Friday, October 30, 2015
James Hackney has posted to SSRN Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History. The abstract provides:
This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge.
Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation.
The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants. Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality.
Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War.
Monday, October 19, 2015
Lynn Baker has posted to SSRN Alienability of Mass Tort Claims. The abstract provides:
This Article was prepared for the 19th Annual Clifford Symposium on Tort Law and Social Policy, "A Brave New World: The Changing Face of Litigation and Law Firm Finance." It seeks to contribute to the larger conversation about whether the United States should permit innovative forms of litigation financing for personal injury claims by examining a hypothetical regime with expanded alienability of mass tort personal injury claims. The Article focuses on this subset of claims because arguments in favor of complete alienability of personal injury claims are strongest with regard to these claims, and many of the staunchest critics of alternative litigation financing have expressed particular concern about its implications in the mass tort context. Thus, those not persuaded by the Article's analysis are unlikely to be persuaded by arguments for expanding the alienability of personal injury claims more generally.
The Article begins by describing the current state of affairs for both clients and their lawyers regarding the alienability and prosecution of mass tort personal injury claims. Despite various longstanding restrictions on the alienability of personal injury claims in the United States, substantial alienability of these claims is permitted and is engaged in by both clients and their attorneys. Part II discusses the aspects of the prosecution of mass tort claims in the United States that make these claims especially good candidates for complete alienability.
Part III discusses the benefits and costs to mass tort claimants and their attorneys of a hypothetical regime under which a claimant could sell her entire claim to a law firm, rather than retain the firm to serve as her counsel on a contingent fee basis. This Part also discusses various practical issues that would need to be resolved before a claim-sale option for mass tort personal injury claims could become a reality. Part IV goes on to analyze the normative concerns that underlie the existing constraints on claim sales. It reveals that none of these concerns is a persuasive grounds for prohibiting mass tort claimants from selling their claims to an attorney (or, perhaps, to any other potential purchaser).
It is not at all clear that a market for mass tort personal injury claims would flourish even if the existing ethical and legal constraints were relaxed. But that possibility does not diminish the importance of the Article's larger conclusion that there are no compelling normative or economic reasons to prohibit the complete alienability of mass tort personal injury claims in the United States.
Tuesday, October 6, 2015
Friday, October 2, 2015
2016 AALS Annual Meeting, Torts & Compensation Systems Section panel; New York City; Friday, January 8, 2016 from 1:30-3:15 (room to be announced)
On March 14, 1916, New York’s high court issued its decision in MacPherson v. Buick Motor Co. Writing for the court, Judge (later Justice) Benjamin Cardozo held that product manufacturers must take care to manufacture products that do not injure consumers. A century later, MacPherson is considered a landmark of tort law, as well as an exemplar of common law reasoning. It is credited with, among other things, contributing to the demise of laissez-faire thinking in American law and laying the groundwork for the modern doctrine of strict products liability. Yet what the decision accomplished, both as a matter of tort doctrine and jurisprudence, also remains controversial. On the occasion of MacPherson’s centenary, a panel of renowned scholars will examine the significance and influence of the case from multiple perspectives, including its influence of the evolution of the “risk society”, its reception and influence in the United Kingdom and Europe, and its place in tort theory and private law in general.
Papers will be presented by:
Anita Bernstein, Brooklyn Law School
John C. Goldberg, Harvard Law School & Benjamin C. Zipursky, Fordham University School of Law
Franz Werro, Georgetown University Law Center
John F. Witt, Yale Law School
Moderator: Anthony J. Sebok, Benjamin N. Cardozo School of Law
Papers will be published in a forthcoming issue of the Journal of Tort Law
Sunday, September 27, 2015
Thursday, September 24, 2015
A Conference on ‘The Aims of Tort Law’, which will take place on 16th and 17th October 2015 in the Old City Hall, Wipplingerstrasse 6-8, 1010 Vienna, is jointly organised by the Sino-European Private Law Forum, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL). At the start of the Conference, Helmut KOZIOL (Vienna/Graz) will present an introduction into issues the project is dealing with. This will be followed by five topics which will each be analysed by a Chinese and a European presenter. The speakers will be CAO Xianfeng (Jilin), CUI Jianyuan (Beijing), GUO Mingrui (Yantai), WANG Cheng (Peking) and ZHANG Pinghua (Yantai) as well as Michael FAURE (Maastricht/Rotterdam), Monika HINTEREGGER (Graz), Ernst KARNER (Wien), Ken OLIPHANT (Bristol) und Alessandro SCARSO (Milan). The Conference will provide ample opportunity for discussion and debate.
Registration is possible until Tuesday, 1. October 2015 with Lisa Zeiler (firstname.lastname@example.org). Please note that participation in the conference is free of charge. The brochure is here: Download Aims of Tort Law Vienna 16-17 October 2015 fin
Thursday, September 3, 2015
Howie Erichson has posted to SSRN Judge Jack Weinstein and the Allure of Antiproceduralism. The abstract provides:
In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor of substantive justice, but technicalities are in the eye of the beholder, and this Article asks what is lost when a judge steers around procedural constraints.
Wednesday, September 2, 2015
As part of the Clifford Symposium, John Goldberg has written a piece on Judge Weinstein, for whom he clerked. Entitled Judging Responsibility, Responsible Judging, the abstract provides:
This essay, published in the Twentieth Annual Clifford Symposium, sketches two ways in which Judge Jack Weinstein’s judicial performance raises issues of responsibility. First, it considers how he has deployed responsibility concepts that are central to tort law. Unsurprisingly, it concludes that, in his efforts to do “equity” through mass tort litigation, he has stretched these concepts quite far. This conclusion raises a second set of questions about responsibility—namely, questions about the role responsibilities of federal district court judges. As to these, the essay contends that Judge Weinstein’s tort decisions are consistent with a familiar and plausible account of judicial decision-making. It also notes ways in which he has been especially responsible in his handling of claims and claimants.
Tuesday, September 1, 2015
The AALS Section on Insurance Law will hold a program on Insurance and Litigation during the AALS 2016 Annual Meeting in New York. The program is scheduled for Sunday, January 9, 2016, from 10:30 AM to 12:15 PM. The program will feature a panel of leading research on the relationships between insurance and litigation. For a longer description of the topic, see below
Submissions: To be considered, a draft paper or proposal must be submitted by email to Ezra Friedman, Program Chair, at email@example.com. A proposal must be comprehensive enough to allow for a meaningful evaluation of the proposed paper. Submissions must be in Micorsoft Word or PDF format.
Deadline: The deadline for submissions is Friday, October 9. Decisions will be communicated by Friday, October 23.
Eligibility: Full-time faculty members of AALS member law schools are eligible to submit. Faculty at fee-paid law schools; foreign, visiting and adjunct faculty members; graduate students; fellows; and non-law school faculty are not eligible to submit. Papers may already be accepted for publication, provided that the paper will not be published before the AALS meeting.
Expenses: The panelist selected through this Call for Papers will be responsible for paying his or her own annual meeting registration fee and travel expenses.
Inquiries: Inquiries about this Call for Papers may be submitted to Ezra Friedman, Northwestern University, School of Law, firstname.lastname@example.org, (312) 503-0230.
“Insurance and Litigation, Risk and Incentives”
Appreciating the role that insurers and insurance plays in litigation is fundamental to understanding both insurance markets and the legal system. Insurers participate in litigation directly as parties to conflicts or as agents of their policyholders, and indirectly by affecting the financial stakes of the parties. Third party litigation finance firms act as de facto insurers of litigation outcomes. This session will address various subjects regarding the relationship between insurance, risk, and litigation. Possible questions include: How can law makers best address the conflicts of interest between insurers and policyholders in litigation? How does the prospect of litigation between the insurer and policyholder affect the drafting and performance of insurance contracts? What effects do the prospect of litigation have on the value and cost of providing Insurance? What can understanding insurance law and regulation tell us about how to regulate litigation finance?
Monday, August 10, 2015
Alexandra Lahav has posted to SSRN Participation and Procedure. The abstract provides:
How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.
Wednesday, July 29, 2015
Saturday, July 18, 2015
Jay Feinman sends the following:
The Rutgers Center for Risk and Responsibility is holding its fourth annual insurance workshop on Friday, October 2, 2015. This is a day-long event on the Camden campus with an opportunity to present and receive comments on drafts or less fully formed works-in-progress on topics related to insurance law or other aspect of managing or regulating risk. For more information, contact Professor Rick Swedloff, email@example.com
Friday, June 5, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at firstname.lastname@example.org. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Please feel free to contact me if you have any questions.
Friday, April 3, 2015
Thursday, February 5, 2015
Rutgers Camden in hosting a conference on the ALI's Restatement of the Law of Liability Insurance on Friday, February 27th. Reporters Tom Baker and Kyle Logue are speaking, along with numerous influential academics and practitioners.
Saturday, January 3, 2015
The AALS Torts & Compensation Systems Section has its panel at the Annual Meeting tomorrow from 4:00 until 5:45 in Maryland Suite C, Lobby Level, at the Marriott Wardman Park Hotel. Andy Klein led the Section this year and set up a great panel:
Tort Law and a Healthier Society
Andrew R. Klein, Indiana University Robert H. McKinney School of Law
Michelle Mello, Stanford Law School
Dorit Reiss, University of California, Hastings College of the Law
Diana Winters, Indiana University Robert H. McKinney School of Law
Section on Torts and Compensation Systems William L. Prosser Award Winner:
Michael Green, Wake Forest University School of Law
The section will present a program on leading issues at the intersection of tort and health law. Professor Mello will discuss medical malpractice alternatives for hospitals. Professor Reiss will discuss liability issues related to vaccine-preventable diseases. Professor Winters will discuss food safety impact litigation. The section will also honor the winner of its annual William L. Prosser Award for outstanding contribution in scholarship, teaching, and service related to tort law.
Business meeting at program conclusion.
I regret I can't attend, but I extend my warm congratulations to Mike Green.
Wednesday, December 3, 2014
If you have 7 or fewer years of teaching experience, you are eligible for the Yale/Stanford/Harvard Junior Faculty Forum, this year including Torts as a subject matter. The deadline is March 1, 2015. Details are here: Download JFF final call for submissions
Tuesday, October 28, 2014
On October 6th in Buffalo, Ken Feinberg was the keynote speaker at a conference on cutting-edge tort issues. He both praises and damns tort law in his remarks to the Buffalo Law Journal.
Wednesday, October 22, 2014
The AALS Torts & Compensation Systems Section Newsletter is available here: Download Torts_Newsletter_2014. Section Secretary Leslie Kendrick drafted it, with the help of Kristin Glover, Research Librarian at UVa Law.
Monday, September 29, 2014
...includes a paper presentation by Ben Zipursky ("Reasonableness in and out of Negligence Law") and Greg Keating as a panelist. The symposium is October 24th and 25th. The program is here and you can RSVP. Thanks to Karen Wong of the University of Pennsylvania Law Review for the tip.