Saturday, September 1, 2012
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.