Saturday, June 1, 2013
Friday, May 31, 2013
Tony Sebok has posted to SSRN Control Issues: Litigation Investment, Insurance Law, and Double Standards. The abstract provides:
Investment in litigation, sometimes known as litigation finance, is becoming increasingly accepted around the world. Once disfavored by the common law, it is now embraced in England and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation by laypersons otherwise unconnected to the legal matter at issue has been met by various objections. These include that it interferes with the autonomy of lawyers, and that it would promote frivolous litigation.
This article takes up an argument against litigation investment frequently made by the U.S. Chamber of Commerce and other important stakeholders in the Civil Justice System: that the legal system should not encourage parties to alienate their control over litigation that would vindicate their rights. This criticism suggests that private law theory requires that control stay with the original right holder, and that a contract between a party who wants to sell (or give up) all or some of her control over her litigation to a stranger should be struck down for being contrary to public policy.
While I briefly consider justifications rooted in moral philosophy for the view that control of litigation cannot be alienated, I focus mostly on arguments based on an interpretation of common law practice. I argue that arguments based on the structure or nature of the common law against the alienation of control of litigation are anachronistic. Such arguments constrained markets in the Nineteenth Century, but as social needs evolved, especially as the role of insurance in society grew, courts reinterpreted common law practices to permit the alienation of control of litigation for profit in various contexts, including subrogation and liability insurance.
The article concludes by arguing that we can learn from the evolution of insurance law how rigid attitudes about the relationship between victims and wrongdoers can bend to fit social needs. It argues that, given the strong market interest in litigation investment in the United States, (as well as its social benefits), the common law should accommodate the alienation of control in this new context.
Thursday, May 30, 2013
John Goldberg & Ben Zipursky have posted to SSRN Tort Law and Responsibility, a chapter in Philosophical Foundations of the Law of Torts (edited by John Oberdiek and available next year). The abstract provides:
It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories.
In this chapter, we aim to provide an account of the centrality of responsibility to tort law, thereby restoring its proper place in tort theory. We first review the impressive effort of Stephen Perry to harness Tony Honoré’s notion of “outcome-responsibility” to supply a satisfactory understanding of tort law, and negligence law in particular. We then demonstrate how notions of responsibility of the sort invoked by Perry help explain some of the most important developments in modern tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties. Finally, we argue that our own interpretive account — the civil recourse theory of tort — is superior to Perry’s in that it places notions of responsibility at the center of tort law while also making better sense of prevailing doctrine.
Wednesday, May 29, 2013
The Indiana Law Journal has posted to its website the articles from the 2012 AALS Torts & Compensation Systems panel on civil recourse theory:
|Indiana Law Journal|
|Volume 88: Issue 2
AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL
|Twenty-First Century Tort Theories: The Internalist/Externalist Debate
Michael L. Rustad
|Civil Recourse Theory’s Reductionism
|Instrumental and Noninstrumental Theories of Tort Law
Richard A. Posner
|Beneath the Surface of Civil Recourse Theory
|Two Roads Diverge for Civil Recourse Theory
Christopher J. Robinette
Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette