September 3, 2010
Rapp on "Defense Against Outrage and the Perils of Parasitic Torts"
Geoffrey Rapp (Toledo) has posted to SSRN Defense Against Outrage and the Perils of Parasitic Torts. The abstract provides:
In Snyder v. Phelps, the Supreme Court will soon weigh whether protestors at a slain soldier’s funeral committed the tort of Intentional Infliction of Emotional Distress (IIED) or engaged in protected speech. Imagine that Mr. Snyder, the IIED plaintiff and soldier’s father, had, rather than bring a tort claim, used physical force to defend himself from the arguably tortious conduct of Phelps and his crowd. Can force be used to defend against intentional extreme or outrageous conduct threatening a person with severe emotional distress? The answer in the case law and articulated doctrine appears to be “no.”
Two prominent narratives in tort law scholarship address the increasing recognition of claims for loss of emotional tranquility and the expanding privilege to use force in defense of self and others. This Article explores a puzzle in tort law that challenges these traditional accounts. The law permits the use of force to protect dignitary interests, in the case of offensive battery and assault, but seems to deny the use of force to protect against IIED. No basis for this distinction appears in the leading theoretical accounts of tort law – economics, corrective justice, and civil recourse theory. Rather, the basis of the rule seems to be the childhood maxim, “Sticks and stones…,” without strong theoretical or policy justification.
Two implications arise. First, the law continues to privilege physical security above emotional well-being. Second, although it is arguably the most successful “new” tort of the twentieth century, IIED remains a tort whose boundaries are murky and whose place in tort doctrine is unclear. The parasitic nature of IIED has complicated the effort to build clear doctrine around all but the most essential elements of the claim.
September 2, 2010
Hylton on Necessity
Keith Hylton (Boston University) has posted to SSRN The Economics of Necessity. The abstract provides:
The necessity doctrine aligns the private and the social incentive for a property possessor to take a defensive action that prevents an invasion of his property from occurring. The model described here is also applicable to self-help in contracts.
September 1, 2010
Medical Malpractice and Compensation in Global PerspectiveA major international conference, Medical Malpractice and Compensation in Global Perspective, will take place in Vienna, Austria, on 3-4 December this year. The conference will feature presentations by experts on the situation in 14 different countries or regions from every continent except Antarctica, describing and critically analyzing
- The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, social and private insurance, and the relationships among these various systems.
- The details of the applicable liability and compensation systems.
- Available empirical data on medical errors and adverse events, the operation of the systems designed to prevent and/or redress such errors and events, and the prevalence and impact of measures designed to reduce medical errors and adverse events, improve system performance or reduce system costs.
- Attitudes and concerns about the liability and compensation systems.
The conference is being organized by Richard Wright on behalf of the Chicago-Kent Law Review and Ken Oliphant on behalf of the Austrian Academy of Science’s Institute for European Tort Law in collaboration with the European Centre of Tort and Insurance Law. The papers from the conference, together with a comparative overview, will be published by the Chicago-Kent Law Review and by deGruyter as a title in the Institute’s Tort and Insurance Law series (jointly edited by the Centre).
Registration for the conference is now open, and the flyer is available here: Download MMCGP Flyer-email Vienna’s famous Christmas Markets will be in full operation!
August 31, 2010
$11 Million Defamation Judgment Against Gossip Blog
Last week, a federal judge ordered a gossip blog to pay a Cincinnati Bengals cheerleader $11 million for libel and defamation:
U.S. District Court Judge William O. Bertelsman on Wednesday ordered Los Angeles-based Dirty World Entertainment Recordings — which the complaint and judgment said operates TheDirt.com — to pay $1 million in compensatory damages and $10 million in punitive damages for failing to respond to the suit.
Politico, however, reports that the plaintiff may have sued the wrong holding company for the blog.
More from Legal Blog Watch.
Thanks to Lisa Smith-Butler for the alert.
August 30, 2010
Guest Blogger Tom Baker: "Liability and Insurance: New Developments"
I’d like to use the opportunity to alert torts profs to the new American Law Institute Principles of Liability Insurance project and my forthcoming book with Sean Griffith, Ensuring Corporate Misconduct: How Liability Insurance Undermines Shareholder Litigation (U. Chicago Press 2010). Both projects grow out of my long term participation in insurance as governance research.
The ALI project is predicated on a jurisprudential and sociological claim. In jurisprudential terms, liability insurance is an important meeting place between tort and contract, legal fields in which the ALI has a long tradition of involvement. Within the area of insurance, liability insurance is uniquely intertwined with the law: the law (mostly, though not only, tort law) defines the underlying liabilities that the insurance is designed to cover, and the existence and nature of liability insurance coverage has had and will continue to have a major impact on the development of those liabilities.
As a sociological reality, the presence or absence of liability insurance can affect whether a particular liability action is brought in the first place, and against whom. Judges and legislatures develop liability rules with an understanding, whether implicit or explicit, that insurance may be available to cover the resulting liabilities. In light of this close relationship between liability insurance and the real world of liability, particularly tort liability, the law of liability insurance was a natural choice for an ALI law-improvement project.
While the ALI project will surely evolve, our current plan is to have three chapters. The first will address a variety of contract doctrines in the liability insurance context. The second will address the definition of the range of liabilities covered by various forms of liability insurance. The third will address the management of the liabilities, including such topics as the duty to defend, the duty to settle, and the duty to cooperate.
Ensuring Corporate Misconduct contributes to our understanding of the sociological claim underlying the ALI project. Beginning with Ross’s magnificent Settled Out of Court, sociolegal researchers have explored the practical connection between liability and insurance almost exclusively in relation to personal injury and almost exclusively in relation to claims brought against individual defendants. In this project, Sean and I went into the field to explore the relationship between liability and insurance in a very different context: shareholders’ claims against large corporations.
Despite the name, D&O insurance is largely corporate asset protection insurance, not directors’ and officers’ protection insurance. Corporate indemnification agreements provide the main protection for directors and officers. D&O insurance indemnifies the corporation for its indemnification obligations to directors and officers and, in the case of securities claims, for the corporation’s own liabilities as well. D&O insurance protects directors and officers only when the corporation cannot, most significantly in the case of insolvency or derivative actions for which corporate indemnification is prohibited by state corporate law.
The narrative of the book follows our efforts to evaluate the impact of Directors and Officers Insurance on the deterrence effect of shareholder litigation. We explore D&O insurance pricing and underwriting process as part of the deterrence process. We evaluate D&O insurers’ efforts to control the moral hazard of their insurance products. We describe the insurers’ role in the litigation and settlement context. And we explore whether D&O insurance coverage defenses and related coverage litigation preserves the deterrence function of shareholder litigation.
The title gives away our bottom line. We conclude that D&O insurance undermines the deterrence role of shareholder litigation. D&O insurers manage the moral hazard of their insurance products by pricing to reflect the moral hazard, with the result that D&O insurance likely facilitates corporate misconduct. All is not lost, however. Mandatory disclosure of the terms of D&O insurance contracts and of the amount of D&O insurance payments for the defense of settlement of each shareholder claim would allow D&O insurance to further, rather than undermine, the deterrence impact of shareholder litigation, magnifying the deterrence signals of D&O insurance underwriting and coverage decisions by transmitting those signals through the securities markets.
Deputy Dean and William Maul Measey Professor of Law and Health Sciences