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The Article systematically looks at domestic violence as a torts issue and also critiques how tort theory prioritizes accidents over intentional torts. After showing how domestic violence fits within the categories of intentional torts including battery, assault, false imprisonment and intentional infliction of emotional distress, the article highlights the disjunction between the prevalence of domestic violence and the virtual absence of tort suits seeking compensation for domestic violence injuries. The article analyzes the reasons for that absence and finds a range of explanations. Some of the explanations are practical, such as the ‘intentional acts exclusion’ in liability insurance and short statutes of limitations for intentional torts, which together with other factors guarantee that there will be little litigation in this area. This in turn means that the torts system is not serving deterrence or compensation functions and is leaving domestic violence unaddressed. More broadly, the torts system considers intentional torts more serious than negligence, but promotes compensation for negligence rather than intentional torts. The article calls for creative responses to the problem of domestic violence torts, and proposes a revised approach to auto insurance which would include a required minimum coverage for domestic violence torts, spreading the costs rather than letting them fall solely on the victims. Finally, the article critiques the accident-centered focus of twentieth-century tort law, calling for a focus that includes a broader range of harms.

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Southern California Law Review



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