Monday, June 18, 2018
After having been struck down by the Arkansas Supreme Court right before it was scheduled for a vote, tort reform is back on the ballot this November:
The proposed constitutional amendment would set caps on attorneys' fees and certain lawsuit damages, plus -- in what lawyers say is the biggest affront to their business -- give lawmakers the final rule-making authority over the courts. Its backers in business and the Legislature pitch the amendment as tort reform that they say will reduce the costs of doing business in Arkansas by making companies less exposed to frivolous or costly litigation.
The bar generally opposes the measure, and business groups favor it. The Northwest Arkansas Democrat Gazette has a story from the Arkansas Bar Association convention.
Thursday, June 14, 2018
John Goldberg has posted to SSRN Benjamin Cardozo and the Death of the Common Law. The abstract provides:
Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.
Tuesday, June 12, 2018
The Reporters for R3: Torts: Intentional Torts to Persons, Ken Simons & Jonathan Cardi, respond to critiques from prominent torts scholars in a symposium published in the Journal of Tort Law. Entitled Restating the Intentional Torts to Persons: Seeing the Forest and the Trees, the abstract provides:
The five thoughtful, incisive articles by Professors Bernstein, Chamallas, Geistfeld, Moore, and Sugarman offer a breathtaking range of perspectives on the Restatement, Third of Torts: Intentional Torts to Persons (“ITR”). Some view tort law from the widest vantage point, inquiring whether this forest deserves its own appellation or should instead be assimilated to the rest of tort’s greenery. Some focus more on the trees–on the distinct doctrines that characterize the torts and defenses that ITR is restating. In this response, we engage with the participants at both levels.
Our response also addresses two fundamental questions–the role of a Restatement and the significance of the “intentional tort” category. First, ITR is a Restatement of tort law. It is not a model code of tort law, nor is it an academic article committed to a particular vision of the proper purposes and principles of tort law. We see our task, not as creating a grand theory from which all of intentional tort doctrine can be deduced, but as a bottom-up endeavor, accurately characterizing developments in the case law and then providing the most sensible and persuasive justifications for extant doctrine. At the same time, however, we strive to provide intellectual coherence to this body of law. Thus, we examine not only the holdings in narrow doctrinal categories, but also the consistency of those holdings with more general tort law principles.
Second, what is distinctive about the intentional torts to persons? How do they differ from torts of negligence or from other intentional torts? These questions have no simple answer, because most of the intentional torts to persons have very long historical roots, and because the common law process of reformulating doctrine has played a vital role in defining the scope of these torts in current American law. It is thus not at all surprising to find tensions and apparent inconsistencies between some current doctrines.
Nevertheless, we believe that the contemporary formulations of these torts are indeed justifiable in principle. First, these intentional torts sometimes reflect a hierarchy of fault or culpability. Purposely injuring someone is more culpable, ceteris paribus, than negligently causing the same injury. Second, these torts sometimes protect distinct interests, such as the interest in avoiding emotional harm or in freedom of movement, that for various policy reasons are not protected by liability rules if they are only negligently invaded. Third, the intentional torts do not simply identify species of conduct that reflect greater fault or culpability than negligence. Comparing intentional torts is sometimes akin to comparing apples and oranges, because these torts protect a varied set of interests or protect them in varying ways. Fourth, the intentional torts express a pluralistic set of values and principles. No single principle (such as welfare, autonomy, or freedom) fully explains all of these torts. And fifth, although these intentional torts contain some reasonableness criteria, for the most part they reject the reasonableness paradigm of negligence, and thus reject the more flexible, less structured criteria of liability that that paradigm engenders.
Friday, June 8, 2018
F. Patrick Hubbard & Evan Sobocinski have posted to SSRN Crashworthiness: The Collision of Sellers' Responsibility For Product Safety with Comparative Fault. The abstract provides:
Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals like efficient reduction of accident costs or (2) “persons” entitled to fair treatment in the same way as humans.
Relying on an analysis of doctrine, history, and policy, this Article argues (1) that for-profit corporations are tools, not persons with moral rights, and (2) because these corporations are not “moral persons”, the concern for efficient reduction of accident costs by internalizing the cost of injuries from product defects to corporations should prevail over a concern for “fairness” to these corporations in allocating accident costs. Therefore, because reducing manufacturers’ liability for crashworthiness also reduces the efficient internalization to manufacturers of the cost of their failure to provide cost-effective safety, the plaintiff’s role in causing the initial accident should be irrelevant to plaintiff’s claim for defective crashworthiness. This concern for internalization also supports the expansion of plaintiff’s rights in other areas of liability for defective vehicle design.
Wednesday, June 6, 2018
In California, the "tort wars" have been quiet recently. That may change due to wildfires and a court decision finding lead paint manufacturers liable for a public nuisance. The state's utilities, potentially on the hook for billions of dollars in damage caused by wildfires, and lead paint manufacturers have sought legislation to protect themselves from damages. The Mercury News has details.
Monday, June 4, 2018
John Goldberg has posted to SSRN The Fiduciary Duty of Care. The abstract provides:
Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, I argue, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.
Friday, June 1, 2018
Ronen Perry has posted to SSRN Tort Law. The abstract provides:
This book chapter systematically analyzes the fundamental principles of Israeli tort law. Given space limits it focuses on core areas, and does not profess to be comprehensive. Part II discusses fault based liability—intentional torts, negligence, and presumptions of negligence. Part III examines strict liability, including the special regimes pertaining to road accidents, defective products, and defamation, and the general tort of breach of statutory duty. Part IV discusses general defenses—particularly those deriving from the plaintiff’s fault or consent, and the special defenses afforded to the state, public authorities, and civil servants. Part V explains how the bilateral wrongdoer-victim model has been extended by allowing claims against or by third parties. Part VI examines the available remedies.
Thursday, May 31, 2018
The Michigan Court of Appeals recently upheld the high standard necessary to overcome the workers' compensation bar to suing an employer in tort. As in other jurisdictions, Michigan makes it difficult for an injured employee to sue his or her employer in tort. A common exception is for intentional torts. Michigan requires the employee demonstrate he or she was injured "as the result of a deliberate act of the employer and the employer specifically intended the injury." In a decision announced last month, Shumaker v. Meritt Tool & Dye, an employee was working with a large press used to cut steel. The employee lost three fingers when the machine unexpectedly double-cycled. The employer had received safety citations a few years prior relevant to the press:
Ultimately, the Court of Appeals held that (1) despite the employer having actual knowledge that the machine could double-cycle, the plaintiff failed to show there was a genuine issue of material fact about whether an injury was "certain to occur" as is required by MCL 418.131; and (2) even if the plaintiff had established that the defendant had actual knowledge that the injury was certain to occur, the plaintiff showed no evidence that the employer "willfully disregarded" such knowledge.
Lexology has the story.
Wednesday, May 30, 2018
There is an obvious connection between tort law and workers' compensation. Both provide compensation to the injured, but they are based on different philosophical underpinnings. Mike Duff leads a team of editors at Workers' Compensation Law Blog, an active and very thorough blog. Check it out here.
Tuesday, May 29, 2018
John Goldberg & Ben Zipursky have posted to SSRN From Riggs v. Palmer to Shelley v. Kraemer: The Continuing Significance of the Law-Equity Distinction. The abstract provides:
This chapter begins with a sharp distinction between two kinds of judicial authority — the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.
Wednesday, May 23, 2018
The ALI's 95th Annual Meeting concludes today, but the torts and torts-related projects are finished. Two of the projects are truly complete. The membership approved a Proposed Final Draft of the Economic Harm project (Ward Farnsworth, Reporter) and the Law of Liability Insurance project (Tom Baker and Kyle Logue, Reporters). Several additional sections of the Intentional Torts project (Ken Simons and Jonathan Cardi, Reporters) were also approved.
Tuesday, May 22, 2018
Pennsylvania, facing a large budget deficit, attempted to take $200M from a state-created joint underwriting association for medical malpractice insurance. The state passed a law requiring the JUA to give up $200M of its $268M surplus by December 1, 2017 or be dissolved. Judge Christopher Conner of the Middle District of Pennsylvania issued a preliminary injunction to halt the dissolution. Stating the money was private property, Judge Conner has held that the transfer is a seizure of property without compensation and is unconstitutional.
Tuesday, May 15, 2018
Friday, May 11, 2018
Jill Wieber Lens has published "Recognizing Stillborn Babies Does Not Threaten Abortion Rights" at HuffPost. Here's a sample:
Abortion rights groups rationally ― and rightly ― fight against abortion limits, including bans on abortions after however many weeks of pregnancy and mandatory ultrasounds. But the fight against recognition of stillbirth feels a bit irrational. The Supreme Court in Roe v. Wade specifically recognized that a tort claim for parents after the death of an unborn child does not give the unborn baby any rights. It is the parents’ claim, not the unborn baby’s claim.
Thursday, May 10, 2018
Ohio recognizes an independent tort of intentional, but not negligent, spoliation of evidence. The Supreme Court has further restricted the tort:
In Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783, the Supreme Court narrowed the scope of intentional spoliation claims by adding the requirement of actual proof of destruction or alteration of evidence. Further, the Supreme Court held that claims for intentional concealment of, or intentional interference with, evidence are excluded from intentional spoliation claims.
JDSupra has details.
Wednesday, May 9, 2018
A mother and son who together experienced a failed liver transplant argued to the Pennsylvania Supreme Court on Monday that the seven-year med mal statute of repose should be struck down as violating the state constitution's "open courts" provision. The statute of repose was one of many provisions included in the MCARE statute, passed in 2003 to deal with an alleged med mal crisis in Pennsylvania. Law 360 has the story.
Tuesday, May 8, 2018
Mark Geistfeld has posted to SSRN Cost-Benefit Analysis Outside of Welfarism. The abstract provides:
Welfarism is the principle that the goodness of a social state is an increasing function of individual welfare and does not depend on anything else. As Gregory Keating convincingly argues in the lead article for this symposium, welfarism cannot account for important normative differences among different types of welfare losses or costs. Welfarism entails that all welfare losses and gains — regardless of their source — are to be rendered fungible and then compared within a cost-benefit analysis (CBA) of the welfare changes. According to Keating, liberal egalitarian principles such as equal freedom or self-determination normatively distinguish bodily injuries from harms to liberty and economic interests. Bodily integrity and related forms of security are necessary conditions for the meaningful exercise of liberty, and that normative difference must be fairly accounted for by legal standards that govern significant risks threatening human health and safety. Hence Keating concludes that liberal egalitarian principles rule out CBA for setting such safety standards.
Despite its apparent logic, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of fairness is mistaken. Tort law shows why a legal system that protects the individual right to physical security can be usefully guided by the methodology of CBA and distributive economic analysis more generally. The governing principle of substantive equality determines the appropriate use of CBA, thereby framing the issues that can be usefully addressed by distributive economic analysis. Welfare does not have to be the master value in order to be relevant. As fully illustrated by the normative framework that Keating otherwise persuasively defends, CBA has an integral role outside of welfarism.
Monday, May 7, 2018
Mark Geistfeld has posted to SSRN The Regulatory Sweet Spot for Autonomous Vehicles. The abstract provides:
Although federal legislation governing highly automated vehicle (“HAV”) technology has yet to be enacted, developments so far strongly indicate that Congress will finally settle upon a framework that establishes the same roles for federal regulatory law and state tort law that now exist for conventional motor vehicles. Like the HAV bills pending in Congress, the National Traffic and Motor Vehicle Safety Act of 1966 contains both an express preemption provision along with a saving clause, which says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” These two provisions of the 1966 Act were harmonized by the U.S. Supreme Court in Geier v. American Honda Motor Company, which held that the saving clause embodies a legislative purpose to retain a meaningful role for tort law that can be displaced by federal regulations only as a matter of implied preemption. Because the pending federal HAV bills establish the same roles for federal regulatory law and state tort law that exist under the 1966 Act, the Court’s interpretation of that Act in Geier should extend to the HAV legislation.
As fully illustrated by the safety issue involving the reasonably safe performance of fully functioning autonomous vehicles, federal regulators meaningfully preserve state tort law when they base a federal safety regulation on the associated tort requirement enforced by the majority of states. By complying with this type of regulation, manufacturers would fully satisfy the associated tort obligations in these states, making regulatory compliance a complete defense. In the remaining minority of states, regulatory compliance would foreclose tort liability as a matter of implied preemption. This framework would uniformly regulate HAV technology across the national market while maximally preserving state tort law, thereby hitting the regulatory “sweet spot” that optimally solves the federalism problem.
Thursday, May 3, 2018
Recent Publications of the Institute for European Tort Law and the European Centre of Tort and Insurance Law
Wednesday, May 2, 2018
Chris Reinders Folmer, Pieter Desmet, and Willem H. Van Bloom have posted to SSRN Is it Really Not About the Money? Victim Needs Following Personal Injury and Property Loss and Their Relative Restoration Through Monetary Compensation and Apology. The abstract provides:
Tort law currently debates the value of facilitating apology, particularly in the domain of personal injury litigation, where victims’ immaterial needs are claimed to be neglected by monetary remedies. However, insight on its remedial value is limited, as extant evidence does not yet illuminate 1) which immaterial needs victims experience in tort situations, 2) how prominent these needs are relative to their material needs, 3) how monetary remedies may redress either need, 4) how apologies contribute beyond this, and 5) how this may impact case resolution (i.e., settlement decisions). We present two experimental studies that illuminate these questions by demonstrating that 1) tort victims experience several distinctive immaterial needs (for interpersonal treatment, responsibility taking, punishment, and closure); 2) these needs are relatively less prominent than victims’ material needs, and no more prominent in personal injury cases than following exclusively pecuniary loss; 3) greater monetary compensation enhances the satisfaction of both victims’ material and immaterial needs; 4) apologies further enhance their satisfaction beyond monetary compensation; 5) however, apology had little impact on settlement, which remained mostly contingent on monetary compensation. No indications were found that apologies are especially effective in personal injury cases (relative to exclusively pecuniary loss). Implications are provided for the role of apology in tort law.