TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Wednesday, September 28, 2016

Silver et al. on Med Mal Settlements in the Shadow of Insurance

Charles Silver, David Hyman, Bernard Black, and Myungho Paik have posted to SSRN Policy Limits, Payouts, and Blood Money:  Medical Malpractice Settlements in the Shadow of Insurance.  The abstract provides:

In prior research, we found that policy limits in Texas medical malpractice (“med mal”) cases often served as de facto caps on recoveries in both tried and settled cases. We also found that physicians faced little personal exposure on malpractice claims. Out-of-pocket payments (OOPPs) by physicians were rare and usually small. Physicians could reduce their personal exposure to near zero by carrying $1 million in primary coverage ― a standard amount in many states. Finally, the real amount of insurance coverage purchased by physicians with paid claims declined substantially over 1988–1999, consistent with physicians learning over time how low the OOPP risk was and deciding to carry less coverage.

We now revisit our findings, using an extended dataset (1988–2005) that lets us study policies purchased through 2003, which encompasses the period during which Texas experienced a med mal insurance crisis (1999–2003) and adopted tort reform to limit med mal lawsuits (2003). Our updated findings are largely consistent with our original findings: policy limits continue to cap recoveries; physicians still rarely make OOPPs; most OOPPs are modest; and real policy limits continue to shrink. We also find evidence that, at the end of the extended period, physicians often purchased less coverage (i.e., policies with limits of $100,000–$200,000 instead of $500,000–$1 million).

Our findings have important policy implications. If physicians carry less real coverage over time, lawsuits should become less profitable. This will make it harder for injured patients to find plaintiffs’ lawyers willing to handle their cases; shift the cost of medical injuries away from providers and toward patients and first-party health insurers; weaken liability insurers’ incentives to monitor providers; and diminish the (already modest) deterrent effect of tort law. If these findings are representative, they may help explain the nationwide decline in med mal claiming that we document elsewhere. Finally, our findings raise questions about the explanatory power of Baker’s “blood money” norm, at least for med mal litigation.

September 28, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, September 27, 2016

IN: Tort Claim Notice Filed over Death from Chase by Off-Duty Reserve Officer

The family of an 18-year-old killed when his motorcycle crashed into a bean field has filed a tort claim notice against the town that once employed the off-duty reserve officer who chased the teen.  The teen was allegedly driving 120 miles per hour on a motorcycle without a license plate.  According to the town, the off-duty reserve officer, who has since resigned, had no authority to pursue him.  The plaintiff's lawyer made the following statement:

  “To hold the Town of Nashville liable, we must show that Burch was acting in the ‘course of his employment.’ Knowing this and in anticipation of a lawsuit, Nashville is disavowing Leonard Burch and throwing him under the proverbial bus.”

Fox59 has details.

September 27, 2016 in Current Affairs | Permalink | Comments (0)

Monday, September 26, 2016

Wriggins on Gifford & Jones on Tort Law and Race

Jenny Wriggins has reviewed Don Gifford and Brian Jones's Keeping Cases from Black Juries in the Washington & Lee Law Review Online.  The abstract provides:

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race-based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.

September 26, 2016 in Scholarship | Permalink | Comments (0)

Friday, September 23, 2016

$3M Shale Verdict: Nuisance or Toxic Tort?

The Parr family in Texas won a $3M verdict alleging they were sickened by fumes from natural gas wells.  They sued using a nuisance theory.  At oral arguments in the Fifth Circuit last week, the defendant driller argued the case did not lie in nuisance, but instead was a toxic tort case.  The key difference between the two is the lower evidentiary burden; the plaintiffs conceded they could not meet Texas's toxic tort standards.  Defendant noted:

[T]he family didn’t introduce expert testimony or other evidence supporting its claim of toxic exposure, didn’t have a doctor testify that their injuries were caused by the alleged pollutants and couldn’t prove their property was irreparably damaged by nearby drilling.

Law 360 has the story (behind a free registration wall).

September 23, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, September 22, 2016

Ford Faces Sunroof Class Action

A suit filed in California alleges some of Ford's sunroofs are dangerous and Ford has been aware of it for nearly a decade.  The suit specifically alleges that as sunroofs have expanded over larger portions of the roof of cars, they have become less safe:

At least 70 owners of Ford vehicles have reported to the National Highway Traffic and Safety Administration that at least 80 panoramic sunroofs have shattered. The complaint alleges Ford has known about this problem since at least 2008 due to complaints to the NHTSA about defective sunroofs shattering in the Ford Edge. Ford has been the subject of an ongoing investigation by the NHTSA on this issue since May 2014.  

AdvantageNews.com has the story.

September 22, 2016 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0)

Wednesday, September 21, 2016

Robinson et al. on Warnings

Lisa Robinson, Kip Viscusi, and Richard Zeckhauser have posted to SSRN Efficient Warnings, Not 'Wolf or Rabbit' Warnings.   The abstract provides:

Governments often require that products carry warnings to inform people about risks. The warnings approach, as opposed to the command and control approach to risk regulation, functions as a decentralized regulatory mechanism that empowers individuals to make decisions that take into account their own circumstances and preferences. Thus, individuals will be aware of the risks and the value of taking precautions, and they may avoid a product that others consume if they find the risk unacceptable. Ideally, warnings would allow individuals to assess both their personal level of risk and the benefits they will receive from another unit of consumption. Then those receiving positive expected benefits will consume more; those receiving negative net benefits will curtail their consumption. Only Pangloss would be happy with the current warning system. It fails miserably at distinguishing between large and small risks; that is to say between wolves and rabbits. Such a system is of little value, since people quickly learn to ignore a warning, given that rabbits, which pose little danger, are many times more plentiful than wolves. When a wolf is truly present, people all too often ignore the warning, having been conditioned to believe that such warnings rarely connote a serious threat. We illustrate the clumsy-discrimination issue with examples related to cigarette labeling, mercury in seafood, trans fat in food, and California’s Proposition 65. We argue that the decision to require a warning and the wording of the warning should be designed in a manner that will lead consumers to roughly assess their accurate risk level, or to at least distinguish between serious and mild risks. Empowering individuals to make appropriate risk decisions is a worthwhile goal. The present system fails to provide them with the requisite information.

September 21, 2016 in Scholarship | Permalink | Comments (0)

Monday, September 19, 2016

Fifth "Colonial Frontier" Legal Writing Conference at Duquesne Law

On December 3, 2016, Duquesne Law will host the Fifth "Colonial Frontier" Legal Writing Conference.  Entitled "Drafting Statutes and Rules:  Pedagogy, Practice, and Politics", the flyer is here:  Download The Fifth Colonial Frontier Legal Writing Conference, Description.

September 19, 2016 in Conferences | Permalink | Comments (0)

Friday, September 16, 2016

LA: Study Urges Changes in Consumer Protection Law

Emory's Joanne Shepherd has authored a study, commissioned and funded by the American Tort Reform Foundation, finding Louisiana's consumer protection laws need to be revamped.  She concludes the combination of vagueness and expansive damages has resulted in exploitation by trial lawyers, leading to litigation that costs the consumers the laws were designed to protect.  Louisiana Record has the story.

September 16, 2016 in Current Affairs | Permalink | Comments (0)

Geistfeld on the Economic Loss Rule

Mark Geistfeld has posted to SSRN The Contractually Based Economic Loss Rule in Tort Law:  Endangered Consumers and the Error of East River Steamship.  The abstract provides:

The rule of strict products liability has been widely adopted in the U.S., subjecting manufacturers and other product distributors to strict tort liability for physical harms proximately caused by defective products. The scope of strict products liability has also been widely limited to bar tort recovery for cases in which the defect only damaged the product itself, causing pure economic losses such as repair costs and lost profits. In these cases, a growing majority of courts have followed the approach charted by the U.S. Supreme Court in East River Steamship Corp. v. Transamerica Delavel Inc., which barred tort recovery for stand-alone economic harms to ensure that contract law does not “drown in a sea of tort.” Relying on this reasoning, other courts have applied the rule to dismiss tort claims for pure economic losses caused by the negligent performance of a service contract.

As specified by East River Steamship, the economic loss rule is fully defined by two formal properties. If the form of the parties’ relationship permits the allocation of loss by contracting, and if the form of the alleged injury is for pure economic loss, then the rule bars tort recovery. Across the full range of tort cases, however, these two formal properties do not always determine whether tort law permits recovery for pure economic loss, creating a body of case law that appears to be in considerable disarray.

The economic loss rule is routinely justified with a contracting rationale, yet that rationale has never been substantively developed. Doing so shows that the availability of tort recovery for pure economic losses depends on whether the ordinary consumer has the requisite information to protect the relevant set of interests by contracting. In considering the allocation of liability for economic losses that only implicate economic interests in lost profits and the like, the ordinary consumer is sufficiently well informed to protect these interests by contracting. But as established by the substantive rationale for strict products liability, the ordinary consumer is unable to make informed contractual decisions about product risks threatening physical harm. The same contracting problem extends to certain types of pure economic loss, including the financial costs of medical monitoring and asbestos abatement. Consequently, the substantive contracting rationale justifies an intermediate economic loss rule that permits endangered consumers to recover tort damages for these types of pure economic loss while otherwise denying tort recovery for disappointed product users. The same conclusion applies to service contracts. This contractually based intermediate economic loss rule explains the full body of case law while being substantively consistent with the widely adopted rule of strict products liability, unlike the East River Steamship formulation.

September 16, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, September 14, 2016

AR: Governor Silent on Ballot Measure

This November, Arkansawyers/Arkansans (not entering this debate!) are voting on a proposed amendment to the state constitution which would allow the legislature in medical lawsuits to set a cap on damages of at least $250,000 and to limit attorney's fees to one-third of the recovery.  Governor Hutchinson has remained neutral on the issue.  He says he will likely tell voters how he will vote on the measure, but not anytime soon.  Arkansas Online has the story.

September 14, 2016 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Tuesday, September 13, 2016

Lester Brickman Retires from Cardozo

Lester Brickman, who has written in mass torts and contingent fee reform, is retiring from Cardozo, where he was a founding member of the faculty.  Cardozo's website has an announcement here.

(Via Olson/Overlawyered)

September 13, 2016 in TortsProfs | Permalink | Comments (0)

Monday, September 12, 2016

Battery Claim on a Law Faculty

I missed this initially, but about 3 weeks ago, the ABA Journal reported that a battery claim between law professors has been dismissed.  The dispute arose out of an encounter in which one professor (and associate and/or interim dean) wanted to speak to another (Torts) professor about a dispute between the Torts professor and a librarian.  Descriptions of the touching that started the encounter differed.  The dean/professor said he placed his hand on the shoulder of the Torts professor; the Torts professor said the dean/professor grabbed his shoulder and began berating him.  The Torts professor filed a battery claim, but the judge dismissed it because the contact was not harmful or offensive.  The story is here.

 

September 12, 2016 in Current Affairs | Permalink | Comments (0)

Friday, September 9, 2016

Arbel & Kaplan on Apologies

Yonathan Arbel & Yotam Kaplan have posted to SSRN Tort Reform through the Backdoor:  A Critique of Law & Apologies.  The abstract provides:

In this Article we show how the biggest tort reform of the last decade was passed through the backdoor with the blessing of its staunchest opponents. We argue that the widely-endorsed apology law reform — a change in the national legal landscape that privileged apologies — is, in fact, a mechanism of tort reform, used to limit victims’ recovery and shield injurers from liability. While legal scholars overlooked this effect, commercial interests seized the opportunity and are in the process of transforming state and federal law with the unwitting support of the public.

September 9, 2016 in Scholarship | Permalink | Comments (0)

Thursday, September 8, 2016

Fleming Award in Torts Bestowed Upon Lewis Klar

University of Alberta Professor Lewis N. Klar is the 2016 recipient of the prestigious John G. Fleming Award in Torts, according to an announcement yesterday by UC Berkeley Law School. A giant in the world of Canadian tort law, Klar will deliver the fourth Fleming Lecture at Berkeley Law on Wednesday October 26, 2016 at 11:20 a.m. in room 105 of the law school. 

John Fleming was the 20th century’s leading scholar of comparative tort law, as perhaps befitting someone who was born in Germany, educated in England, served as a law dean in Australia and spent the bulk of his illustrious career at Berkeley.  Professor Fleming’s treatise on The Law of Torts, drawing on the common law of a wide range of countries, is currently in its 10th edition.  Fleming served for many years as the editor-in-chief of the Berkeley-based American Journal of Comparative Law.

Upon Professor Fleming’s death in 1997, the Fleming prize was created in his honor to be awarded bi-annually to an international scholar in tort law.  Professor Klar is the 10th winner of the prize.  Previous recipients include law professors Harold Luntz of Melbourne, Guido Calebresi of Yale, Stephen Todd of New Zealand’s UC Law, Basil Markesinis of Univ. College London, Robert Rabin of Stanford, Mike Green of Wake Forest Univ., Bill Powers of Texas, Helmut Koziol of Univ. of Vienna and Judge Allen Linden of Canada.  Linden will travel to Berkeley to present the Prize to Professor Klar.

More recently, owing to the generosity of the Fleming family and Joe and Cathy Feldman of Chicago, Berkeley Law created the Fleming Lecture, to be delivered by the Fleming Prize winner. Professor Klar’s lecture is titled “The Ebbs and Flows of Tort Law: Reflections on a Half Century of Tort Law.” The Fleming Lecture is open to the public. 

Professor Klar served as Dean of the Faculty of Law at the University of Alberta from 1997 to 2002. He was admitted to the Bar of the Province of Quebec in 1971 and the Law Society of Alberta in 2000. He was awarded a Queen’s Counsel in 2002, and received the Distinguished Service Award for his contribution to legal scholarship from the Law Society of Alberta and the Canadian Bar Association (Alberta) in 2005. In 2007, Professor Klar received the J. Gordin Kaplan Award for Excellence in Research from the University of Alberta. This is the university’s most senior and prestigious research award. In 2008, Professor Klar received the Hon. Tevie H. Miller Teaching Excellence Award from the Faculty of Law.

Professor Klar is the author of Tort Law, 5th edition, 2012, and a co-author of Canadian Tort Law: Cases, Notes & Materials, 14th edition, 2014. In recognition of Professor Klar’s contributions to tort law, a Special Edition of the Alberta Law Review has just been published in his honour. Professor Klar was a contributor to the 10th edition of Fleming’s The Law of Torts (2011) as well as to Torts Tomorrow: A Tribute to John Fleming (1998). Professor Klar is an elected member of the American Law Institute. His works have been cited hundreds of times by the courts in every province in Canada, including the Supreme Court of Canada.

September 8, 2016 in TortsProfs | Permalink | Comments (0)

Tuesday, September 6, 2016

Goodman on a Choice Med Mal System

In Forbes, John Goodman, Senior Fellow at the Independent Institute, discusses the well-known shortcomings of the tort system for medical malpractice.  He then proposes an alternative:

Prior to undergoing treatment, patients would be offered voluntary, no-fault insurance as an alternative to the tort system. The base patient compensation would be set by an independent commission and would be paid irrespective of the cause of the adverse event. The rates would be similar to the schedule of payments under workers’ compensation and patients would be free to pay additional premiums out of their own pockets for more generous coverage. Base compensation would be paid by insurers from premium payments by hospitals and physicians—just as they buy malpractice insurance today. The premiums would reflect the individual provider’s (or institution’s) success or failure at reducing adverse events.

Insurance companies, rather than patients and third-party payers, would become the monitors of hospital quality. Providers whose patients experience a lot of adverse events would face high premiums. As the insurance premiums become reflected in hospital and doctor fees, patients and their insurers would become aware of potentially large differences in the cost of care. Price competition would drive patients to lower-cost, higher-quality care.

The entire article is here.

September 6, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, August 30, 2016

Ralph Brill Retires from Chicago-Kent

From Richard Wright:​
 
In a recent post to the Tortprof discussion list, my long-time colleague, Ralph Brill, announced the imminent closing of that discussion group, which he initiated and managed for many years, due to his pending retirement and the few postings on that list in recent years. I (and others) attempted to post responses regarding both the list and Ralph's accomplishments during his almost 60 years of teaching. However, the list was closed down immediately, so ​(I believe) ​neither my posting or any other posting went through. I appreciate being able to make this post on the Tortsprof blog to acknowledge Ralph's lifetime work and to suggest an alternative, much more active list for those previously enrolled in the Tortprof list.
  
Ralph's retirement from Chicago-Kent at the end of this academic year after almost 60 years of teaching Torts (and other courses) deserves widespread acknowledgement. However, it unfortunately is likely to be little noted, at least among Torts scholars, since Ralph has always devoted his efforts more practically to actual cases (for which he has filed many persuasive briefs) and, especially, teaching and dissemination of information to students and faculty where he works and worldwide. He is rightfully regarded among Legal Writing and Research professors as the leading innovator and champion of work in that area, having created long ago Chicago-Kent's three-year Legal Writing and Research program staffed by full-time faculty, which has since been copied in part or whole by almost all other law schools. His creation and management of the Tortprof discussion list is only a small indication of his efforts to facilitate dissemination of information to relevant audiences. We at Chicago-Kent receive several emails from Ralph every day with information about relevant developments in legal academia.
 
I have a personal debt to acknowledge. When I joined Chicago-Kent 30 years ago, Ralph likely was not one of my biggest supporters, given my more theoretical bent, although I have always insisted on theory being based on or at least taking into account actual practice, Yet he immediately welcomed me and took me under his wing. From the beginning of my time at Chicago-Kent, he has been my closest associate, professionally and personally. He has been my go-to person for any question about tort liability, in addition to providing me and other Torts professors at Chicago-Kent with information about recent cases and other developments. He has also been a role model for me in speaking up, however unpopular the view might be among the faculty generally, for actions that benefit our students rather than we faculty members.
 
I will greatly miss having Ralph always around at Chicago-Kent, but I hope to continue to benefit from his friendship and advice.
 
The Tortprof discussion list is gone.  As Ralph noted in his final post, this will not be a major loss, given the minimal use of Tortprof. For those of you who have not already done so, I encourage you to join the Obligations Discussion Group (obligations@uwo.ca), which is much more active and international, which discusses private law more generally but mostly Tort law. ​ Its members mainly are from the English Commonwealth, but it includes a substantial number of scholars from the USA and a small but growing number from civil law jurisdictions. To subscribe to the list, send an email to Professor Jason Neyers (jneyers@uwo.ca) and include information about your academic or professional legal affiliation.​

August 30, 2016 in TortsProfs | Permalink | Comments (1)

Monday, August 29, 2016

Sugarman Wins Prosser Award

Steve

The AALS Section on Torts and Compensation Systems is pleased to announce that the recipient of the 2017 William L. Prosser Award is Stephen Sugarman, Roger J. Traynor Professor of Law at the University of California, Berkeley School of Law.

The Prosser Award recognizes outstanding contributions in scholarship, teaching and service related to tort law. Nominations are made by fellow tort scholars, and the recipient is selected by former Prosser Award winners and former chairs of the AALS Torts Section, with approval of the Torts Section Executive Committee. Professor Sugarman’s award, and his many contributions to tort law, will be recognized at the Torts Section meeting at the AALS Annual Meeting in San Francisco, at 1:30 pm on Friday, January 6th, 2017.

August 29, 2016 in TortsProfs | Permalink | Comments (0)

Friday, August 26, 2016

Two from Hart Publishing

Hart Publishing has published James Edelman and Elise Bant's Unjust Enrichment.  From the blurb:

Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors' thinking, responding to novel issues and circumstances that have arisen in the maturing case law, has required many chapters of the book to be completely rewritten. The scope of the book is also much broader. It concerns the principles of the law of unjust enrichment in Australia, New Zealand, England and Canada. Major decisions of the highest courts of these jurisdictions in the last decade provide a fertile basis for examining the underlying principles and foundations of this subject. The book uses the leading cases, particularly in England and Australia, to distil and explain the fundamental principles of this branch of private law. The cases discussed are current as of 1 May 2016 although the most recent could only be included in footnotes.

For a 20% discount, download this flyer:  Download Edelman_Bant

Hart has also published Alan Beever's A Theory of Tort Liability.  From the blurb:

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.

For a 20% discount, download this flyer:  Download Beever

August 26, 2016 in Books, Scholarship | Permalink | Comments (0)

Sant'Ambrogio & Zimmerman on Agency Class Actions

Michael Sant'Ambrogio and Adam Zimmerman have posted to SSRN Inside the Agency Class Action.  The abstract provides:

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

August 26, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, August 24, 2016

Abraham & White on Party Testimony and Tort Law

Ken Abraham & Ted White have posted to SSRN The Transformation of the Civil Trial and the Emergence of American Tort Law.  The abstract provides:

Everyone agrees that American tort law expanded significantly in the late nineteenth century. But the story of that change, as usually told, is radically incomplete. One important precondition of tort law as we now know it was a major change in evidence law, one that only began to emerge after 1850. Before then, plaintiffs, defendants, and other “interested” parties were almost universally prohibited from testifying in civil trials. With this prohibition on party testimony, what the jury knew about the facts underlying a tort action was derivative and incomplete. Far fewer tort actions were brought at all, because often the only evidence available to the plaintiff was his or her own account of what had happened, and that was inadmissible. But with the change, victims of personal injury were now able to describe, before juries, the circumstances in which they had been injured. They were able to talk about what they had done, what the entities they were suing had done or not done, and how they had suffered. They no longer needed the fortuitous presence of third-party witnesses to elicit testimony about how had they had been injured. The abolition of the prohibition on party testimony, in short, made it much easier to succeed in personal injury lawsuits.

At stake in this transformation was the very epistemology of the civil trial. With the admission of party testimony, civil trials went from being pre-modern efforts to resolve disputes whose outcomes were affected by the spiritual weight assigned to oaths taken by third-party witnesses, to the modern searches for factual truth that we now (incorrectly) assume they always have been. Without this transformation, other factors that later brought about modern tort liability could not have exercised the influence that they did have. The transformation created the very conditions under which modern tort law could, and then did, emerge. Yet the transformation and its significance for tort law have gone largely unrecognized. Modern tort scholars appear to be completely unaware of the prohibition on party testimony, and have therefore failed for more than a century to take it into account in the way they have written and taught about the development of the law of torts. Because the rules and practices that preceded the transformation have now completely disappeared from modern torts cases, what it accomplished may appear, incorrectly, to have always been the case. But it is lack of visibility, rather than lack of responsibility, that has actually been at work in hiding the significance of the transformation for the emergence of modern tort law.

(Via Solum/LTB)

August 24, 2016 in Scholarship | Permalink | Comments (0)