Wednesday, August 16, 2017
Cathy Sharkey has posted to SSRN Can Data Breach Claims Survive the Economic Loss Rule?. The abstract provides:
Data security breach cases are fertile ground to explore the impact of the economic loss rule and to challenge the conceptual underpinnings of this judge-made doctrine. The extent to which the economic loss rule serves as a formidable barrier to credit card data security breach cases depends upon the underlying state law; in particular, whether a state adopts the majority or minority position on the rule, as well as how it defines various exceptions thereto. Upon closer examination, it becomes clear that the rule operates in a fundamentally distinct manner in the “stranger paradigm” as compared to the “contracting parties paradigm.” What makes the credit card data security breach cases so vexing is that they often straddle the stranger/contracting parties paradigms. The credit card data breach cases can be reframed in a coherent way that defers to contractual allocation of risk and responsibility but nonetheless allows tort liability to be deployed when needed to ensure the internalization of third-party costs. Seen from a broader regulatory perspective — especially taking into account state statutory provisions relating to enforcement of private industry standards in the credit card arena — the economic loss rule functions as a boundary-policing doctrine between tort and regulation as alternative mechanisms to regulate private parties. Moreover, as a more robust third-party liability insurance market emerges in response to a greater threat of tort liability, insurers will engage in further risk management, exerting more potent regulatory control.
Tuesday, August 15, 2017
The report is here: Download DC-_641863-v1-LCJ_Request_for_Rulemaking_Concerning_MDL_cases_2017
According to Rule 1, the FRCP ‘govern the procedure in all civil actions and proceedings in the United States district courts.’ It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 45 percent of the federal docket. The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising. A solution is needed, and LCJ is urging the Civil Rules Advisory Committee to undertake an effort to remedy this situation by bringing MDL cases back within the existing and well-proven structure of the FRCP. While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability. Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP.
Monday, August 14, 2017
The AALS Section on Torts and Compensation Systems is pleased to announce that the recipient of the 2018 William L. Prosser Award is Marshall S. Shapo, the Frederic P. Vose Professor of Law at the Northwestern Pritzker 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 the two most-recent Prosser Award winners and the immediate past Chair of the AALS Torts Section, with approval of the Torts Section Executive Committee. Professor Shapo's award, and his many contributions to tort law, will be recognized at the Torts Section meeting at the AALS Annual Meeting in San Diego, at 1:30 pm on Friday, January 5th, 2018.
Wednesday, August 9, 2017
Southwestern Law School is hosting a symposium on January 26, 2018 entitled "Fake News and Weaponized Defamation Global Perspectives". Abstract are due on September 25, 2017 and final papers are due January 5, 2018. Information is available here: Download Call for Papers - email (3)
Monday, August 7, 2017
Bob Rabin has posted to SSRN Perspectives on Privacy, Data Security and Tort Law. The abstract provides:
The continuing problems of data breaches, data misuse, and the consequent failure of current laws to adequately deal with these problems is widely acknowledged. In this article, I provide an overview of the regulatory enforcement and information disclosure strategies for addressing the problem before turning to the main theme of the paper: An assessment of the pathways available through tort remedies.
Friday, August 4, 2017
James Henderson has posted to SSRN The Impropriety of Punitive Damages in Mass Torts. The abstract provides:
Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.
Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.
Wednesday, August 2, 2017
Martha Chamallas and Lucinda Finley are co-editors of the torts volume of Cambridge University Press's Feminist Judgments series. The series involves rewriting legal opinions as if the judge were writing from a feminist perspective. They are seeking authors for both rewritten opinions and commentaries on key cases regarding most facets of tort law. The editors have identified approximately 16 relevant cases for discussion. The deadline to express interest is August 25th. Deadlines for the final product are in March 2018 for the opinions and April 2018 for the commentaries. More information is available here: Download Call for Authors Feminist Torts Judgments
Tuesday, August 1, 2017
Like many states, Pennsylvania is facing a budget deficit. The legislature has gotten increasingly creative in finding ways to balance the budget. Years ago, the Pennsylvania Professional Liability Joint Underwriting Association was created by state law to provide med mal insurance. Now it has $200M that a Senate bill is requesting; if the money is not given to the state by November 1st, the Senate bill would abolish the Association. The Association has threatened to sue if the state moves forward; the bill is pending in the House. The San Francisco Chronicle has details.
Monday, July 31, 2017
Arizona Governor Doug Ducey weighed in favorably on a federal med mal cap, calling it an important element of any replacement of the Affordable Care Act. Voters in Arizona have rejected a state med mal cap three times. The Arizona Daily Star has the story.
Friday, July 28, 2017
Bruce Kaufman at Bloomberg BNA has written a piece about tort reforms stalling in the Senate. The House passed several bills that have not gained traction:
The bills, two of which still lack Senate sponsors, are:
- The Fairness in Class Action Litigation Act and Furthering Asbestos Claims Transparency Act ( H.R. 985) affects nearly all facets of class action practice, and mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies. It passed the House March 9 by a 220-201 vote.
- The Innocent Party Protection Act ( H.R. 725) targets what is known as fraudulent joinder—the improper addition of local defendants to suits in a bid to keep cases in more plaintiff-friendly state courts. It passed the House March 9 by a 224-194 margin.
- The Lawsuit Abuse Reduction Act ( H.R. 720; S. 237) requires judges to impose mandatory sanctions on attorneys who file “meritless” civil cases in federal courts. It passed the House March 10 by a 230-188 margin.
Several commentators in the piece focus on a surprising amount of conservative opposition to the bills.
Thursday, July 27, 2017
Douglas Kysar has posted to SSRN The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism. The abstract provides:
Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Part I offers a brief introduction, followed in Part II by a review of existing academic literature on the pros and cons of utilizing tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Part III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Part IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Part V concludes.
Wednesday, July 26, 2017
Joe Palazzolo has a piece in the WSJ (behind a paywall) about the declining number of tort suits. According to the National Center for State Courts, less than 2 in 1,000 people filed tort suits in 2015, down from 10 in 1,000 in 1993. The story cites a number of factors as contributing to the decline, including tort reform, the increasing cost of bringing suits, improved auto safety, and a campaign by business to discredit plaintiffs and their lawyers.
Tuesday, July 25, 2017
Announcement: Publication of Materials on Tort Reform, 2nd Edition (2017) by Andrew F. Popper, Bronfman Professor of Law, American University, Washington College of Law
Early in July, West Publishing released Materials on Tort Reform, 2nd Edition (2017) by Andrew F. Popper. The goal for this edition is very much the same as it was for the First Edition: a supplemental text for torts classes that provides essays, articles, cases, and other materials allowing for consideration of all sides of the tort reform debate. In the quest to cut the Gordian knot of tort reform, the hope is to provide all points of view in an accessible and compelling manner.
While tort law has not changed dramatically since this book was first published, the tort reform debate has shifted. In the period preceding the first edition, tort reform was a battle over substantive tort law, joint and several liability, admissibility of certain evidence—in other words, issues pertaining directly to accountability and liability. Typical tort reform proposals involved limitations on non-economic loss, standards for punitive damages, changes in the definition of design defect, the government standards and state of the art defense, and more.
For the last seven years, while the above topics remain in play, focus has broadened to include fundamental procedural mechanisms that affect, enhance, or limit access to courts. In addition, there has been an undeniable push to move tort cases away from state courts and into federal court. Broadly speaking, those fighting for these changes contend that tort law, as currently practiced, produces uncertain and unfair results.
Those opposing these changes assert that injured people are entitled to access to justice in their own states, before judges from their own states, with basic decisions made by a jury of their peers at a local level, i.e., federalism. Broadly, they assert that this is a struggle to preserve the rights of injured consumers to a fair and just legal system. What is at risk, they contend, is a level playing field where damages imposed on those who produce dangerous products or provide inappropriate professional services are sufficient to make whole those harmed and deter others from similar misconduct.
Both positions have multiple glimmers of legitimacy, a fact that seems obvious to all except those involved in the fight.
Through commentary, essays on both sides of the battle, articles, interest group papers, and cases, this text is designed to help students comprehend this 40-year struggle. Does the tort system yield inefficient and counter-productive results (e.g., a less competitive market and higher prices), or is it that prized legal regime its supporters contend, preserving fragile rights of injured consumers?
Friday, July 21, 2017
Kyle Graham and I have posted to SSRN The Prosser Letters: Scholar as Dean. The abstract provides:
Examining a previously unexplored trove of letters, this article sheds new light on the thinking and work of William L. Prosser, the past century’s leading torts scholar. In these letters to family written while dean of the University of California, Berkeley School of Law, Prosser candidly describes his approach to scholarship; the development of his casebook, the second edition of Prosser on Torts, and some of his most well-known and influential articles. Moreover, Prosser provides his often-cynical impressions of the legal process; his views of his peers at Berkeley and at other institutions; and his work as dean. The letters also demonstrate some of Prosser’s limitations, including his craving for attention, a sometimes petty personality, and racial and ethnic biases. In all, the letters capture a scholar at the zenith of professional accomplishment in his field, who nevertheless showed signs of the insecurity that would later trigger his resignation from the Berkeley deanship and retreat from the forefront of torts scholarship.
Thursday, July 20, 2017
Jill Lens has posted two pieces to SSRN. First, An Undetectable Constitutional Violation; the abstract provides;
In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.
Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin to try to apply Philip Morris’s reprehensibility-punishment distinction. The Article then both criticizes the protection most lower courts have used—vague limiting instructions—and suggests alternative protections. A new rule governing the admissibility of nonparty harm should be used because of the constitutional implications of the admission of the evidence. Courts should also include explanations within their limiting instructions and aggressively review awards for possible Philip Morris violations despite the use of limiting instructions.
Second, Justice Thomas, Civil Asset Forfeitures, and Punitive Damages; the abstract provides:
For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.
This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction.
The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.
Wednesday, July 19, 2017
Monday, July 17, 2017
Citing a story at Law.com, Byron Stier at Mass Tort Profs notes that Judge Jack Weinstein of the Eastern District of New York has been on the bench for over 50 years. Among other contributions, Judge Weinstein is known for his opinions in mass tort cases.
Wednesday, July 12, 2017
There is more data that med mal payouts continue to decline, this time from South Dakota. Payouts in South Dakota for 2016 amounted to $1.8M statewide (for 12 cases), less than half the amount of payouts from 2015. With the small number of cases, such a one-year decline might not mean a lot. Payouts, however, continue a declining trend dating to 1992. The Sioux Falls Argus Leader has details.
Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
Hotel rooms are now available for pre-booking. The conference hotel is the Holiday Inn Conference Center in Carbondale. To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL. SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events. Other hotel options (without shuttle service) are listed on our website. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
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Tuesday, July 11, 2017