June 15, 2012
Koenig & Rustad on the BP Oil Spill
Tom Koenig & Mike Rustad have posted to SSRN Reconceptualizing the BP Oil Spill as Parens Patriae Products Liability. The abstract provides:
The April 20, 2010 explosion and sinking of the Deepwater Horizon created an immense environmental catastrophe in the Gulf of Mexico. This Article examines the products liability litigation by Gulf States attorneys general (AGs) against British Petroleum (BP) and BP’s products-related cross claims. Alabama’s and Louisiana’s multidistrict litigation claims for products liability, negligence, and punitive damages will be pursuant to their parens patriae sovereign powers.
This complex products defect case involves all the big issues in products liability: risk utility design tests, cause in fact, proximate cause, defenses such as state of the art, the economic loss rule, caps on damages, and punitive damages under federal maritime law. The state AGs bear the burden of demonstrating that Cameron International’s blowout preventer (BOP) was defectively designed or contained a manufacturing defect that led to their consequential damages, rather than a superseding cause such as operational errors by BP, Transocean, Halliburton, or some other oil industry defendant supplying equipment or expertise.
This will be the first test of the U.S. Supreme Court’s de facto cap that it placed on punitive damages in maritime cases in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). The BOP, possibly the largest moveable object ever implicated in products liability litigation, will be at the center of an epic legal struggle between oil industry defendants over the limits of tort law to supplement deficient federal regulation. Our argument is that the states’ parens patriae products liability action against BP and other oil industry defendants is necessary so that BP and the other codefendants pay the true costs of deploying allegedly defective products in the perilous subsea drilling and oil exploration industry. Even if the state attorney generals’ litigation ultimately settles, Judge Barbier should be praised for creating a legal pathway for future governmental lawsuits to recover public welfare damages based upon products liability rather than the amorphous and ill-fitting nuisance paradigm.
June 13, 2012
Richard Nixon's Torts Note
As a law student at Duke, Richard Nixon published a note on tort law. Entitled "Changing Rules of Liability in Automobile Accident Litigation," Nixon's note was published at 3 Law & Contemporary Problems 476 (1936). Nixon argued that in applying tort law to automobile accidents, the principle of fault was being relaxed. He examined four "fields" of auto accident law and found fault being relaxed in 3 of them, but strengthened in the fourth. Fault was relaxed in the standard of care because specific standards created by judges (like Holmes's "stop, look, and listen") were being abandoned to allow cases to get to the jury. Fault was being relaxed by the judiciary and legislature regarding contributory negligence. Finally, vicarious liability was being expanded (family purpose doctrine, etc.). However, in the area of guest liability, the principle of fault was actually strengthened by guest statutes requiring gross negligence to prevail. Nixon concluded:
The history of liability in automobile accident litigation discloses a definite trend away from the strict fault concepts of the common law. The courts, though speaking always in terms of fault, have at times stretched the traditional formulas to the breaking point in order to insure recovery to an injured plaintiff. In this respect they have found an always willing ally in the jury. Nor have the legislatures proved reluctant to aid them. Yet the decisions and statutes restricting the rights of the automobile guest indicate that, where reinforced by the average man's dislike of the ingrate or of collusion in fraud, the concept of fault has gained, rather than lost, in vitality.
June 12, 2012
Goldberg on Tort History
John Goldberg has posted to SSRN Tort Law at the Founding. The abstract provides:
In his influential History of American Law, Lawrence Friedman suggests that tort law was “totally insignificant” prior to the late Nineteenth Century. Implicit in this assessment is a judgment that a body of law is significant only insofar is it addresses a large-scale social problem as such. This criterion stacks the deck against tort law, which is not law of this kind. Rather, it is a law of civil recourse. In fulfillment of a governmental responsibility to its citizens, tort defines a certain kind of wrong and empowers victims of this kind of wrong to obtain redress from wrongdoers.
Written for a 2011 symposium held at Florida State University, this essay melds the insights of civil recourse theory with recent historical scholarship to demonstrate that tort law was central to American legal practice and legal thought long before the Industrial Revolution. In fact, the tort notion of civil recourse set the terms on which this nation was founded. Quite self-consciously, Jefferson cast the Declaration of Independence in the language of civil recourse; the Declaration is our founding lawsuit. The inclusion of the Alien Tort Statute in the Judiciary Act of 1789 and the emergence of the nineteenth-century congressional practice of indemnifying officials for their tort liabilities further demonstrate our early embrace of the core tort notion that government bears a responsibility to provide citizens with law for the recourse of wrongs.