Friday, September 22, 2017
Nadia Sawicki has posted to SSRN Choosing Malpractice: A New Narrative for Limiting Physician Liability. The abstract provides:
Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to contractually modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases – dealing with experimental medical treatment and Jehovah’s Witness blood refusals – lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.
Thursday, September 21, 2017
Steve Sugarman has posted to SSRN Torts and Guns. This piece is an expansion of his remarks at last year's AALS Torts Section panel and will appear in volume 10:1 of the Journal of Tort Law. The abstract provides:
When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCCA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.
Tuesday, September 19, 2017
Mark Geistfeld has posted to SSRN Protecting Confidential Information Entrusted to Others in Business Transactions: Data Breaches, Identity Theft, and Tort Liability. The abstract provides:
Tort litigation over data breaches — defined here as the theft of one’s confidential information entrusted to another in a business transaction — most commonly involves the negligence cause of action. These claims turn on a number of issues that require searching analysis, including the manner in which the economic loss rule affects the tort duty, the relation between the negligence standard of care and strict liability, and the appropriate forms of compensable loss. Substantive analysis of these issues shows that they all can be resolved in favor of the negligence claim, which in turn justifies a rule of strict liability. The economic loss rule does not provide a substantive rationale for barring tort claims because customers do not have the information necessary to adequately protect their interests by contracting. Moreover, the common-law tort duty can be independently justified by the legislative policy decisions embodied in statutes that regulate data breaches. To prove a breach of the duty to exercise reasonable care, the victims of identity theft will often face considerable evidentiary difficulties stemming either from the complexity of data-security systems or the unreliability of other relevant evidence involving the conduct of defendant’s employees. For reasons recognized by tort law in analogous contexts, the evidentiary difficulties of proving negligence can justify a rule of strict liability for enforcing the tort duty to exercise reasonable care. Finally, the important forms of damages caused by identity theft — the cost of credit-monitoring services and the like, unauthorized charges, and any significant loss of time and emotional distress — are all compensable as a matter of basic tort principles. Strict tort liability in these cases ultimately finds justification in the important public policy of maintaining the integrity of market transactions.
Monday, September 18, 2017
Friday, September 15, 2017
Thursday, September 14, 2017
OH: Dram Shop Act is Sole Avenue to Recovery for Injuries Caused by an Establishment Furnishing Alcohol
At Legally Speaking Ohio, Marianna Brown Bettman analyzes a case handed down by the Ohio Supreme Court last week. The court held that the state's dram shop act precluded common law negligence liability for serving alcohol that causes injuries.
Wednesday, September 13, 2017
Issue 2017:2 of the Journal of Tort Law is devoted to a symposium on the Restatement of Intentional Torts to Persons. Authors include Anita Bernstein, Ellie Bublick, Martha Chamallas, Nancy Moore, Steve Sugarman, and Richard Wright. The Reporters, Ken Simons and Jonathan Cardi, will draft a response. Mark Geistfeld's contribution to the issue, Conceptualizing the Intentional Torts, has just been posted to SSRN. The abstract provides:
According to the most recent draft of the Restatement (Third) of Torts: Intentional Torts to Persons, the intentional torts protect the rightholder’s interests differently from negligence-based rules and strict liability, placing them into a distinct substantive category. This conceptualization, however, does not provide courts with adequate guidance on how to formulate the element of intent. Different formulations can protect the rightholder’s interests differently from negligence and strict liability, so something else must determine the appropriate way to formulate the element of intent.
The draft Restatement’s reasoning can be easily extended to provide a more useful conceptualization of the intentional torts. The practice of tort law involves the enforcement of behavioral norms, and so the substantive categories of tort law should correspond to normatively distinguishable categories of behavior. For tort purposes, three different paradigmatic forms of social behavior are relevant: aggressive interactions; interactions of mutual advantage; and the remaining nonaggressive, risk-creating interactions that are not motivated by an expectation of mutual benefit. Within this normative framework, the category of intentional torts is defined by aggressive interactions, which involve intentional harms that are normatively different from accidental harms. The intentional torts accordingly protect different interests in a distinctive manner as per the rationale in the draft Restatement.
This normative framework straightforwardly explains a number of established rules while also resolving two questions of intent that have vexed courts and commentators. Difficult issues of intent involve hard questions about how the conduct is best categorized for tort purposes. Once the categories have been conceptualized in behavioral terms, the element of intent has a clear substantive purpose: it determines whether or not an interaction is aggressive and properly governed by the intentional torts.
Tuesday, September 12, 2017
AALS Torts & Compensation Systems Section
January 5, 2018; 1:30 pm - 3:15 pm (Register here)
The Role of History in Tort Theory
Claims about the nature of tort law are often coupled with historical claims. Thus, many mid-twentieth century proponents of an expansive, compensation-oriented tort law argued strict liability was prevalent under the common law writ system. What is the purpose of such appeals to history? Are they necessary to tort theory, or merely tangential? Does the importance of history depend on whether the theory is descriptive or normative? A panel of experts takes up these issues and wrestles with the role of history in theorizing about tort law.
Speaker: Martha E. Chamallas, The Ohio State University, Michael E. Moritz College of Law
Speaker: John C.P. Goldberg, Harvard Law School
Moderator: Christopher J. Robinette, Widener University Commonwealth Law School
Speaker: G. Edward White, University of Virginia School of Law
Speaker: John F. Witt, Yale Law School
The 2018 Prosser Award will be presented to Marshall S. Shapo, Northwestern University Pritzker School of Law .
Monday, September 11, 2017
Hanoch Dagan & Roy Kreitner have posted to SSRN The Bureaucrats of Private Law. The abstract provides:
Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory bureaucracies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this collectivist mold, but not all. A significant subset of the regulatory practice deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people. This Essay focuses on these private law bureaucracies, which regulatory theory marginalizes or neglects.
Our mission is threefold. Descriptively, we show that many agencies are indeed best understood as devices that supplement or even supplant the role of courts in addressing horizontal, rather than vertical or collectivist, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal interactions in core social settings, such as the workplace or the marketplace.
Normatively, we argue that the seeming consensus among theorists of both private law and regulation, in which these tasks belong to judges, rather than administrators, is misguided. In many contexts – increasingly prevalent in contemporary society – agencies, rather than (or in addition to) courts, may well be the (or at least an additional) appropriate institution for the articulation, development, and vindication of our interpersonal rights.
Finally, jurisprudentially, we offer some initial steps towards a theory of private law bureaucracies. We demonstrate the regulatory implications – in both substance and form – of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction and advance a preliminary account of the regulatory toolkit appropriate to this horizontal task.
Friday, September 8, 2017
Aaron Twerski and Jon Shane have posted to SSRN Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls. The abstract provides:
Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard for reasonable policing. Most courts place heavy emphasis on the foreseeability by the mall management of the likelihood of criminal activity to take place on the grounds of the mall. In doing so they rely on the testimony of security experts who intuit as to the adequacy of the staffing. This article challenges the case law on several grounds. First, experts fail to utilize objective data as to the workload of security officers on the mall. The article will demonstrate that such data is available and provides an objective measure as to adequate staffing. Second, foreseeability of crime is too uncertain a measure as to the adequacy of staffing. The question of how much foreseeability is sufficient to trigger a duty of security has bedeviled the courts. Third, courts have struggled to determine whether better security would have avoided harm to a particular crime victim. Thus, even if security is found to be inadequate it is often impossible for plaintiffs to prove causation. This article argues that once a court, based on objective data, sets the standard of reasonable care that the burden of proof that additional security would not have averted the crime to the victim should shift to the defendant management of the mall.
Thursday, September 7, 2017
The heart balm torts are back in the news. Almost all states recognized some or all of the 4 heart balm torts (alienation of affections, criminal conversation, seduction, breach of promise to marry) at one time. Now, however, only about 7 or 8 states recognize any of them. Alienation of affections and criminal conversation are the most common. These are suits against an interloper to a marriage based on the interloper alienating the affections of one spouse (alienation) or having sex with the spouse (criminal conversation). The North Carolina bar seems the most committed to them. Approximately 230 cases were filed last year in that jurisdiction.
Recently, a trial judge in Forsyth County (think Winston-Salem) ruled the heart balm torts were unconstitutional. The judge ruled that state law violates a person's constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults. The Court of Appeals in North Carolina overruled the judge. Eugene Volokh analyzes the opinion, which he pronounces "generally sound", here. That makes sense to me. I still hold, however, the same position I held a decade ago, that the torts don't make sense as a matter of tort theory.
Wednesday, September 6, 2017
David Berke, who appears to be a Yale Law student, has posted to SSRN Products Liability in the Sharing Economy. The abstract provides:
This Note undertakes an in-depth review of an important legal problem that has not yet been addressed—the role of products liability in the sharing economy. To date, two foundational questions have not been posed in the sharing economy literature, much less answered. First, what descriptive role, if any, does products liability have in the sharing economy? Second, what role should products liability have in the sharing economy and its regulation, as a normative matter? In Part I, this Note examines a hypothetical sharing economy products liability claim point-by-point and finds that, descriptively, such a claim is conceivably possible but extremely difficult. In Part II, this Note argues against this current state of the law and advocates a more robust role for products liability in the sharing economy.
Tuesday, September 5, 2017
Foreword: Tort Law as Regulatory Tool
Torts and Guns
Sugarman, Stephen D.
Any Weapon to Hand? An Essay on Gun Regulation and the Limits of Insurance
Scales, Adam F.
Products Liability As Enterprise Liability
Keating, Gregory C.
The Prosser Letters: Scholar as Dean
Robinette, Christopher J. / Graham, Kyle
Friday, September 1, 2017
Peter Cane has authored "Key Ideas in Tort Law" from Hart Publishing. The blurb provides:
This book offers nine key ideas about tort law that will help the reader to understand its various social functions and evaluate its effectiveness in performing those functions. The book focuses, in particular, on how tort law can guide people's behaviour, and the political and social environments within which it operates. It also provides the reader with a wealth of detail about the ideas and values that underlie tort 'doctrine'-tort law's rules and principles, and the way those rules and principles operate in practice. The book is an accessible introduction to tort law that will provide students, scholars and practitioners alike with a fresh and engaging view of the subject.
The table of contents:
1. Nine Key Ideas
2. Tort Law
4. Torts Unpacked
5. Torts Repackaged
7. Out and About with Tort Law
10. The Political Economy of Compensation Schemes
11. The Future of Tort Law
Thursday, August 31, 2017
Two large med mal death verdicts were just handed down in Detroit and Minneapolis.
In Detroit, a jury awarded $40M for the death of a 26-year-old college student. The decedent presented in the ER with signs of a pulmonary embolism and was sent home without the benefit of any tests, diagnosed with a virus. She died the next day. Michigan has a somewhat variable noneconomic damages cap, but the Detroit Medical Center has not yet asked for it to be applied. The Detroit News has the story.
Meanwhile in Minneapolis, a jury has awarded $20M against a hospital for the death of a 30-year-old woman who had just given birth. The family alleged an ER nurse ignored lab results showing the decedent had sepsis and sent her home. The decedent returned to the hospital 12 hours later and died. Minnesota does not have a cap. US News has the story.
Wednesday, August 30, 2017
James Goudkamp & Eleni Katsampouka have posted to SSRN Punitive Damages: Perception and Reality. The abstract provides:
Compensatory damages are awarded to compensate the claimant for loss suffered. By contrast, punitive damages are awarded in order to punish the defendant for his or her contumelious disregard of the claimant’s rights and to deter the defendant and others like him or her from acting similarly in the future. This article summarises the results of an investigation into punitive damages (see ‘An Empirical Study of Punitive Damages’, James Goudkamp and Eleni Katsampouka (2018) Oxford Journal of Legal Studies (forthcoming)). The study, which is the first of its kind in the UK, uncovers important evidence regarding punitive damages. This evidence comports with certain widely held views regarding punitive damages and casts doubt on others.
Tuesday, August 29, 2017
Tony Sebok has posted to SSRN Unmatured Attorneys' Fees and Capital Formation in Legal Markets. The abstract provides:
Attorneys in the United States are under increasing pressure to change and adopt practices commonly found in the world of finance and business. Over the past thirty years the bar and legal academics have debated what to do; the focus of this debate has been over changes to MRPC 5.4 to allow partnerships between attorneys and non-lawyers or partnerships owned by non-lawyer shareholders.
One of the reasons attorneys are debating changes in Rule 5.4 is that the practice of law depends on capital, and the old methods for raising capital are no longer sufficient. Rather than raise capital from non-lawyers by partnering with them or selling equity to them, I recommend that attorneys look to their own fees as a source of capital.
I argue that there is confusion among state bar ethics committees and some ethics commentators about whether the sale of future, or unmatured, fees is unethical. The argument that lawyers may not sell unmatured fees is based on the claim that it would be fee-splitting. I argue that those who think that the sale of unmatured fees is fee-splitting are relying on a theory of Rule 5.4 called the Direct Relation Test, which takes as its premise that it is unethical for an attorney to allow a non-lawyer to invest in her productive capacities with the aim of earning a profit. I argue that the Direct Relation Test is incoherent, and cannot be consistently maintained in a system, like ours, that allows attorneys to factor their earned fees. I also argue that the Direct Relation Test is a deontological principle that lacks normative appeal.
I conclude that ethics committees, courts, and legal ethicists should reject the Direct Relation Test and recognize that the sale of unmatured fees is not fee-splitting.
Monday, August 28, 2017
Victor Goldberg has posted to SSRN The MacPherson-Henningsen Puzzle. The abstract provides:
In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?
Thursday, August 24, 2017
Allen Linden has passed away at the age of 83. A former Justice of Canada's Federal Court of Appeal, he was named Officer of the Order of Canada in 2015. Moreover, he was a distinguished torts professor who continued to teach the subject during his judicial duties. Linden studied with William Prosser at Berkeley, and became one of Canada's most-respected torts professors, teaching primarily at Osgoode Hall Law School. In the 1960s, he authored a study on compensation for automobile accidents which led to the adoption of a no-fault plan in Ontario in 1969. I never had the honor of meeting him, but I have heard numerous friends speak of him in glowing terms. Rest in peace. An obituary is here.