Monday, April 9, 2018
Ben Zipursky has posted to SSRN his Monsanto Lecture Online Defamation, Legal Concepts, and the Good Samaritan. The abstract provides:
Federal and state courts around the country – aided by academics on almost all sides – have completely misread the Communications Decency Act [“CDA”] § 230(c). This widely cited provision was designed to protect Internet service providers and certain Internet users from liability for the defamatory statements posted by others online. Congress did not want these actors to face a defamation-law equivalent of a duty to rescue strangers -- an affirmative duty to remove third parties’ defamatory statements about others. And it certainly did not want a service provider’s efforts to protect a stranger’s reputation to backfire by suddenly creating liability for everything the service provider failed to remove. So, like every state legislature has done for off-duty medical personnel who act as good Samaritans, Congress in 1996 created a law saying that good faith efforts to filter offensive or defamatory material do not create an affirmative duty to remove such material and do not open them up to liability. For good measure, the statute also laid down a basic rule that there is no liability simply for being the conduit of what others have posted or for failing to remove such postings from one’s own site, and it preempts any state law that does otherwise. The CDA thus ensures that states’ defamation law runs roughly parallel to duty-to-rescue doctrine in the common law of negligence as amended by good Samaritan statutes. Indeed, that is why “Good Samaritan” is in the title of CDA § 230(c).
Under the sway of a talented First Amendment bar and in an academic culture hostile to common law concepts, judges around the country have selected an entirely different and misguided interpretation of § 230(c). They read the statute as, in effect, an abrogation of libel law’s classic republication rule, which states that a person who republishes a defamatory statement is liable as if she were the one who first said it. According to the overwhelmingly dominant interpretation of courts today, once someone says something defamatory, anyone who reposts it enjoys complete immunity from all state and federal law, even if the republisher knows the statement to be false and defamatory. Those academics who have rejected this interpretation tend to swing to the other extreme, advocating that website owners who have notice of a defamatory posting should be liable for failure to remove it. This too misses the point of the statute’s text. Through a detailed examination of libel doctrine and a close analysis of the case (Stratton Oakmont v. Prodigy) that generated the development of a protective federal statute, the article displays the correct reading of the statute and the importance of retaining a robust version of the republication rule online.
Friday, March 9, 2018
As a reminder, the 4th Annual Civil Procedure Workshop due date is quickly approaching. The flyer is here: Download Civil Procedure Workshop Call For Papers.2018
Friday, February 9, 2018
The Fordham Law Review is hosting a symposium on Friday, February 23. Speakers are: Mark Behrens, John Beisner, Andrew Bradt, Stephen Burbank, Scott Dodson, Howard Erichson, Sean Farhang, Jonah Gelbach, Maria Glover, Deborah Hensler, Alexandra Lahav, and Judge Lee Rosenthal. From the announcement:
In the first year of the Trump presidency, several litigation reform bills passed the House of Representatives. The fate of these bills remains uncertain, but the set of issues they raise will not disappear anytime soon. Legal reform advocates see an opportune moment to pursue an aggressive reform agenda, while critics view the bills as threats to civil justice. In addition, the Trump administration has been at the center of a swirl of litigation, raising issues about the role and processes of civil justice. This one-day symposium will address the prospects of civil litigation reform in the Trump era, taking seriously both the threat to the justice system and the opportunities for improving the litigation process.
Monday, January 29, 2018
The 4th annual Civil Procedure Workshop will be held at Stanford on November 9-10, 2018. Confirmed speakers include Judge Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. More information, and a call for papers, is available here: Download Civil Procedure Workshop Call For Papers.2018
Saturday, January 27, 2018
In case you could not join is in San Diego earlier this month, the podcast from the Torts Section's meeting is here:
(You will need to log in with your AALS username and password.)
Thursday, January 4, 2018
I hope to see many of you tomorrow at the Torts and Compensation Systems Section's program at the Annual Meeting. The program is Friday, January 5 from 1:30-3:15. We will do three things:
1. Present the William L. Prosser Award: Mike Rustad will introduce the 2018 winner, Marshall Shapo.
2. Panel presentations on "The Role of History in Tort Theory": Speakers are Martha Chamallas, Don Gifford, John Goldberg, and Ted White. Unfortunately, John Witt is not able to speak. The panel will take questions from the audience.
3. Elect the 2018-19 Executive Committee: The slate is Chair: Stacey Tovino; Chair-Elect: Adam Scales; Secretary: Scott Hershovitz; Treasurer: Mary Davis; Members: Tim Lytton and Nora Freeman Engstrom.
Thursday, September 21, 2017
Steve Sugarman has posted to SSRN Torts and Guns. This piece is an expansion of his remarks at last year's AALS Torts Section panel and will appear in volume 10:1 of the Journal of Tort Law. The abstract provides:
When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCCA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.
Tuesday, September 12, 2017
AALS Torts & Compensation Systems Section
January 5, 2018; 1:30 pm - 3:15 pm (Register here)
The Role of History in Tort Theory
Claims about the nature of tort law are often coupled with historical claims. Thus, many mid-twentieth century proponents of an expansive, compensation-oriented tort law argued strict liability was prevalent under the common law writ system. What is the purpose of such appeals to history? Are they necessary to tort theory, or merely tangential? Does the importance of history depend on whether the theory is descriptive or normative? A panel of experts takes up these issues and wrestles with the role of history in theorizing about tort law.
Speaker: Martha E. Chamallas, The Ohio State University, Michael E. Moritz College of Law
Speaker: John C.P. Goldberg, Harvard Law School
Moderator: Christopher J. Robinette, Widener University Commonwealth Law School
Speaker: G. Edward White, University of Virginia School of Law
Speaker: John F. Witt, Yale Law School
The 2018 Prosser Award will be presented to Marshall S. Shapo, Northwestern University Pritzker School of Law .
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.