Tuesday, July 29, 2014
John Oberdiek (Rutgers-Camden) has posted to SSRN Putting (and Keeping) Proximate Cause in Its Place. The abstract provides:
Before one can recover for an injury sounding in negligence, one must establish that the defendant more likely than not proximately caused the injury. That the positive law of negligence imposes this requirement is beyond controversy. What is more controversial is whether the requirement is conceptually and morally defensible. Michael Moore, singly as well as in tandem with Heidi Hurd, powerfully argues that it is neither. Specifically, Moore contends that the harm-within-the-risk test of proximate causation, despite its venerable history in tort law and reaffirmation in the latest Restatement, is “incoherent” and “morally undesirable.” It is bad enough, on Moore’s view, that negligence law bifurcates its causal inquiry, distinguishing as it does the question of actual causation from that of proximate causation, rather than pursuing a unified naturalistic inquiry into the substantiality of causal contribution. What is worse is that tort law can’t even get its own misguided causal inquiry half-right.
I do not share Moore’s jaundiced view of the harm-within-the-risk test of proximate cause – what I will call the “risk rule” for short. I begin by questioning his understanding of the risk rule as it figures in tort law, and go on to argue that neither his conceptual nor his moral criticism of the risk rule is decisive. In the course of rebutting Moore’s criticisms, I outline what I take to be the most compelling account of the risk rule in the law of torts. What emerges is a conception of proximate cause that is thoroughly moralized. Of course moral premises must be invoked to defend the risk rule’s moral merit, but, I argue, they must also be invoked to defend its conceptual coherence. In my view, the risk rule is both morally and conceptually sound.
Monday, July 28, 2014
Martha Chamallas (Ohio State) has posted to SSRN Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law. The abstract provides:
Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees.
This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law.
The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.
Friday, July 25, 2014
I posted last February about my experience at the George Mason Law & Economic Center Workshop on Risk, Injury, Liability & Insurance. In a word: fantastic.
If any of the upcoming LEC Workshop topics strike your fancy, my advice is GO! (especially to Duck Key!).
LEC WORKSHOP FOR LAW PROFESSORS ON AUSTRIAN LAW AND ECONOMICS
Wednesday, October 1 - Friday, October 3, 2014
George Mason University School of Law, Arlington, VA
Confirmed speakers include: Peter J. Boettke (George Mason University), Christopher J. Coyne (George Mason University), Israel Kirzner (New York University), Peter Leeson (George Mason University), Ragan Petrie (George Mason University), Edmund Phelps (2006 Nobel Laureate, Columbia University), Vernon Smith, (2002 Nobel Laureate, Chapman University), Oliver Williamson, (2009 Nobel Laureate, University of California at Berkeley), and Todd J. Zywicki (George Mason University School of Law).
LEC-PERC WORKSHOP FOR LAW PROFESSORS ON ENVIRONMENTAL ECONOMICS
Saturday, December 6 - Wednesday, December 10, 2014
Hawks Cay Resort, Duck Key, FL
Confirmed speakers include: Jonathan H. Adler (Case Western Reserve University School of Law), Terry L. Anderson (Property and Environment Research Center), Henry N. Butler (George Mason University School of Law), and Dean Lueck (University of Arizona).
LEC WORKSHOP FOR LAW PROFESSORS ON THE ECONOMICS OF LITIGATION AND CIVIL PROCEDURE
Thursday, January 29 - Sunday, February 1, 2015
Hawks Cay Resort, Duck Key, FL
Confirmed speakers include: Robert G. Bone (University of Texas at Austin School of Law), Jonah B. Gelbach (University of Pennsylvania Law School), and Bruce H. Kobayashi (George Mason University School of Law).
TERMS AND CONDITIONS APPLICABLE TO ALL THREE WORKSHOPS:
1. NO TUITION
2. ATTENDANCE AND PARTICIPATION: Attendees are required to attend all sessions and group meals. Attendees are expected to be prepared and to actively participate in the discussions.
3. HOTEL ROOMS: The LEC makes reservations and pays for rooms via direct bill.
4. MEALS: The LEC provides group meals and breaks for all attendees.
5. TRANSPORTATION: Attendees are responsible for making their own transportation arrangements.
6. DEPOSIT: For each workshop, accepted applicants must make a $500 deposit bonding their attendance within 30 days of acceptance. For each workshop, the deposit is refunded within 30 days after successful completion of the workshop.
7. APPLICATION PROCEDURE: Please use the link below to apply: http://www.cvent.com/Surveys/Welcome.aspx?s=921dfb49-5ceb-44bd-87df-bd63d4acc371
8. ACCEPTANCE: The LEC will begin evaluating applications as they are received.
ADDITIONAL INFORMATION: For more information regarding these conferences or other initiatives of the Law & Economics Center, please visit: http://www.MasonLEC.org
You may also call or send an email to Jeff Smith, Coordinator, Henry G. Manne Program in Law & Economics Studies, at 703.993.8382 or jsmithQ@gmu.edu
Thursday, July 24, 2014
The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on the hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by modern scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries.
This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law.
Wednesday, July 23, 2014
Here's a good one for your class on negligence:
A California appellate court has held that a man who fell off a cliff while drunk can sue the friends who brought him to the cliff to watch the sunrise after a night of partying. The court found that the plaintiff "created a triable issue of material fact as to whether [the defendant] breached a duty owed to [the plaintiff] by bringing him to the cliff side when she knew he was intoxicated and waiting several hours to call 911 or otherwise summon aid after the fall."
Courthouse News has more.
Tuesday, July 22, 2014
On Monday in my home county, a jury returned a defense verdict in the tragic case of a man who became a quadriplegic in a sprint-car racing accident at the Williams Grove Speedway on September 5, 2008. The plaintiff argued the speedway should have had a device (a catch fence) in place that would have greatly reduced the likelihood of injuries. In addition to denying that allegation, the speedway presented a waiver supposedly signed by the plaintiff. (Like many jurisdictions, Pennsylvania upholds the express assumption of risk doctrine in the recreational context.) Plaintiff argued that the date and witness lines of the waiver form were not filled in and the waiver was, thus, invalid. The jury deliberated 3 hours before determining the waiver was valid and, therefore, reaching a defense verdict. The Patriot-News has details.
Riaz Tejani (University of Illinois Springfield-Department of Legal Studies) has posted to SSRN National Geographics: Toward a 'Federalism Function' of American Tort Law. The abstract provides:
This Article defends current contours in the federalization of tort law wherein norms have been federalized in discrete substantive areas although remaining shielded from federal incursion in others. As suggested here, it becomes the task of judges to develop and refine these contours in the same fashion that they serve public law needs elsewhere through adjudication. In support of this claim, this Article develops what I term the “federalism function” — the capacity for torts disputes to implicate the balance of federal and state authority and thereby reinforce or recalibrate that balance in large or small measure. Indeed, as problems of scale cut increasingly across political persuasion and economic worldview, the balance of central and local power through federalism becomes a key implication of many torts disputes today. This discussion is overdue in light of wider debates about federal preemption and state sovereignty. Immigration reform and marijuana regulation are but two hot-button issues that illustrate the contemporary struggle over federalism. More than tort law, these areas implicate what many have come to describe as “global governance” — the effort to assert uniform norms across ever-wider geographic and political distances. Because immigration and marijuana policies necessarily affect the flow of people and things across the international border, they more understandably implicate and undermine the idea of states’ rights. Tort law, meanwhile, still deals in cognizable, individual harms to person and property and has been the domain of state authority for centuries. Nevertheless, tortious conduct increasingly flows across state boundaries via mass-market actors and increased communication technologies. Adjudication in tort disputes increasingly takes the form of “public” or “regulatory” law. It is then, in light of federalism’s widespread influence in policy discussions across the spectrum, not surprising to find the integrity of state common law up for reconsideration in many tort cases. This reconsideration forms the federalism function.
Monday, July 21, 2014
Like many, we were stunned to learn of the death of Dan Markel over the weekend. Dan, a professor at Florida State College of Law, was a co-founder of PrawfsBlawg and a prolific scholar in the area of punishment and retributive justice. The local ABC News station reports that Dan was shot at his home on Friday and passed away the following day at an area hospital.
PrawfsBlawg has an on-line memorial for their colleague and friend here.
Paul Caron has collected the news reports on this tragedy here.
- Sheila and Chris
Friday, July 18, 2014
About a year ago, we reported that Ralph Nader had purchased an old bank in his hometown of Winfield, Connecticut for his "American Museum of Tort Law."
The Associated Press now reports that construction crews have begun inside demolition work on the building. Nader hopes that the museum will open in Fall 2015.
Thursday, July 17, 2014
In Bostic v. Georgia Pacific Corp., the Texas Supreme Court rejected the "any exposure" or "some exposure" theory of causation, and held that a "substantial factor test" applies to causation in asbestos cases.
Debra J. LaFetra at Pacific Legal Foundation has a full write up of the decision.
Wednesday, July 16, 2014
David Hyman (Illinois) and Charles Silver (Texas) have posted to SSRN Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation. The abstract provides:
It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed partners and practice groups. Small and mid-sized firms and solo practitioners are facing similar challenges. Some of these developments are attributable to the financial crisis and the Great Recession. Others are the result of structural and technological changes affecting the market for legal services — and those changes have revealed new weaknesses in the business forms through which lawyers have traditionally delivered legal services. To most inhabitants of Biglaw, these changes and challenges are unprecedented, but to lawyers who do medical malpractice and personal injury litigation, market turbulence of this sort is old hat. Over the past three decades, there have been dramatic changes in the market (and demand) for such services. Some of these changes are clearly attributable to legislative action, including caps on noneconomic or total damages, and procedural hurdles such as screening panels, certification requirements, and interlocutory appeals of expert witness reports. But, even in states that have not taken such steps, there has been a long-term secular decline in the volume of medical malpractice litigation. Apart from the highly visible public brawl over the merits of damage caps, these developments have attracted little attention. However, the dynamics are clear to those who wish to pay attention to them. In this Article, we explore these trends, highlight the ways in which they have interacted with one another, and then briefly discuss why it is not helpful to analyze these developments in terms of their impact on “access to justice.”
Tuesday, July 15, 2014
Monday, July 14, 2014
James Rustad, son of TortsProf Mike Rustad, is a singer/songwriter who focuses on social commentary. Given his father's interest in torts, it's no surprise that some of his songs have a torts theme. Take a listen to his "The Great Inevitably Exploding Ford Pinto." James has his own YouTube channel here.
Friday, July 11, 2014
TortsProfs' own Chris Robinette is quoted in this Washington Post article about the verdict against the L.A. Dodgers stemming from the 2011 beating of a Giants fan in the stadium parking lot. The victim sued the Dodgers for failure to provide adequate security. On Wednesday, a jury found for the plaintiff, and the Dodgers are liable for nearly $14 million of the verdict.
Erik Encarnacion has posted "Corrective Justice as Making Amends" to SSRN. The abstract provides:
Many tort theorists claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, several tort theorists have criticized traditional corrective justice theories for, among other things, failing to account for key structural features of tort practice. This article outlines and defends an alternative conception of corrective justice called the making amends conception. By understanding corrective justice as just another name for the familiar moral phenomenon of making amends, and by viewing tort law as a formalization of that informal phenomenon, we can arrive at a conception of corrective justice that can resist the criticisms while providing an independently attractive picture of tort law.
Thursday, July 10, 2014
So understandably, one bride asked theoperators of the Doubletree Hotel & Suites in historic Charleston to assure her that her courtyard ceremony "would not be disrupted by hotel guests not in attendance."* Not as understandably, the hotel allegedly agreed to this clause. Now, the wedding venue - the hotel's courtyard area - is overlooked by guestrooms, and on the big day, one hotel guest decided to bare all in the window of his room while the wedding ceremony below was in progress. The distraught bride has now sued the hotel for what sounds like an intentional infliction of emotional distress claim, and seeks actual and punitive damages.
Courthouse News has more.
(Photo credit: Doubletree Hotel & Suites. Presumably, this advertising photo is not of the wedding in question...)
*Presumably, there would be no lawsuit if the alleged nudist had been a guest of the wedding itself.
Wednesday, July 9, 2014
A Yankees fan who fell asleep at the April 13th Yankees-Red Sox game is now suing the Yankees, Major League Baseball and ESPN for defamation, following the live airing of the napping fan on ESPN and later posting of the video on mlb.com. The plaintiff is seeking $10 million in damages after the "unending verbal crusade."
Smoking Gun has a copy of the complaint.
PS. The Yankees won, 3-2.
Tuesday, July 8, 2014
Like many jurisdictions, Pennsylvania allows common law bad faith claims to be assigned from the insured/defendant in the tort case to the plaintiff in the tort case. Also like many jurisdictions, Pennsylvania has a statutory component to its bad faith law (42 Pa. C.S.A. 8371, enacted in 1990). The Third Circuit has certified a question to the Supreme Court of Pennsylvania asking it to clarify whether the statutory component, like the common law cause of action, is assignable. Judge John Jones, of the Middle District of Pennsylvania, held statutory bad faith claims are assignable, based on lower state court and prior Third Circuit cases. The issue is whether the tort basis of the statutory claim distinguishes it from the contract basis of the common law claim for purposes of assignability. The case is Allstate v. Wolfe (Docket No. 39 MAP 2014) and we should receive an answer in the coming months.
Monday, July 7, 2014
Judge James Turk, who presided over federal court in Roanoke, Virginia for over 40 years, died Sunday at the age of 91. Turk is best known among torts enthusiasts as the presiding judge in the 1981 trial of Falwell v. Flynt. I practiced in front of him and found him a fair judge and a very warm and decent human being. The Roanoke Times has a notice.