Wednesday, August 16, 2017
Cathy Sharkey has posted to SSRN Can Data Breach Claims Survive the Economic Loss Rule?. The abstract provides:
Data security breach cases are fertile ground to explore the impact of the economic loss rule and to challenge the conceptual underpinnings of this judge-made doctrine. The extent to which the economic loss rule serves as a formidable barrier to credit card data security breach cases depends upon the underlying state law; in particular, whether a state adopts the majority or minority position on the rule, as well as how it defines various exceptions thereto. Upon closer examination, it becomes clear that the rule operates in a fundamentally distinct manner in the “stranger paradigm” as compared to the “contracting parties paradigm.” What makes the credit card data security breach cases so vexing is that they often straddle the stranger/contracting parties paradigms. The credit card data breach cases can be reframed in a coherent way that defers to contractual allocation of risk and responsibility but nonetheless allows tort liability to be deployed when needed to ensure the internalization of third-party costs. Seen from a broader regulatory perspective — especially taking into account state statutory provisions relating to enforcement of private industry standards in the credit card arena — the economic loss rule functions as a boundary-policing doctrine between tort and regulation as alternative mechanisms to regulate private parties. Moreover, as a more robust third-party liability insurance market emerges in response to a greater threat of tort liability, insurers will engage in further risk management, exerting more potent regulatory control.
Wednesday, August 9, 2017
Southwestern Law School is hosting a symposium on January 26, 2018 entitled "Fake News and Weaponized Defamation Global Perspectives". Abstract are due on September 25, 2017 and final papers are due January 5, 2018. Information is available here: Download Call for Papers - email (3)
Monday, August 7, 2017
Bob Rabin has posted to SSRN Perspectives on Privacy, Data Security and Tort Law. The abstract provides:
The continuing problems of data breaches, data misuse, and the consequent failure of current laws to adequately deal with these problems is widely acknowledged. In this article, I provide an overview of the regulatory enforcement and information disclosure strategies for addressing the problem before turning to the main theme of the paper: An assessment of the pathways available through tort remedies.
Wednesday, July 12, 2017
Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
Hotel rooms are now available for pre-booking. The conference hotel is the Holiday Inn Conference Center in Carbondale. To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL. SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events. Other hotel options (without shuttle service) are listed on our website. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.
Wednesday, May 24, 2017
In the past week, I have had posts about the ALI's votes on two Restatement projects. On Monday, the membership reviewed the Restatement of the Law Third, Torts: Intentional Torts to Persons (Reporters Ken Simons and Jonathan Cardi). The entire discussion consisted of motions on section 3(b), which provides liability for offensive battery for unusually sensitive plaintiffs. Guy Struve filed two motions to eliminate liability. The membership split on the motions, eliminating liability for cases of substantial certainty but retaining it in cases where the defendant had purpose to offend the plaintiff. The Reporters accepted Richard Wright's motion to amend requiring it be the defendant's principal purpose. Due to a lack of time, Wright's other motions were not debated.
Yesterday the membership reviewed the Restatement of the Law, Liability Insurance (Reporters Tom Baker and Kyle Logue). A number of motions to alter the draft were defeated, but a final draft was not approved as scheduled. The Reporters agreed that another year of work on the project would be beneficial.
Wednesday, May 17, 2017
Restatement of Intentional Torts: Should Offensive Battery Include Unusual Sensitivities of Plaintiffs if Known by Defendants?
The latest version of Section 3 of the Restatement of Intentional Torts provides:
§ 3. Battery: Definition of Offensive Contact
A contact is offensive within the meaning of § 1(c)(ii) if:
(a) the contact is offensive to a reasonable sense of personal dignity; or
(b) the contact is highly offensive to the other’s unusually sensitive sense of personal dignity, and
(i) the actor knows to a substantial certainty that the contact will be highly offensive to the other;
or (ii) the actor contacts the other with the purpose that the contact will be highly offensive.
Liability under Subsection (b) shall not be imposed if the court determines that avoiding the contact would be unduly burdensome or that imposing liability would be against public policy.
Section 3(b) includes liability for contact that is not offensive to a reasonable sense of personal dignity if the defendant knew that such contact would be highly offensive to the particular plaintiff in question. It was adopted two years ago, at the 2015 annual meeting, by a tie vote broken by the Reporters. Subsequently, it was decided to reconsider the issue this year, due to the relatively low number of persons present in 2015 and the closeness of the vote. The issue is whether to allow liability for offensive battery (or assault) if the defendant knowingly or purposefully ignores or exploits, as the case may be, the plaintiff's unusually sensitive condition, when it would not be unduly burdensome or contrary to public policy to avoid doing so. Just as in 2015, motions have been filed to eliminate 3(b) in its entirety or at least eliminate 3(b)(i) regarding substantial certainty. Guy Struve filed these motions which are here: Download R3d Intentional Torts TD2 s.3b Struve motion 1 (2) and here: Download R3d Intentional Torts TD2 s.3b Struve motion 2 (1)
On the other hand, Richard Wright has filed motions that seek to have the ALI support such liability, but without requiring a highly offensive contact or an intent to cause a highly offensive contact. Wright's arguments in support of his motions criticize the Struve motions for their assertions regarding the existing state of the case law and the prior Restatement provisions. Wright's motions are here: Download R3d Intentional Torts TD2 s.3b RWW motions
Very few Torts professors were at the meeting in 2015. If you are an ALI member in the area, please come and participate.
Wednesday, January 4, 2017
The AALS Section on Torts and Compensation Systems panel information:
Tuesday, January 3, 2017
Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs. The abstract provides:
This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.
Thursday, November 24, 2016
Institute for Law Teaching & Learning and Emory University School of Law
Spring Conference 2017
“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans. The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning. Participants will also learn ways to coordinate assessment across the curriculum. The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law.
Conference Content: Sessions will address the following topics:
Why Assess: Empirical Data on How it Helps Students Learn
Games as Formative Assessments in the Classroom
Formative Assessment with Team-Based Learning
Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment
Coordinating Formative Assessment Across the Curriculum
Conference Faculty: Workshops will be taught by experienced faculty: Andrea Curcio (GSU Law), Lindsey Gustafson (UALR Bowen), Michael Hunter-Schwartz (UALR Bowen), Heidi Holland (Gonzaga) and Sandra Simpson (Gonzaga)
Who Should Attend: This conference is for all law faculty and administrators. By the end of the conference, attendees will have concrete and practical knowledge about formative assessment and complying with Standard 314 to take back to their colleagues and institutions.
Registration Information: The registration fee is $225 for the first registrant from each law school. We are offering a discounted fee of $200 for each subsequent registrant from the same school, so that schools may be able to send multiple attendees. Registration is here: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/
Accommodations: A block of hotel rooms for conference attendees has been reserved at the Emory Conference Center Hotel for $159/night; at the Courtyard by Marriott in downtown, Decatur for $99/night; and at the Decatur Holiday Inn for $159/night. Reservation phone numbers are : Emory Conference Center Hotel: 1-800-933-6679; Courtyard by Marriott Downtown Decatur: www.marriott.com or 1-404-371-0204; Holiday Inn Hotel Decatur 1-888-HOLIDAY.
Friday, November 11, 2016
The Institute for Law Teaching and Learning announces its Summer 2017 Conference, "Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302," at the University of Arkansas at Little Rock William H. Bowen School of Law on July 7-8, 2017:
The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,” such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.” The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills. The deadline to submit a proposal is February 1, 2017.
Call for Proposals: Download CFP Summer 2017 Bowen Conference
Thursday, October 27, 2016
Thursday, October 13, 2016
At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort: deceptive deprivation of core legal rights. Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
Corporate Crime Reporter has the story.
Monday, September 19, 2016
On December 3, 2016, Duquesne Law will host the Fifth "Colonial Frontier" Legal Writing Conference. Entitled "Drafting Statutes and Rules: Pedagogy, Practice, and Politics", the flyer is here: Download The Fifth Colonial Frontier Legal Writing Conference, Description.
Wednesday, July 20, 2016
From Chris Odinet at PropertyProf Blog:
REGISTRATION OPEN FOR CENTRAL STATES LAW SCHOOLS ASSOCIATION CONFERENCE
Please click here to register. The deadline for registration is September 2, 2016.
Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
We look forward to seeing you in Grand Forks!
The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.
Friday, May 27, 2016
A recent conference at the James Humphreys Center for Complex Litigation at George Washington addressed the complex issue of liens for medical expenses and subrogation. The conference chairs, Alan Morrison and Roger Trangsgrud, issued a report entitled "Subrogation of Medical-Expense Claims: A Proposal for Future Study", available here: Download GW Law Roundtable Subrogation Proposal Final Thanks to Michael Kaplen for the tip.
Friday, May 6, 2016
Wednesday, April 27, 2016
Duquesne is hosting a legal writing conference on drafting statutes and rules on December 3, 2016. Former PA Governor Tom Corbett and Pennsylvania Senate Minority Leader Jay Costa are among the speakers. The flyer, including a call for proposals, is here: Download The Fifth Colonial Frontier Legal Writing Conference Call for Proposals (Second Announcement)
Thursday, March 17, 2016
Maya Steinitz has posted to SSRN Back to Basics: Public Adjudication of Corporate Atrocities Torts. The abstract provides:
The editors of this symposium invited me to contribute on the subject of an argument I have recently advanced that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.
Monday, February 22, 2016
Lynn Baker has posted to SSRN Aggregate Settlements and Attorney Liability: The Evolving Landscape. The abstract provides:
This Article was prepared for the Hofstra Law Review conference on "Lawyers as Targets: Suing, Prosecuting, and Defending Lawyers."
Over the past several decades, attorneys involved in mass tort settlements, especially those representing the plaintiffs, have faced an increasing number of large-dollar liability claims centered on the aggregate settlement rule: that is, the state equivalents to Rule 1.8(g) of the ABA Model Rules of Professional Conduct. During this period, courts have held that fee forfeiture, potentially totaling millions of dollars, is an appropriate remedy for violations of the Rule, even in the absence of any demonstrated harm to the client. At the same time, courts and other authoritative bodies have expressed a variety of often conflicting views regarding the obligations that the Rule imposes on attorneys and when the Rule applies, resulting in much uncertainty and little guidance for attorneys.
This Article offers both positive and normative clarification. It provides a thick description of the current interpretations of the aggregate settlement rule in order to identify the specific areas of disagreement among authorities. It goes on to offer a normative theory of the Rule and its purpose, which could usefully mitigate the current interpretive confusion regarding which settlements are "aggregate settlements" and what client disclosures are mandated by the Rule.
Monday, February 15, 2016
In conjunction with the British Institute of International and Comparative Law, Ken Oliphant is presenting "The Personal Injury Claims Process--Comparing Legal Cultures" on March 3 in London: