March 24, 2012
Coleman on Porat on Misalignments
In the Yale Law Journal Online, Jules Coleman responds to Ariel Porat's Misalignments in Tort Law. Entitled Mistakes, Misunderstandings, and Misalignments, the introduction provides:
In a recent article appearing in The Yale Law Journal, Ariel Porat argues that the tort of negligence is beset by a range of misalignments that threaten to induce inefficient behavior. In this Response, I argue that Porat is working with an unhelpful notion of misalignment; that tort law has its own internal conception of alignment; and that once we understand the nature of alignment in torts, none of his examples are problematic. If anything, his arguments reveal problems in his understanding of the tort of negligence rather than problems in the tort itself or in its practical implementation. Many of the confusions that beset Porat’s argument are common in the law and economics of tort literature, which has for far too long run fast and loose with a confused understanding of the nature of liability in torts as well as of liability’s relationship to the elements of a tort. Porat’s article is my main focus, but my objections are intended to cut more broadly and deeply.
March 23, 2012
OT: Davidson Wins Grisham Short Story Contest
It's obvious that Sheila and I have talented friends. Last month, Sheila posted that her friend Anthony Franze had published a Supreme Court thriller, The Last Justice. This week, it was announced that my close friend, law school roommate, and godfather of my daughter, John Davidson, won a short story contest judged by none other than John Grisham. Congratulations, John!
March 22, 2012
Comer v. Murphy II: Case Dismissed
On Monday, a federal district judge in Mississippi dismissed a climate change suit over Hurricane Katrina-related property damage, holding the connection between any individual's conduct and weather-related harm was too tenuous to support a tort judgment. The opinion is here: Download 17881470_D.E. 291 2012.03.20 Memorandum Opinion & Order Granting Def. Motions to Dismiss.
Thanks to Phil Goldberg for the tip.
March 21, 2012
Rapp on R3
Geoff Rapp (Toledo) has posted to SSRN Torts 2.0. The abstract provides:
In this Symposium Essay, I analogize the American Law Institute's Restatement (Third) of Torts to "Web 2.0." The story of the Third Restatement and its progenitors bears a remarkable resemblance to the great technological revolution of the last century's end: the World Wide Web. Web. 1.0, the first generation of internet activity, treated users as passive. Web 2.0, by contrast, is organic and allowes user preferences to drive site development.
Like Web 2.0, the Third Restatement embraces the "architecture of participation" in the development of tort law. Instead of a top-down approach, ala Web 1.0 and the Second Restatement of Torts, the Third Restatement's embrace of a flexible and open-ended formulation of key tort principles encourages judges and juries to play a participatory role in developing the law of torts.
March 20, 2012
Canada Recognizes Invasion of Privacy Tort
The Lawyers Weekly (CA) reports that the Ontario Court of Appeals has recognized a new cause of action, "intrusion upon seclusion," as a common law invasion of privacy tort. Law Times also has more on the decision, and in particular, analyzes its impact on family law.
March 19, 2012
MN Passes Cap on State/Local Liability
MN Governor Mark Dayton has signed legislation restoring caps in wrongful death cases against state or local governments to pre-2008 levels. The new law caps liability at $1 million because of “a single occurrence, if the claim involves nonprofit corporations engaged in or administering outdoor recreational activities funded or operating under a government-issued permit.” StarTribune Politics has more.