Wednesday, September 14, 2011
The 2012 AALS Annual Meeting Torts & Compensation Section meeting will include a panel on civil recourse theory scheduled for Thursday, January 5th at 9:00 a.m.
Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory
Recently, civil recourse theory has emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers an elegant means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. This panel will explore the implications of paring down tort law to civil recourse. John Goldberg and Benjamin Zipursky, who have been pioneers in developing civil recourse theory, will present the concepts and methods of this theory. Guido Calabresi, the 2010 Prosser Award recipient, will explore the implications of deemphasizing loss-spreading and deterrence. Martha Chamallas will examine civil recourse theory drawing upon her work on how race, gender, and class interrelate with tort law developments. Finally, Christopher Robinette will address the question of whether civil recourse can unify the law focusing on whether it is a complete account. Panelists will also address whether tort law should have a public purpose beyond civil recourse.
Greg Keating (USC) has posted The Priority of Respect Over Repair to SSRN. The abstract provides:
Contemporary tort theory is dominated by a debate between legal economists and corrective justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest-cost-avoiders and avoidable future losses. Rational actors recognize that the past is beyond their control. They ignore sunk costs – the consequences of past wrongs – and focus on influencing the future. Holding people accountable for having inflicted past harm makes sense only as a way of creating the proper incentives to avoid future harm. The right people to hold responsible for past harm, therefore, are not those whose wrongs are responsible for that harm, but those who are in the best position to avoid future harm efficiently. Properly understood, then, tort is about providing the proper incentives to minimize the combined costs of paying for and preventing future accidents. Tortfeasors responsible for past wrongs are false targets for cheapest cost-avoiders going forward.
Corrective justice theorists have argued powerfully that this economic account does not capture the most fundamental fact about tort adjudication, namely, that the reason why we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm that they have done. You can no more recover from someone in tort by showing only that they are the cheapest cost-avoider with respect to a class of future wrongful losses than you can convict someone of a crime by showing only that their conviction will deter future crime. People are liable in tort when and because they commit tortious wrongs just as they are punishable for crimes when and because they commit those crimes. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability in tort than deterring future crime justifies hanging the innocent.
This is a powerful critique of the economic theory of tort, but it overshoots the mark. As an account of tort law, corrective justice puts the cart before the horse. To be sure, reparation looms large in tort. Rights require remedies, and reparation for harm wrongly done is the most common tort remedy. Yet in tort law itself, remedial responsibilities arise out of failures to discharge antecedent responsibilities not to inflict injury in the first instance. Tort is a law of wrongs, not just a law of redress for wrongs. In the first instance, it enjoins respect for people’s rights. Remedial responsibilities in tort are thus subordinate, not fundamental. By itself, the principle that wrongful losses should be repaired is incomplete; its application presupposes an antecedent account of wrongs. Logically and normatively, obligations of repair are dependent on primary obligations. Logically, remedial responsibilities are conditioned on and arise out of failures to discharge primary ones. Normatively, primary responsibilities provide the reason for honoring remedial responsibilities and largely determine the shape of remedial responsibilities. Breaching primary responsibilities leaves those responsibilities undischarged, and puts the breaching party in a position where it is no longer able to discharge its primary responsibilities in the best way possible. Remedial responsibility is thus grounded in the failure to comply with primary responsibility. Repairing harm wrongly done is the next best way of complying with an obligation not to do harm wrongly in the first place. Rights and remedies form a unity in which rights have priority. Corrective justice is thus an essential, but subordinate, aspect of tort.
The Priority of Right over Repair develops this line of criticism of corrective justice theory in detail, and offers an alternative account of tort which places primary norms of harm avoidance and respect for rights at its center. On this conception, tort is – as the corrective justice theorists rightly insist – a law of wrongs, but its distinctiveness lies in the content and character of the wrongs with which it is concerned. At its core, tort is concerned with establishing the autonomy and security of persons in civil society with respect to one another.
Tuesday, September 13, 2011
Alan Miller & Ronen Perry (Haifa) have posted to SSRN The Reasonable Person. The abstract provides:
The Article sets forth a conclusive and unprecedented answer to one of the most fundamental questions in tort law, which has bedeviled and divided courts and scholars for centuries: should reasonableness be a normative or a positive notion? Put differently, should the reasonable person be defined in accordance with a particular normative ethical commitment, be it welfare-maximization, equal freedom, ethic of care, etc., or in accordance with an empirically observed practice or perception? Only after answering this question can one move on to selecting a concrete definition of reasonableness. Our own answer is radical but inescapable: only normative definitions are logically acceptable.
The Article does not endorse a particular definition of reasonableness. Instead, it focuses on the fundamental choice between the two conflicting paradigms. We put forward and defend the thesis that normative definitions are categorically preferable to positive definitions, because the latter are logically unacceptable, whereas the former merely raise partially surmountable practical problems. Although the Article focuses on the reasonable person in torts, the implications of our analysis are far-reaching, because the concept of reasonableness prevails in most areas of American law.
Part I presents the most salient normative definitions of the reasonable person, namely those that stem from the ideas of welfare maximization, equal freedom, and the feminist ethic of care. It explains their practical weaknesses, and shows that these weaknesses surface mostly at the margins, and can be alleviated to some extent. In contrast, Part II shows that a positive definition of reasonableness is a logical impossibility. We do not study any specific positive definition but construct a formal model of the reasonable person that allows us to study all such definitions simultaneously. The formal model is built with tools from a branch of economics known as social choice theory, and is analogous to the groundbreaking theorem for which Kenneth Arrow was awarded the Nobel Prize in 1972. We impose five axioms on the reasonable person; all of them are necessary characteristics of any positive definition. We then prove that a positive definition cannot possibly satisfy all five. Consequently, any empirical methodology used to study the reasonable person is necessarily invalid.
(Via Solum/Legal Theory Blog)
Monday, September 12, 2011
Jeremy Grabill (Weil Gotshal) has posted "Judicial Review of Private Mass Tort Settlements" to SSRN. The abstract provides:
In the mass tort context, class action settlements have largely given way to a unique form of non-class aggregate settlements that this Article refers to as “private mass tort settlements.” Although it has been argued that aggregation in tort law is “inevitable,” the legal profession has struggled for many years to find an effective aggregate settlement mechanism for mass tort litigation that does not run afoul of the “historic tradition” that everyone should have their own day in court, assuming they want it. Over the last decade, however, as a result of the evolution of non-class aggregate settlements, a new opt-in paradigm for mass tort settlements has emerged that is true to that historic tradition. This Article discusses the new opt-in paradigm and the appropriate contours of judicial authority vis-à-vis private mass tort settlements.
Private mass tort settlements present a difficult conundrum for presiding judges. On one hand, mass tort litigation requires active judicial involvement and oversight due to the sheer size and complexity of such matters. Thus, having been intimately involved in the litigation from its inception, it understandably seems natural for courts to want to exercise some degree of control over private mass tort settlements. But, on the other hand, like traditional one-on-one settlements and unlike class action settlements and other specific settlements, private mass tort settlements do not impact the rights of absent or unrepresented parties. Perhaps not surprisingly then, courts have struggled in applying established principles concerning the scope of judicial authority to evaluate and oversee the implementation of traditional settlements in the unfamiliar context of private mass tort settlements.
This Article seeks to provide a clear path forward by first examining the limited contexts in which courts have the authority to evaluate and oversee the implementation of traditional settlements, highlighting the nature of the absent or unrepresented interests that judicial review is designed to protect in those traditional contexts. The Article then discusses the emerging opt-in paradigm for mass tort settlements and traces the paradigm’s lineage to three recent cases: In re Baycol Products Liability Litigation, In re Vioxx Products Liability Litigation, and In re World Trade Center Disaster Site Litigation. The Article argues that the well-established maxim that courts lack authority over private one-on-one settlements should apply with equal force to private mass tort settlements because these non-class aggregate settlements allow each individual plaintiff to decide whether or not to settle on the terms offered and do not impact the rights of absent or unrepresented parties. In short, courts do not have - and do not need - the authority to review private mass tort settlements. The Article concludes by addressing the arguments that have been advanced to support judicial review of non-class aggregate settlements, debunking the “quasi-class action” theory that some courts have relied upon to regulate attorneys’ fees in connection with mass tort settlements, and discussing the various ways in which courts may nevertheless be able to influence private mass tort settlements.
Sunday, September 11, 2011