Friday, August 16, 2013
Scott Hershovitz (Michigan) has posted two pieces to SSRN. First up is this year's Monsanto Lecture: What Does Tort Law Do? What Can it Do?. The abstract provides:
It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts.
In this essay (delivered as the 2012 Monsanto Lecture at Valparaiso University School of Law), I argue that tort is concerned with those injuries and invasions because it aims at corrective justice, not efficiency. But I contend that the corrective justice tort pursues is not best understood on an Aristotelian model, which requires that wrongful transactions be reversed. Rather, I argue, tort pursues corrective justice in much the same way that revenge does — by offering a performance aimed at persuading us that victim and wrongdoer are even in respect of the wrong.
Next is Tort as a Substitute for Revenge. The abstract provides:
In 1870, William Alcorn sued Andrew Mitchell for trespass. His suit did not go well, and at the end of trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1000, which the Illinois Supreme Court approved on the ground that awarding “liberal damages . . . save[d] the necessity of resort to personal violence as the only means of redress.” In the Court’s view, Alcorn had to pay so that Mitchell would not have to strike back.
The idea that tort suits substitute for revenge is still with us today. But it is not clear how the substitution is supposed to work. Taking Alcorn v. Mitchell as a template, I argue that the primary reason for regarding tort as a substitute for revenge is that both are tools for doing corrective justice. Along the way, I develop and defend a communicative conception of corrective justice, and I argue that tort and revenge share similar expressive aims.
Thursday, August 15, 2013
Jill Wieber Lens (Baylor) has posted to SSRN No Matter the Enormous Cost: A Defendant's Accuracy-Based Right to Present Defenses. The abstract provides:
The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.
The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court requiredindividualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.
Wednesday, August 14, 2013
Paul Figley (American) has published "Using Problems to Teach Quantitative Damages in a First Year Torts Class" in the Journal of Legal Education. The article discusses methods to teach 1Ls how to actually calculate damages in a torts case, such a future income. Figley suggests a "Festival of Damages" class day, where "the students serve as advocates, judges, and reporters to discuss and argue specific damages issues." The article provides instructions for how to incorporate this idea into your own class.
Tuesday, August 13, 2013
John Culhane (Widener) has posted to SSRN Sandusky's Victims: Compensation, Vindication, and Blame. The abstract provides:
In a select group of high-profile cases, compensation funds have begun to emerge as an alternative to tort law. After the tragic events of September 11, 2001, Congress created a Victim Compensation Fund for the families of those killed, and then expanded the fund in 2010 to cover first responders and others who suffered from long-term injuries in the aftermath of the attack. After the Deep Horizon Oil Spill in April 2010, BP established a compensation fund mostly to pay those who could prove they had suffered economic loss. Most recently, a compensation fund was created to compensate victims in the sex abuse case involving Earl Bradley, a Delaware pediatrician whose decades-long abuse of small children has caused untold physical and emotional suffering.
The cases that have given rise to these compensation schemes have little in common. This article explores the principal distinctions among them, and concludes that it is difficult to discern any rhyme or reason to the circumstances that give rise to compensation funds, or to the justification or shape of these funds when they are established. In the course of this project, the article sets forth some ground rules for deciding whether a compensation fund is a justifiable in particular cases.
With this analysis as backdrop, I then make the argument that the sex abuse case involving Penn State employee Jerry Sandusky case is an especially apt candidate for a compensation fund, and that the fund created to settle the civil case against Earl Bradley case provides a useful (though not perfect) template to follow in fashioning relief. The article concludes with a few more general observations on the special suitability of compensation funds to sex abuse cases.
Monday, August 12, 2013
For readers with an interest in comparative or international tort law, Melbourne Law School has launched a new blog, Opinions on High, which focuses on decisions of the High Court of Australia. A recent post, for examples, examines the duty to warn in the medical malpractice context under Australian law.