March 12, 2011
Rustad on Civil Recourse Theory
Mike Rustad (Suffolk) has posted to SSRN Torts as Public Wrongs from last spring's Pepperdine symposium. The abstract provides:
This Article is a rejoinder to the civil recourse theorist's claim that tort law will be better served by retreating to the philosopher's prefecture of private wrongs. A subsidiary goal of this Article is to refute John Goldberg's claim that my sociologically-inspired theory of torts as public wrongs serves the interests of tort reformers rather than American consumers. In a nutshell, civil recourse theory is "tort reform in disguise," not the concept of torts as fulfilling wide-ranging purposes such as the social control of corporations. If judges adopt civil recourse theory, they will be less inclined to recognize new causes of action and plaintiff classes deferring instead to legislatures. Tort law is the multi-tasker of the common law and does far more than redress private wrongs.
Tort law not only redresses private wrongs, it also advances general deterrence through social control. The contemporary Toyota sudden acceleration claims and the BP oil spill are examples of how tort law tackles collective injuries impacting the consuming public, the environment, and communities. While it is unclear what role tort law will ultimately play in redressing these collective injury cases, social interests will be relevant. This Article, which makes the case that tort law can and should redress public wrongs, unfolds in six parts. Part II introduces the idea of the teleological telescope and the deontological microscope illustrating their operation in sociological theory.
In this part of the Article, I explain how the grand theories of classical sociology were telescopic, but some modern theorists miniaturized their perspective to focus on the individual and the small group. Part III describes how modern tort theory has divided into competing camps based upon whether legal academics use a macroscopic or a microscopic approach. The basic distinction is that tort scholars use either a functional telescope (to study public wrongs) contextually or the philosopher's microscope to understand individual cases and controversies in an abstract way. The division between macrotort and microtort theories is the functional equivalent of how these approaches play out in classical and contemporary sociological theory. Torts have a micro aspect applicable to the pressing facts of the individual case and the relationships between the parties, but they also have macro features such as general deterrence and social control that fill in the interstices between criminal and civil law and resonate our collective beliefs.
Part IV comments on civil recourse theory's obscurantism and its lack of fit with the empirical reality of modern tort law's complexity. In this part of the Article, I discuss the civil recourse theorist's misguided attempt to reduce the multiplicity of American tort law to one single "true" quintessence. To me, it seems that the main problem with this pure theory of tort law is its separation from social context such as gender, race, social class, power, and social change. What is important to note here is that torts often redress public wrongs, beyond the interests of the immediate parties.
Part V gives my pluralistic account of torts as public wrongs. While the manifest function of tort law is civil recourse or compensation, its latent function is vindicating public wrongs. The latent function - the hidden face - of tort law is its public policy role addressing corporate misconduct from the bottom up rather than through a top-down government monolith. The key institution is the plaintiff in the role of private attorney general who seeks civil recourse but also fulfills a broader purpose of identifying and punishing reckless corporate defendants who had previously evaded the attention of the public authorities.
Part VI applies my sociological theory of public wrongs to the widespread problems created by dangerously defective software. The tort law lag in addressing defective software demonstrates the need to permit tort law to evolve to address social problems. Hence, the focus is how "we the people" need brawny tort remedies to address social problems in the information-based economy.
March 10, 2011
Personal Injury Roundup No. 96 (3/11/11)
I know it's lean, but it's the week of spring break...
- NY: $2,500 pain-and-suffering verdict for neck pain from electric shock at Pizza Hut affirmed on appeal. (Hochfelder/New York Injury Cases Blog)
- LA: Appellate court reinstates SJ against injured teen who rode oil pump. (Olson/Overlawyered)
Reform, Legislation, Policy
- Kip Viscusi on "Does Product Liability Make Us Safer?" (SSRN)
- Texas considers banning texting while driving. (Perlmutter & Schuelke)
Trials, Settlements and Other Ends
- Royals not liable for wayward frankfurter. (ABA Journal)
- Verdict statistics on severe leg injuries (Miller/Maryland Injury Lawyer Blog)
- Congratulations to our own Bill Childs and his team from Western New England. The team reached the quarterfinals, and won best brief (petitioner) and best oralist at Rendigs.
Skiing in the U.S. and Switzerland
Forbes (via Overlawyered) has a post up exploring why there might be fewer tort suits in Switzerland than in the U.S., despite the former having some pretty intense ski and other winter sports facilities.
A query, though: Is it clearly true that there are more winter sports-related lawsuits in the U.S.? I know that at least Colorado and some other major ski states have statutory no-duty rules as to many (statutorily-defined) inherent risks (a survey is here). Those defined inherent risks would seem to include the tree trunks, exposed banks, and other hazards that are described as "whizzing by" in the Forbes piece. With some exceptions, those rules should eliminate at least some cases from being filed at all, and get more dismissed at the 12(b)(6) stage.
Certainly the differences between Swiss and U.S. systems are relevant and interesting, and seem likely to result in less litigation, but the whole piece, and the title of the Overlawyered piece, seem to assume a fact that isn't self-evident (or supported in the post) -- that there is materially more tort litigation against snow sport entities in the U.S. than in Switzerland. State legislators appear cognizant of tort risks against ski areas and to have at least provided some protection.
Future of Mass Torts
An interesting debate at the U Penn Law Review online companion site.
March 9, 2011
Call for Papers
The Sixth Biennial Conference on the Law of Obligations (“Obligations VI”) will be hosted by Western Law on July 18-20, 2012 (in 16 months’ time) in London, Ontario.
The theme of the conference is 'Challenging Orthodoxy’. Scholars working in the fields of
contract, tort, unjust enrichment, equity or private law theory are invited to submit proposals for papers addressing the conference theme. The theme is intended to encourage scholars to question some of the common law’s established rules and approaches and to propose novel solutions to old problems.
Presenters whose offers of papers are accepted will be expected to meet their own travel and accommodation costs. The conference will be held at the world-class Ivey Spencer Leadership Centre and rooms will be available at a rate of $125 a night plus taxes.
If you would like to offer a paper, please submit a working title and an abstract (of no more than 350 words) by email to Jason Neyers (firstname.lastname@example.org) before May 13, 2011. Papers will be selected on the basis of engagement with the conference theme and fit with other papers being presented at the conference, as well as on the basis of quality and originality.
Junior scholars and those currently engaged in graduate degrees in law are encouraged to apply.
More information is available at: http://www.law.uwo.ca/TortLaw/ObligationsVI.html.
Jason Neyers, Stephen Pitel & Erika Chamberlain
March 8, 2011
Wriggins on the Unjustified Preference Given to Auto Injuries
Jenny Wriggins (Maine) has posted to SSRN Automobile Injuries as Injuries with Remedies: Driving, Insurance, Torts, and Changing the "Choice Architecture" of Auto Insurance Pricing. The abstract provides:
Tort and insurance law treat driving as a centrally important activity and treat injuries caused by automobiles as more significant than other injuries. The role of tort and insurance law in privileging injuries from driving, and driving itself, is largely unacknowledged in torts and insurance law scholarship. The Article shows how the negligence regime and automobile insurance regulation together function to actively support driving. They create a most-favored injury status for injuries caused by cars. The interlocking tort liability regime and automobile insurance system create a “choice architecture,” to use Cass Sunstein’s and Richard Thaler’s phrase, that favors and encourages driving.
While the hierarchy of injury and encouragement of car use were understandable decades ago, they are unjustifiable today. Given the negative public health, sprawl, environmental, and other consequences of driving, and the importance of insurance to driving, it is time to consider ways that the choice architecture of tort and insurance law could be shifted to discourage driving. Two automobile insurance reforms are ideal candidates: The first is to make the ongoing costs of auto insurance visible to people as they drive, instead of making those costs practically invisible as the current payment structure does. A second way is to encourage usage-based, also known as pay-as-you-drive programs, on a widespread basis. These two steps are likely to reduce the amount of driving, with many positive consequences.
Sharkey on Recent Preemption Cases