TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, August 30, 2016

Ralph Brill Retires from Chicago-Kent

From Richard Wright:​
 
In a recent post to the Tortprof discussion list, my long-time colleague, Ralph Brill, announced the imminent closing of that discussion group, which he initiated and managed for many years, due to his pending retirement and the few postings on that list in recent years. I (and others) attempted to post responses regarding both the list and Ralph's accomplishments during his almost 60 years of teaching. However, the list was closed down immediately, so ​(I believe) ​neither my posting or any other posting went through. I appreciate being able to make this post on the Tortsprof blog to acknowledge Ralph's lifetime work and to suggest an alternative, much more active list for those previously enrolled in the Tortprof list.
  
Ralph's retirement from Chicago-Kent at the end of this academic year after almost 60 years of teaching Torts (and other courses) deserves widespread acknowledgement. However, it unfortunately is likely to be little noted, at least among Torts scholars, since Ralph has always devoted his efforts more practically to actual cases (for which he has filed many persuasive briefs) and, especially, teaching and dissemination of information to students and faculty where he works and worldwide. He is rightfully regarded among Legal Writing and Research professors as the leading innovator and champion of work in that area, having created long ago Chicago-Kent's three-year Legal Writing and Research program staffed by full-time faculty, which has since been copied in part or whole by almost all other law schools. His creation and management of the Tortprof discussion list is only a small indication of his efforts to facilitate dissemination of information to relevant audiences. We at Chicago-Kent receive several emails from Ralph every day with information about relevant developments in legal academia.
 
I have a personal debt to acknowledge. When I joined Chicago-Kent 30 years ago, Ralph likely was not one of my biggest supporters, given my more theoretical bent, although I have always insisted on theory being based on or at least taking into account actual practice, Yet he immediately welcomed me and took me under his wing. From the beginning of my time at Chicago-Kent, he has been my closest associate, professionally and personally. He has been my go-to person for any question about tort liability, in addition to providing me and other Torts professors at Chicago-Kent with information about recent cases and other developments. He has also been a role model for me in speaking up, however unpopular the view might be among the faculty generally, for actions that benefit our students rather than we faculty members.
 
I will greatly miss having Ralph always around at Chicago-Kent, but I hope to continue to benefit from his friendship and advice.
 
The Tortprof discussion list is gone.  As Ralph noted in his final post, this will not be a major loss, given the minimal use of Tortprof. For those of you who have not already done so, I encourage you to join the Obligations Discussion Group (obligations@uwo.ca), which is much more active and international, which discusses private law more generally but mostly Tort law. ​ Its members mainly are from the English Commonwealth, but it includes a substantial number of scholars from the USA and a small but growing number from civil law jurisdictions. To subscribe to the list, send an email to Professor Jason Neyers (jneyers@uwo.ca) and include information about your academic or professional legal affiliation.​

August 30, 2016 in TortsProfs | Permalink | Comments (1)

Monday, August 29, 2016

Sugarman Wins Prosser Award

Steve

The AALS Section on Torts and Compensation Systems is pleased to announce that the recipient of the 2017 William L. Prosser Award is Stephen Sugarman, Roger J. Traynor Professor of Law at the University of California, Berkeley School of Law.

The Prosser Award recognizes outstanding contributions in scholarship, teaching and service related to tort law. Nominations are made by fellow tort scholars, and the recipient is selected by former Prosser Award winners and former chairs of the AALS Torts Section, with approval of the Torts Section Executive Committee. Professor Sugarman’s award, and his many contributions to tort law, will be recognized at the Torts Section meeting at the AALS Annual Meeting in San Francisco, at 1:30 pm on Friday, January 6th, 2017.

August 29, 2016 in TortsProfs | Permalink | Comments (1)

Friday, August 26, 2016

Two from Hart Publishing

Hart Publishing has published James Edelman and Elise Bant's Unjust Enrichment.  From the blurb:

Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors' thinking, responding to novel issues and circumstances that have arisen in the maturing case law, has required many chapters of the book to be completely rewritten. The scope of the book is also much broader. It concerns the principles of the law of unjust enrichment in Australia, New Zealand, England and Canada. Major decisions of the highest courts of these jurisdictions in the last decade provide a fertile basis for examining the underlying principles and foundations of this subject. The book uses the leading cases, particularly in England and Australia, to distil and explain the fundamental principles of this branch of private law. The cases discussed are current as of 1 May 2016 although the most recent could only be included in footnotes.

For a 20% discount, download this flyer:  Download Edelman_Bant

Hart has also published Alan Beever's A Theory of Tort Liability.  From the blurb:

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.

For a 20% discount, download this flyer:  Download Beever

August 26, 2016 in Books, Scholarship | Permalink | Comments (0)

Sant'Ambrogio & Zimmerman on Agency Class Actions

Michael Sant'Ambrogio and Adam Zimmerman have posted to SSRN Inside the Agency Class Action.  The abstract provides:

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

August 26, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, August 24, 2016

Abraham & White on Party Testimony and Tort Law

Ken Abraham & Ted White have posted to SSRN The Transformation of the Civil Trial and the Emergence of American Tort Law.  The abstract provides:

Everyone agrees that American tort law expanded significantly in the late nineteenth century. But the story of that change, as usually told, is radically incomplete. One important precondition of tort law as we now know it was a major change in evidence law, one that only began to emerge after 1850. Before then, plaintiffs, defendants, and other “interested” parties were almost universally prohibited from testifying in civil trials. With this prohibition on party testimony, what the jury knew about the facts underlying a tort action was derivative and incomplete. Far fewer tort actions were brought at all, because often the only evidence available to the plaintiff was his or her own account of what had happened, and that was inadmissible. But with the change, victims of personal injury were now able to describe, before juries, the circumstances in which they had been injured. They were able to talk about what they had done, what the entities they were suing had done or not done, and how they had suffered. They no longer needed the fortuitous presence of third-party witnesses to elicit testimony about how had they had been injured. The abolition of the prohibition on party testimony, in short, made it much easier to succeed in personal injury lawsuits.

At stake in this transformation was the very epistemology of the civil trial. With the admission of party testimony, civil trials went from being pre-modern efforts to resolve disputes whose outcomes were affected by the spiritual weight assigned to oaths taken by third-party witnesses, to the modern searches for factual truth that we now (incorrectly) assume they always have been. Without this transformation, other factors that later brought about modern tort liability could not have exercised the influence that they did have. The transformation created the very conditions under which modern tort law could, and then did, emerge. Yet the transformation and its significance for tort law have gone largely unrecognized. Modern tort scholars appear to be completely unaware of the prohibition on party testimony, and have therefore failed for more than a century to take it into account in the way they have written and taught about the development of the law of torts. Because the rules and practices that preceded the transformation have now completely disappeared from modern torts cases, what it accomplished may appear, incorrectly, to have always been the case. But it is lack of visibility, rather than lack of responsibility, that has actually been at work in hiding the significance of the transformation for the emergence of modern tort law.

(Via Solum/LTB)

August 24, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, August 23, 2016

Hylton on Patent Infringement Damages

Keith Hylton has posted to SSRN Enhanced Damages for Patent Infringement:  A Normative Approach.  The abstract provides:

In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.

August 23, 2016 in Damages, Scholarship | Permalink | Comments (0)

Monday, August 22, 2016

JOTWELL Torts: Bublick on Nolan on Preventive Damages

Over at JOTWELL, Ellie Bublick reviews Donal Nolan's Preventive Damages.

August 22, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, August 18, 2016

PA: Dispute Over Products Jury Instructions

In late 2014, the Supreme Court of Pennsylvania decided Tincher v. Omega Flex, overruling several unusual aspects of state law and declining to adopt R3.  The case created a lot of uncertainty, which has been compounded by recent turnover on the court.  This summer, the civil instructions subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions unveiled the first changes to standard products jury instructions in forty years.  The defense bar and manufacturers are not happy.  In a ten-page letter (Download DC-#626926-v1-Pa__jury_instruction_protest_letter_2016)  sent to the subcommittee's chair, partners from multiple law firms and twenty companies, including Johnson & Johnson; Pfizer Inc.; GlaxoSmithKline; Ford; Shell Oil, and Eli Lilly, raised objections to the proposed standard jury instructions.  The Legal Intelligencer reports:

Chief among those issues, the defense bar said, is the update's failure to include any mention of the requirement under Section 402A of the Restatement (Second) of Torts that a product defect must be "unreasonably dangerous" to support strict liability. The instructions are inconsistent with Tincher's adoption of the "prevailing standard of proof" reflected in the jury instructions of most states that follow Section 402A, and should be rewritten to include an instruction on the issue, the letter said.

The subcommittee chair responded that the subcommittee had taken all perspectives into account when crafting the revisions, but would nevertheless review the proposed instructions again at its next meeting.  The full article (behind a free sign-up wall) is here.

August 18, 2016 in Current Affairs, Products Liability | Permalink | Comments (0)

Monday, August 15, 2016

NE: Eggshell Plaintiff, Workers' Comp, Battery, and Tort Claims Act

Here is a classic eggshell plaintiff case in which one officer (Lancaster County) gave another (City of Lincoln) a friendly punch on the shoulder in greeting, without knowing that the recipient had recently undergone rotator cuff surgery. The result was $63,418 in medical bills, covered by workers' comp. The City of Lincoln sued Lancaster County for indemnification, but a district judge determined that the punch was an intentional tort (battery) rather than negligence, therefore immunizing Lancaster County from liability under Nebraska's municipal tort claims act.  The Lincoln Journal Star has details.

August 15, 2016 in Current Affairs | Permalink | Comments (0)

Monday, August 8, 2016

Turton: Evidential Uncertainty in Causation in Negligence

Hart Publishing has just released Gemma Turton's Evidential Uncertainty in Causation in Negligence.  The blurb:

This book undertakes an analysis of academic and judicial responses to the problem of evidential uncertainty in causation in negligence. It seeks to bring clarity to what has become a notoriously complex area by adopting a clear approach to the function of the doctrine of causation within a corrective justice-based account of negligence liability. It first explores basic causal models and issues of proof, including the role of statistical and epidemiological evidence, in order to isolate the problem of evidential uncertainty more precisely. Application of Richard Wright's NESS test to a range of English case law shows it to be more comprehensive than the 'but for' test that currently dominates, thereby reducing the need to resort to additional tests, such as the Wardlaw test of material contribution to harm, the scope and meaning of which are uncertain. The book builds on this foundation to explore the solution to a range of problems of evidential uncertainty, focusing on the Fairchild principle and the idea of risk as damage, as well as the notion of loss of a chance in medical negligence which is often seen as analogous with 'increase in risk', in an attempt to bring coherence to this area of the law.

A flyer (with discount) is here:  Download Turton

August 8, 2016 | Permalink | Comments (0)

Friday, August 5, 2016

Dillbary, Edwards & Vars on the Costs of Suicide

Shahar Dillbary, Griffin Edwards, and Fredrick Vars have posted to SSRN The Costs of Suicide.  The abstract provides:

This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide—the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.

August 5, 2016 in Scholarship | Permalink | Comments (1)

Thursday, August 4, 2016

TX: General Contractor Not a "Seller" for Purposes of Products Liability Indemnification

Many jurisdictions have enacted protections for "innocent" sellers of products found to be defective in an attempt to place the burden of compensation on the party with (the most) fault, generally the manufacturer.  Texas has a statute allowing an innocent seller to receive indemnification.  A general contractor incorporated a defective roof truss into its project and the issue arose whether the contractor was a "seller" for purposes of the statute.  The court ruled it was not, as it was not in the business of selling roof trusses, rather the provision of roof trusses was incidental to its general construction services.  Jones Day's website has details

August 4, 2016 in Products Liability | Permalink | Comments (0)

Wednesday, August 3, 2016

CT: Workers Comp Bars Bystander Emotional Distress Claims

On Monday, the Connecticut Supreme Court ruled that a woman who found her husband crushed to death shortly after a large ATV fell on him cannot sue his employer for bystander emotional distress.  She recovered pursuant to the state's workers comp statute.  The Hartford Courant has the story.

August 3, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, August 2, 2016

Schwarcz on a Unified Theory of Insurance Law

Daniel Schwarcz has posted to SSRN A Unified Theory of Insurance Law:  The Clarification, Production, and Dissemination of Coverage Information.  The abstract provides:

The central goal of insurance law is to clarify, produce, and disseminate information about the scope of insurers’ coverage obligations to policyholders. This Article examines how insurance law and regulation seek to achieve these objectives, and to what ends. To do so, it distinguishes among three different types of coverage information: (i) purchaser information, or coverage information that is communicated to policyholders at the time they purchase coverage; (ii) policy information, or coverage information that is contained within the four corners of the insurance policy; and (iii) judicial information, which is coverage information that is ascertainable only after researching judicial opinions resolving coverage disputes. The Article shows how each of these three forms of coverage information can promote more efficient insurance markets, frequently in ways that are largely overlooked or under-appreciated by courts and commentators. This framework not only helps illuminate the underlying structure of insurance law. It also sheds new light on various long-standing disputes in the field, which often require prioritization and trade-offs among the three different types of coverage information. For instance, the Article suggests that one important reason for embracing a sophisticated policyholder exception to the ambiguity rule is that doing so produces judicial information at the expense of policy information, a sensible tradeoff with respect to sophisticated policyholders. Similarly, the Article argues that, contrary to the ordinary rule, courts should generally refuse to admit extrinsic evidence to disambiguate policy language when it comes to consumer-oriented policies, because doing so can undermine the production of policy information when purchaser information is present. Yet these two types of information serve very different purposes in the insurance context. More generally, the Article suggests that a substantial number of perennial disputes in insurance law can be helpfully analyzed by reference to their impact on purchaser information, policy information, and judicial information.

August 2, 2016 in Scholarship | Permalink | Comments (0)

Monday, August 1, 2016

Steinitz & Gowder on Transnational Litigation as Prisoner's Dilemma

Maya Steinitz and Paul Gowder have posted to SSRN Transnational Litigation as a Prisoner's Dilemma.  The abstract provides:

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.

August 1, 2016 in Scholarship | Permalink | Comments (0)