Saturday, December 26, 2009
Eric Claeys (George Mason) has posted to SSRN The Right to Exclude in the Shadow of the Cathedral: A Response to Parchomovsky and Stein. Here is the abstract:
This response comments on “Reconceptualizing Trespass,” by Gideon Parchomovsky and Alex Stein. Using economic analysis associated with Calabresi and Melamed’s property/liability rule scheme, Parchomovsky and Stein propose a new measure of damages, called “propertized compensation.” Propertized compensation makes ex post damage awards in trespass cases approximate the property-rule incentives the law imposes on trespassers ex ante when their trespasses are ongoing and may be remedied by injunction.
This comment is strongly sympathetic to Parchomovsky and Stein’s prescriptions for propertized compensation, but skeptical about the law and economic methodology by which Parchomovsky and Stein arrive at those prescriptions. The comment recounts, at a level aimed toward readers without specialized interest or training in legal philosophy, three areas of relevant scholarship by corrective justice theorists and conceptual property philosophers. These philosophical authorities explain propertized compensation at least as well as economic analysis, using conceptual and practical moral reasoning already internal to the law. Several of these authorities also suggest that the problems “Reconceptualizing Trespass” criticizes in previous economic scholarship are symptoms of a more fundamental incoherence in the concepts of a “liability rule” over a “right to exclude.”
“Reconceptualizing Trespass” deserves credit for explaining the conceptual problems inherent in the property/liability rule scheme to law and economists in terms law and economists can follow. But this contribution would not have been necessary if law and economists took conceptual philosophy more seriously.
Thursday, December 24, 2009
Wednesday, December 23, 2009
David Bernstein (George Mason) has posted to SSRN Getting to Causation in Toxic Tort Cases. Here is the abstract:
Since the issue first arose in earnest in the 1970s, courts have struggled to create rules for causation in toxic tort cases that are both consistent with longstanding tort principles and fair to all parties. Faced with conflicting and often novel expert testimony, scientific uncertainty, the gap between legal and scientific culture, and unprecedented claims for massive damages, common-law courts needed time to adjust and accommodate themselves to the brave new world of toxic tort litigation. Eventually, however, courts around the country reached a broad consensus on what is required for a toxic tort plaintiff to meet his or her burden of proof.
While there is a voluminous scholarly literature on various aspects of toxic tort litigation, this Article's unique contribution is to articulate the new consensus on causation standards, document and criticize the various ways plaintiffs attempt to evade these standards, and defend the courts' adherence to traditional notions of causation against their critics.
Part I of this Article explains that to prove causation in a toxic tort case, a plaintiff must show that the substance in question is capable, in general, of causing the injury alleged, and also that exposure to the substance more likely than not caused his injury. When a plaintiff was exposed to a single toxin from multiple sources, to prove causation by a specific defendant the plaintiff must show that the actions of that defendant were a “substantial factor” in causing the alleged harm.
Part II discusses plaintiffs' attempts to evade these standards by hiring experts to present various types of unreliable causation evidence. Examples of such evidence include testimony based on high-dose animal studies, anecdotal case reports, analogizing from the known effects of “similar” chemicals, preliminary epidemiological studies that have not been peer-reviewed, and differential etiologies used to “rule in” an otherwise unknown causal relationship. Additionally, when multiple defendants have contributed to the plaintiffs' exposure to a potentially toxic substance, plaintiffs often present experts who claim, with no reliable scientific grounding, that the level of exposure (“dose”) is irrelevant to causation.
Part III of this Article argues that courts should be steadfast in requiring toxic tort plaintiffs to meet their burden of proof. Traditional tort principles require that plaintiffs bear the burden of proving actual causation by a preponderance of the evidence, not merely that they were exposed to a risk. To hold otherwise and essentially shift the burden to defendants to disprove causation would open the floodgates to all manner of speculative claims, with potentially devastating consequences for Americans' well-being. Similarly, with regard to cases in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a given defendant may only be held liable if the plaintiff proves by a preponderance of the evidence that exposure to that defendant's products was a “substantial factor” in causing that injury. To hold otherwise would amount to an implicit adoption of a system of broad, collective liability that courts have rejected when the issue has been raised explicitly. This section concludes by discussing the negative consequences that arise from speculative toxic tort litigation unsupported by reliable scientific evidence.
Tuesday, December 22, 2009
On the Friday of the AALS Conference, at least one of the "Hot Topics" sessions will be of interest to torts profs:
10:30 am-12:15 pm
Napoleon Ballroom, 3rd floor, Hilton New Orleans Riverside
The Katrina Litigation: On the Front Edge of Civil, Constitutional and Environmental Law
Oliver A. Houck, Tulane University School of Law
Joseph M. Bruno, Jr., Esquire, The Law Offices of Bruno & Bruno, New Orleans, Louisiana
William Burns, Senior Fellow for International Law, Santa Clara University School of Law
Carlos A. Zelaya, II, Esquire, F. Gerald Maples, P.A., New Orleans, Louisiana
This session focuses on three recent precedent-setting cases arising from Hurricane Katrina in New Orleans and the Gulf Coast Region. Each carries significant implications for tort, constitutional and environmental law. The first, In Re. Katrina Canal Breaches Consolidated Litigation (Robinson), 647 F. Supp. 2d 644 (E.D. La. 2009), holds the Army Corps of Engineers liable for negligence under the Federal Tort Claims Act for damages from the Mississippi River Gulf Outlet project, swamped by Katrina, on the basis of, inter alia, violations of the National Environmental Policy Act. The second, St. Bernard Parish v United States, 88 Fed. Cl. 528 (Fed. Cl. 2009), alleges Katrina damages from the same project as takings requiring compensation under the Fifth Amendment of the Constitution. The last is Comer v Murphy Oil, 583 F 3d 885 (5th Cir. 2009), en banc pet'n pending, finds a cause of action against oil companies for their contribution to climate change, leading to Katrina damages along the Mississippi Gulf Coast. Each of these theories has obvious legal, economic and political consequences.
We really enjoyed hosting our Fall 2009 guest bloggers. Our guests explored a wide array of topics:
- Jeffrey O'Connell on "Tort Liability as Social Insurance"
- Keith Hylton on "Is Tort Law Economically Efficient?"
- Tony Sebok on "Health Insurance Reform, Tort Reform and ERISA" - Part I and Part II
- Mike Rustad on "Unstuffing the Dog: Training Better Attorneys by Introducing Real-World Concerns in the Teaching of Torts" and his response to Ted Frank
- Jonathan Cardi on "Does Tort Law Really Deter?"
- Frank Vandall on "Justice Rewritten"
- John Oberdiek on "Corrective Justice and its Independence as an Ideal"
- Martha Chamallas on "Critical Torts Theory and the Measure of Injury"
- Victor Schwartz on "A Government Appointed Independent Commission on Judicial Reform Is Considering Establishing a Right of Appeal in West Virginia: It Should Be Done"
- Adam Scales on "Tort Law and Climate Change"
- John Goldberg on "What's Wrong With Torts?" - Part I and Part II
- Tim Lytton on "Is the Tort System a Litigation Lottery?"
- Ben Zipursky on "The Differential Treatment of Medical Devices and Drugs in Preemption Doctrine: A Justified Distinction?" and his Reply to Drug and Device Law Blog.
- Jason Solomon on "Thanksgiving, Football and Torts"
Thanks to everyone who participated this fall. Guest Blogger Monday will return in January.
- Sheila & Chris
Congressional Research Service, the Library of Congress department devoted to providing research and analysis on legislative issues to Congress, has issued a report analyzing the two health care reform bills: "A Comparative Analysis of Private Health Insurance Provisions of H.R. 3962 and S.Amdt. 2786 to H.R. 3590." (pdf).
The Executive Summary provides in part:
. . . . This report compares the private health insurance provisions of H.R. 3962 and the Senate Amendment. Individuals currently receiving health insurance through a large employer would likely see the least direct impact from the bills. The largest changes would occur in the private health insurance market for small businesses and for nongroup coverage (currently, insurance obtained directly from an insurance company, broker or agent). The most substantial of these reforms would not take effect until 2013 under H.R. 3962, and in 2014 under the Senate Amendment. At full implementation, the required private health insurance market reforms should be fully in place, along with subsidies to certain low- and moderate-income individuals ineligible for Medicaid. At full implementation, the bills would require most individuals to obtain and, in the House bill, for larger employers to offer and contribute toward health insurance. Although the Senate Amendment does not have an explicit "employer mandate," employers who do not offer coverage could face substantial penalties. . . .
Monday, December 21, 2009
Mary J. Davis (Kentucky) has posted to SSRN The 'New' Presumption Against Preemption. Here is the abstract:
Is there or isn’t there a “presumption against preemption?” The Supreme Court continues to mention it, but then does, or doesn’t, apply it in a way that helps us understand what it is. This Essay explores the Court’s preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a “new” presumption in the sense that it is borne of the Court’s active preemption docket in the last two decades which has more narrowly defined both express and implied preemption analysis. The “new” presumption is stronger in express preemption cases, operating as a true default rule in the absence of clear and manifest congressional intent to preempt, but is less rigid, or, in other words, more forgiving in implied preemption cases, giving breathing room to the definition of actual conflict while maintaining focus on congressional objectives.