Thursday, August 30, 2012
Don Gifford (Maryland), Joseph Kroart, Brian Jones (Villanova-Sociology), and Cheryl Cortemeglia have posted to SSRN What's on First? Organizing the Casebook and Molding the Mind. The abstract provides:
This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all three groups of students shifted toward a belief that judges consider social, economic, and ideological factors, the degree of the shift differed in a statistically significant way depending on which torts their professors taught first. These differences persisted throughout the semester, even after they studied other torts. Further, these differences were observed even when the analysis controlled for law school ranking and were more pronounced among students attending the highest ranked schools.
In interpreting the survey results, the authors employ sociologist Erving Goffman’s theory of “frame analysis” and the work of cognitive psychologists including Amos Tversky and Daniel Kahneman on “anchoring.” The Article concludes that the category of tort liability to which students are first exposed affects the “frame” or “lens” through which they view the judicial process. This frame becomes anchored and persists throughout the study of other tort categories. The lessons about the nature of the judging process learned implicitly through the professor’s choice of topic sequence may be even more important than the substantive topics themselves.
Wednesday, August 29, 2012
Nora Freeman Engstrom (Stanford) has posted her contribution to the Festschrift for Robert Rabin, An Alternative Explanation for No-Fault's 'Demise'. The abstract provides:
In the space of one decade, automobile no-fault legislation — the second most ambitious alternative compensation scheme ever enacted in the United States — went from being widely viewed as “inevitable” to having, it is said, met its sad “demise.” Using a broad mix of primary source material, including voluminous congressional testimony and thousands of contemporaneous press and journal accounts, this Article excavates the history of the American no-fault experiment. With the benefit of this previously untapped material, the Article enriches — and in places, complicates — conventional explanations for why no-fault fizzled. It then situates the no-fault experience within a larger socio-legal framework and, in so doing, raises provocative questions about no-fault’s legacy. Then it finally, and more broadly, steps back to view the no-fault experiment not in isolation but as an exemplar of what may be a larger story about tort’s durability and the evolution, and ultimate convergence, of even very different legal regimes over time.
Tuesday, August 28, 2012
John Goldberg & Ben Zipursky's contribution to the Festschrift for Robert Rabin is Convergence and Contrast in Torts Scholarship: An Essay in Honor of Robert Rabin. The abstract provides:
This contribution to a festschrift honoring Professor Robert Rabin examines overlap and divergence between his approach to Torts and our own civil recourse theory. We first flesh out Rabin’s approach by identifying three antinomies that serve as organizing themes in his work – individualized v. bureaucratic compensation; the fault principle v. enterprise liability; and Realism v. Formalism. We then provide an in-depth analysis of Seffert v. Los Angeles Transit Lines, a decision that Rabin and his casebook co-author Marc Franklin helped make famous among torts scholars. Seffert illustrates both the power and the limitations of law-and-society methodology as applied to tort law. It also demonstrates the capacity of civil recourse theory to capture dimensions of tort law that are obscured by other approaches, and to elucidate contemporary issues in tort reform, such as the propriety of limits on pain and suffering damages.
Last time I checked the top 10 recent torts and products liability e-journal downloads, John and Ben, separately or together, accounted for half of them.
Monday, August 27, 2012
Stanford's Law & Biosciences Blog has an interesting story discussing genomic forensics - sequencing a strain of bacteria - and tort litigation against hospitals and medical care providers for hospital acquired infections.
Sunday, August 26, 2012
Papers from DePaul's Clifford Symposium are becoming available on SSRN. This year's was devoted to the scholarship of Robert Rabin, and it is only fitting that the first paper presented be from Rabin himself. His contribution was Reflections on Tort and the Administrative State. The abstract provides:
This essay is my contribution to a festschrift dedicated to my scholarship on tort and the administrative state. The essay aims at identifying the central themes in my work and providing supporting commentary. I mark off for discussion three discrete areas that identify pathways to which I have returned repeatedly, although not chronologically, to explore different features of the landscape.
I begin with historical perspectives on the evolution of tort and the administrative state — essays in which I have been animated by an effort to better understand the underpinnings of common law doctrine and regulatory reform in earlier eras and to explore how those norms came to be transformed over time. As a second identifiable area, I turn to scholarship in which I have analyzed the comparative institutional efficacy of tort and regulation. Some of this writing has been aimed at exploring the regulatory limits that have been imposed (or proposed) on tort; in particular, through defense claims of regulatory compliance and tort preemption. Still other scholarly work of mine in this area has focused on the design of tort and administrative compensation/benefit schemes, particularly by examining, on various occasions, the ramifications of legislative no-fault plans. As a third discrete area, I address a set of concerns that thematically cluster in my scholarship: digging beneath the surface of tort doctrine. Here, my work comes from two quite different perspectives, one of which explores the tort system from a process vantage point and the other through a social policy prism. Closely related to this work, in a traditional vein of legal scholarship, I have at times pursued doctrinal analysis as an end in itself.
Both the tort system and the administrative state have grown by leaps and bounds over the past century. Correspondingly, the opportunities for scholarship evaluating these developments, as well as tracing their roots in earlier eras, know virtually no limits. This essay is meant to indicate some of the issues that have struck me as especially worthy of thematic exploration.
Saturday, August 25, 2012
Friday, August 24, 2012
The SAFETY Act was passed in 2002 as part of the legislation creating the Department of Homeland Security. According to the website, the SAFETY Act "provides important legal liability protections for providers of Qualified Anti-Terrorism Technologies – whether they are products or services." In other words, the Act immunizes designated companies from tort liability stemming from a terrorist-related incident. Most companies on the list are technology manufacturers, who obtain civil immunity by meeting a battery of tests and getting Homeland Security's approval.
Now on the list? Yankee Stadium. As reported on NBC News.com, Yankee Stadium has become the first sports facility to earn the Safety Act designation. Thus, the venue is immune from civil liability by any future victims of a terrorist attack. Also on the list? According to NBC: Superbowl venues (generically listed as the NFL).
Wednesday, August 22, 2012
I have posted to SSRN a draft of my article from last January's AALS Torts & Compensation Systems Section panel on John Goldberg & Ben Zipursky's elegant civil recourse theory. Entitled Two Roads Diverge for Civil Recourse Theory, the abstract provides:
John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates a gap between civil recourse theory and the tort law it is supposed to describe. In the trenches, insurers and plaintiffs’ lawyers are concerned about the profitability of their portfolio of cases as a whole. Insurers and many plaintiffs’ lawyers, therefore, routinize the claims system, increasing its administrability and the compensation of claimants, but reducing or eliminating the importance of wrongs in a large portion of cases. Civil recourse theory fails as a descriptive unitary theory of tort law because it does not accurately describe automobile accident claims, constituting a majority of tort claims and three-quarters of tort payments.
The symposium will be published by the Indiana Law Journal in the spring and contain articles from Judges Calabresi and Posner, Martha Chamallas, me, and a detailed introduction from Mike Rustad. John and Ben are in the unenviable position of responding to the 5 papers in 3 weeks!
Eric Voigt (Faulkner) has posted to SSRN A Company's Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to a Class Action. The abstract provides:
Consumer product companies are establishing internal programs where they are voluntarily compensating consumers for damages caused by their products. When a company implements a refund program in response to a threatened or pending class action, may federal courts rely solely on the voluntary refunds in denying class certification? The short answer is yes.
This Article analyzes Rule 23(b)(3) of the Federal Rules of Civil Procedure and the requirement that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." The Article argues that courts must compare the superiority of a class action not only to judicial procedures but also to a company's voluntary refund program. This Article also contends that a court must deny class certification when a reimbursement policy is fair and efficient. These arguments are strongly supported by the Advisory Committee Notes to the 1966 amendment to Rule 23, commentary by two former members of the Committee, the original purpose of the superiority requirement, and courts' and commentators' initial interpretations of the 1966 amendment. Last, the Article discusses what features a refund program must have to be a fair and efficient alternative to a class action.
Surprisingly, no federal court or scholar has analyzed the history or purpose of Rule 23(b)(3) as it applies to voluntary refund programs. Further, the relevancy of a refund program to the denial of class certification has been addressed in only one article (which took an opposing view) and by only a few courts.
Tuesday, August 21, 2012
Jill Wieber Lens (Baylor) has just posted "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages" to SSRN. The abstract provides:
In Exxon Shipping Co. v. Baker, the Supreme Court resolved a common law challenge to a punitive damage award. The freedom of the common law authority allowed the Court to address punitive damages from a policy basis. The Court described its ideal system for imposing the damages, one in which Justice Holmes’s bad man would know the punitive award he will face if he commits tortuous conduct. Its citation to Justice Holmes’s bad man reveals that the Court thinks very little of the damages’ punishment and deterrence common law purposes.
Justice Holmes’s bad man sees civil law only as a requirement to pay damages, and he assumes he will have to pay those damages. Applied to punitive damages, the lack of morality depletes the punishment purpose — the damages lose their basis for imposition, expression of moral condemnation, and resulting stigma. The assumption of guaranteed liability also rejects possible independent substance for the damages’ deterrence purpose by disregarding under-detection and under-enforcement.
The Court’s views on punitive damages have proven influential. Its conceptions of aimless punishment and deterrence in Exxon Shipping Co. make the damages even riper for legislative reform. But even if they survive reform, the depleted purposes are likely insufficient to constitutionally justify an award. Surprisingly, a common-law-based Supreme Court case, as opposed to a constitutionally based one, may be the last nail in the coffin of punitive damages.
Monday, August 20, 2012
In Tawfik v. al Sabah, the Southern District of New York dismissed an Alien Tort Claims Act suit brought by Egyptian nationals against the Emir of Kuwait based on sovereign immunity principles. The court found the State Department's suggestion of immunity controlling.
Thanks to Lee Dunst (Gibson Dunn) for a copy of the decision.
Friday, August 17, 2012
This week, Amaris Elliott-Engel, of PA Law Weekly, wrote the first of a series of articles on tort law. Her first piece is on the uncertainty in Pennsylvania products law. Twice in the last 3 years, the U.S. Court of Appeals for the Third Circuit has opined that the Pennsylvania Supreme Court would adopt the Restatement Third (Products Liability). However, the state Supreme Court has not directly addressed the issue, although there has been some provocative dicta and one instance in which the justices announced they had improvidently granted allocatur to consider whether section 2 of R3 should replace 402A of R2. Thus, in general, state courts are applying 402A and federal courts are applying R3, though even among federal courts, some apply 402A. As elsewhere, most plaintiffs' lawyers tend to prefer 402A and most defense lawyers tend to prefer R3.
Thanks to Scott Cooper for the tip.
Wednesday, August 15, 2012
Tuesday, August 14, 2012
Ben Zipursky (Fordham) has posted to SSRN Substantive Standing, Civil Recourse, and Corrective Justice. The abstract provides:
Substantive standing and relational wrongs are the core legal concepts with which civil recourse theory was commenced fourteen years ago. A plaintiff has substantive standing to bring a tort claim if the wrong committed by the tortfeasor was wrongful in the relevant respects in relation to the plaintiff: if the defendant defrauded the plaintiff (for a fraud claim), breached a duty of care owed to the plaintiff (for a negligence claim), trespassed upon her land (for a trespass claim), and so on. After tracing the development of civil recourse theory and its analytical roots in the ideas of substantive standing and relational wrongs, this article turns to: (A) criticizing corrective justice theory and distinguishing civil recourse theory from corrective justice theory; (B) criticizing retributive or vengeance-based theories of tort law and distinguishing civil recourse theory from such theories; (C) explaining the distinctive moral ideas at the core of civil recourse theory. The article develops the view – extant in positive morality and elaborated by reference to work by contemporary moral philosophers -- that a person who has been morally wronged has a moral right to demand an ameliorative response of the wrongdoer, and depicts this idea as the backward-looking mirror image of a moral right to self-defense. In empowering tort victims with a right of action against tortfeasors, the state is giving legal embodiment to this moral principle. It is recognizing, in a victim of a legal wrong, a right to demand ameliorative conduct of the one who legally wronged him or her. The article concludes by observing that there is a familiar moral notion of standing to demand a response to having been wronged that parallels the legal notions of substantive standing pervasive in the law of torts.
Tuesday, August 7, 2012
On Monday, the United States Court of Appeals for the Ninth Circuit certified three questions to the Washington Supreme Court in a caes "perfect for a first year torts exam." McKown v. Simon Property Group Inc. (pdf) involved a shooting at the Tacoma Mall in 2005. The plaintiff, a store employee at the mall, was injured and sued the mall owner. The Ninth Circuit certified three questions concerning the scope of the mall owner's duty to protect a mall employee from the criminal acts of a third party:
1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?
2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?
3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?
Courthouse News Service has more on the case.
Monday, August 6, 2012
In a decision issued July 31st, the Missouri Supreme Court struck down the state's statutory cap on non-economic damages as violating the Missouri state constitution. Specifically, the court found that the cap violated the right to a trial by jury. A copy of the decision is available here (pdf).
Friday, August 3, 2012
Michael Frakes (Cornell) has posted a new article to SSRN, Does Medical Malpractice Deter? The Impact of Tort Reforms and Malpractice Standard Reforms on Healthcare Quality. The abstract provides:
Despite the fundamental role of deterrence in the theoretical justification for medical malpractice law, surprisingly little evidence has been put forth to date bearing on its existence and scope. Using data from the 1979 to 2005 National Hospital Discharge Surveys and drawing on an extensive set of variations in various tort measures (e.g., damage caps) and malpractice standard-of-care rules (Frakes 2012a), I estimate a small and statistically insignificant relationship between malpractice forces and two metrics of healthcare quality emphasized by the Agency for Healthcare Research and Quality: avoidable hospitalization rates (reflective of outpatient quality) and inpatient mortality rates for selected medical conditions. At most, the evidence implies an arguably modest degree of malpractice-induced deterrence. For instance, at one end of the 95% confidence interval, the lack of a non-economic damages cap (indicative of higher malpractice pressure) is associated with only a 4% decrease in avoidable hospitalizations.
Wednesday, August 1, 2012
John Goldberg & Robert Sitkoff (Harvard) have posted to SSRN Torts and Estates: Remedying Wrongful Interference with Inheritance. The abstract provides:
This paper examines the nature, origin, and policy soundness of the tort of interference with inheritance. We conclude that the tort should be repudiated because it is conceptually and practically un-sound. Endorsed by the Restatement (Second) of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by the courts of nearly half the states. But the tort is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds all of American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better fitting causes of action for equitable relief. It has a derivative structure that violates the settled principle that torts identify and vindicate rights personal to the plaintiff. We conclude that the emergence of the interference-with-inheritance tort is symptomatic of two related and unhealthy tendencies in modern legal thought: the forgetting of restitution and equitable remedies, and the treatment of tort as a shapeless perversion of equity to provide compensation for, or de-terrence of, harmful antisocial conduct.