first instance were all far more likely to be from the ranks of working families broadly defined than from elites. Their practice with legal process provided a key resource for early modern urban families to use in managing many aspects of their lives. Going to court was an accessible and indispensable element of family business.

This chapter explores working people's legal lives as key participants in the grassroots forums that is termed in this book litigation communities, in which many kinds of challenges were negotiated. If we expand our thinking about litigation, past plaintiffs' complaints, and judges' sentences, to focus on unpacking a legal process in which many purposes and parties were involved, we find a commonplace, effective interstitial forum in which an unusually broad range of voices could make themselves heard. The judicial system promised a potential means through which an early modern government could hope to exert some authority over its subjects, whether in promoting particular values or in managing strife; but the practice of litigation offered the prospect of participation for a wide range of people in negotiating the parameters of a wide range of issues, whether as litigants, defendants, witnesses, or observers.

This chapter discusses how psychometric testing can aid clinicians and forensic experts in understanding a patient/examinee. In addition, the chapter discusses how psychometric test results suggestive for malingering may look based on the malingerer’s situation (e.g. criminal or civil context), motivation (faking good or faking bad), and sophistication (e.g., coached). Other factors that may also result in symptom elevation scores (e.g., stress of a lawsuit, response bias, unconscious factors), which may not be due to a clear intention to malinger, are also discussed. The chapter concludes with a discussion of the ethical obligations inherent with the use of these tests (e.g., test integrity, informing about validity scales, sharing of results).

If the vadimonium (bail) documents are records of judicial vadimonia, they would serve as evidence that the parties in a lawsuit performed as they were ordered to perform. Both the plaintiff and the defendant had an interest in possessing evidence that they acted as they were ordered to act; both parties have an interest in ensuring that the contents of the document reflect the magistrate's order and the requirements of the law. The documents were records of compulsory, judicial vadimonia. When a plaintiff stipulated to the defendant for the payment of a penalty, he was not free to set any amount he wished. The edict contained rules on how high the penalty could be. This chapter explains how cases in Rome during the classical period were postponed.

Examining court hearings revealed that initiated men were not the only ones who dropped hints and spread rumors, but that almost everyone in the community preferred to avoid open confrontation and criticism and to cast their complaints about their neighbors and kin in veiled, ambiguous language. In this way, people could mobilize public opinion against those they did not like, or could try to get people to behave better. Court hearings frequently failed when plaintiffs could only offer rumor and veiled remarks as proof of their charges, and witnesses either denied the statements attributed to them or said their words had been misconstrued. Thus, in court hearings and in everyday life, as in inquests, people tried to influence others by dropping hints, spreading rumors, and making public strong recommendations that they later refused to act on.

This chapter discusses the problem of discovery costs and the cost allocation model and control of excessive discovery. It discusses the proposal of allocating all discovery costs to the plaintiff. As the party who both initiates the discovery and benefits most as a result of it, the plaintiff should bear the costs on fundamental principles of quasi-contract or quantum meruit.

As a matter of theory, liability rules might be more efficient than property rules even when bargaining is possible. But there are reasons to be skeptical of the result. This chapter describes the results of experiments conducted in seven different classes at five law schools. The students were divided into pairs of bargainers and assigned to play the roles of a drive-in owner and a racetrack owner in a dispute inspired by a real case. The dispute concerned the external effect of a racetrack on a neighboring drive-in theater. In the bargaining game, the only issue for negotiation was whether the racetrack would operate at night. The track could increase its profits by operating at night, but doing so would decrease the profits of the adjacent drive-in (because the lights diminish the clarity of the picture). The disputants had private information about their valuations. The results show that liability rules evince a strong information-forcing effect, with high-value plaintiffs trying to bribe and low-value plaintiffs trying to sell. More important, liability rules produce slightly higher allocative efficiency.

While the plaintiff has a legally recognized interest, this does not mean that interference with it will be actionable in tort. All means of legal interests are protected. This chapter discusses competing interests that challenge the plaintiff's interests. In these cases, the defendant is able to point to some competing interests which outweigh the interests of the plaintiff and justify the law of tort in refusing to come to the aid of the plaintiff. These competing interests consist of two broad categories: individual interests and public interests. In the case of competing interests, the burden of establishing that there are not negativiting factors rests on the plaintiff, while the onus of establishing nullifying factors rests on the defendant.

Beyond put options there are a dizzying array of “Pay or Be Paid” and “Pay or Pay” rules. But our understanding of liability rules is simultaneously simplified since it is shown that this double infinity of rules gives rise to just two potential allocations: plaintiff-choice allocations (which delegate allocative authority solely to the plaintiff) and defendant-choice allocations (which delegate allocative authority solely to the defendant). This chapter shows that there are two further foundational ways for courts to use liability rules to delegate allocative authority. These are “dual-chooser” rules in contradistinction to the single-chooser rules, because both the plaintiff and the defendant have a potential impact on how the entitlement is ultimately allocated. One class of allocation rules, known as “plaintiff-presumption” dual-chooser rules, presumptively allocates the entitlement to the plaintiff unless both parties opt to shift it (for a court-determined price) to the defendant. The other class of allocations are the “defendant-presumption” dual-chooser rules, which concern rules that presumptively allocate the legal entitlement to the defendant unless both parties opt to shift it to the plaintiff.

This chapter focuses on the so-called exclusionary rule and the basis for excluding liability for economic loss in tort law. It examines five different situations into which economic loss cases can be divided. The first ‘exclusionary’ situation is typified by circumstances where the defendant damages something in which the plaintiff may have a contractual interest (or something else that is less than a possessory or proprietary right) and this impairs the plaintiff’s interest, causing him financial loss. The two other ‘non-exclusionary’ situations are where the plaintiff’s financial loss arises through a special relationship of justified detrimental reliance by the plaintiff on the defendant, and where it results from the defendant’s intentional interference with the plaintiff’s contract with a third party.

This chapter examines conceptual and normative issues concerning contributory negligence and places them within the broader conceptual, doctrinal, and normative framework of tort law. It assesses the extent to which the parties’ moral claims ground their legal rights and remedies, without careful regard to practical and institutional constraints. However, some of the analysis might suggest reasons for altering or refining current legal doctrine. For simplicity, the chapter uses the term ‘contributory negligence’ as a shorthand for either traditional contributory negligence, which was a complete bar to recovery, or modern comparative negligence, where the plaintiff’s negligence reduces but need not bar recovery. The concept of injurer fault does entail that the injurer should have acted otherwise, since injurer fault means conduct that is deficient relative to a standard of reasonable care.

This chapter examines the practice of awarding and evaluating damages and costs in the judicial system in England during the Tudor period. The assessment of damages was seen as an exercise in establishing facts rather than applying law because examining the plaintiff who did the damage was seen as an exercise in establishing facts rather than applying law. The costs were regarded as part of the damages, and the plaintiff could ask for the damages and costs to be awarded jointly if he so wished. However, in practice, nearly all verdicts dealt with the costs separately.

This chapter reviews the objectives of tort law, including deterrence, allocation of the costs of injuries, corrective justice, and civil recourse. It describes how these aims implicate the psychology of decision making in tort. In seeking to accomplish its objectives, the law of torts is inevitably concerned with how legal rules influence behavior, how the psychology of decision makers interacts with the legal rules, and how jurors and judges evaluate and respond to the behavior of both plaintiffs and defendants.

This chapter presents a summary of psychological issues underlying claims for and awards of money damages. It takes a psychological perspective on plaintiffs who are seeking damages, assessing the symbolic significance of money damages and the ability of money damages to redress the imbalance between the liable defendant and the injured plaintiff. It also analyzes the psychology of fact finding, drawing on psychological research to show how judges and juries determine appropriate compensatory and punitive damage amounts.

In the conclusion, I discuss the implications of privacy’s gendered history – did this doctrine reinforce traditional ideals of femininity or did it assist in women’s struggle for equal citizenship? Did the legal community initially frame the question of whether individuals should have rights to their images as one of ‘privacy’ because women brought the majority of the claims? Would it have been framed differently, such as an issue of property rights, if men brought cases in equal or greater numbers? The concluding chapter also comments upon the ways in which this history relates to and informs contemporary debates about the circulation and publication of naked or sexually explicit images of women on the Internet. I argue that current attempts by women and their advocates to address the phenomenon of revenge pornography or nonconsensual pornography echo the earlier struggles for image rights and the recognition of a right to privacy that began in the first years of the 20^th century. I also reflect upon the importance of emphasising the experiences of plaintiffs as well as the outcomes of cases in legal history; and the benefits of interdisciplinary scholarship at the intersections of law, film studies and women’s history.