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:
Monday, February 1, 2016
Thursday, January 14, 2016
Jay Feinman has posted to SSRN The Restatement of the Law of Liability Insurance as a Restatement. The abstract provides:
This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.
This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.
The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.
Monday, January 11, 2016
On Friday in New York, the Torts & Compensation Systems Section met; the Section: 1. presented the Prosser Award to Aaron Twerski; 2. conducted a panel on "MacPherson at 100;" and 3. elected a slate of officers for the coming year.
The chair, Tony Sebok, moderated the panel and presented the Prosser Award. In accepting the award, Twerski stated, "It's an incredible honor to be recognized by my colleagues to win this very prestigious award."
The panel consisted of John Goldberg & Ben Zipursky (presenting a paper together), John Witt, Franz Werro, and Anita Bernstein. Goldberg and Zipursky started the discussion by presenting three myths about MacPherson. The first myth: "Cardozo rejected privity because he embraced a nonrelational duty." In reality, Goldberg and Zipursky stated, a duty may be owed to an indefinite class of persons, but it is always a relational duty. The manufacturer owes care to those who will use its product without inspection, and who stand to be injured if the product is made without due care. The second myth: "Cardozo reached a sound result because he reasoned instrumentally, not doctrinally or morally." In reality, Goldberg and Zipursky argued that Cardozo's approach is not instrumental, but one of pragmatic conceptualism. Macpherson's rule is by far the better reading of the precedents, especially as interpreted against the background of prevailing mores. The question is "are users among those to whom manufacturers owe vigilance?" and not "will society benefit if manufacturers are subject to liability?" Third myth: "Cardozo partly effaced the line between negligence and strict liability." Instead, the focus in MacPherson is on duty and breach, but the focus in Greeman is on compensation and deterrence. Goldberg and Zipursky believe that the myths are problematic because they lead to conceptions of tort law that are problematic. A nonrelational conception of duty, they argued, slides easily into a liability rule conception of tort that overlooks the sense in which product manufacturers should regard themselves as duty-bound not to injure consumers. What should be understood as a responsibility comes to be understood as a mere potential cost. An instrumentalist approach--leads judges to analyze tort cases as calling for judicial policymaking, which in turn renders their decisions more vulnerable to overturning by the legislature (tort reform). Finally, if the difference between negligence and strict liability is overlooked, preemption of products liability law becomes more palatable and the special strengths and rationales for strict products liability law are at risk of being obliterated. Goldberg & Zipursky's message: It is mistaken to think that the way to be a progressive in tort law is to be an instrumentalist.
Next, John Witt presented an historical angle on MacPherson. He approached it by starting with a case decided five years prior: Ives v. South Buffalo Railway. In Ives, the New York Court of Appeals, speaking through William Werner, entertained the first constitutional challenge to workers' compensation. The court went through what Witt described as a "full-0n" discussion of the values at stake in the Constitution and held workers' compensation unconstitutional. The opinion was not well received; by the time of MacPherson only 2 judges remained from the Ives Court. Cardozo's opinion in MacPherson is internal to the doctrine and does not discuss "regulatory" criteria at all. This is especially striking given that automobile accidents at the time had become a significant issue and were being discussed in the same vein as industrial accidents had been before Ives. Witt wondered why Cardozo stuck to the internal approach. He offered several possibilities. One is that Cardozo was engaged in deception. He decided the case on different grounds than he used in the opinion. He realized he couldn't get away with an explicit statement (especially in light of the reaction to Ives) and so he deceived. A slightly different reason is that "purely legal" decisions have more durability. Thus, Cardozo stuck with the internal to preserve the holding for the long haul. Witt rejected these possibilities. He believes them inconsistent with Cardozo's character. In Witt's opinion, Cardozo's approach is based in a moral modesty. Commissions (like the Wainwright Commission for workers' compensation) will inevitably make mistakes. Cardozo, by not relying on such pronouncements, based his decision on more reliable, less grand, principles.
Franz Werro approached MacPherson from a comparative perspective. What influence did MacPherson have in Europe? Werro indicated MacPherson did not have much of an effect on the Continent (largely because it was not needed). It was, however, particularly important to a significant 1932 Scottish case (later adopted in English law by the House of Lords): Donoghue v. Stevenson, better known as the "Paisley snail" case. In that case, a woman was drinking a bottle of ginger beer (at a café in Paisley) when she discovered a decomposing snail in it. The woman sued the manufacturer directly and asserted a legal duty to, in essence, produce snail-free beer. The case established negligence-based liability by setting out general principles whereby one person owes a duty of care to another. The "neighbor principle" was based on whether harm was reasonably foreseeable. MacPherson served as a basis for the principles announced in Donoghue. Werro closed with 3 observations. First, he said it was striking for a civil lawyer to see how long it took the common law to recognize a general tort of negligence. He attributed this to the power of laissez-faire. Second, he noted the French and German civil codes have been far more generous. Third, he celebrated the adaptability of French law until World War II. Since that time, however, he noted tort lost its place to insurance schemes. Europeans trust regulation and insurance far more than Americans.
Finally, Anita Bernstein focused on the changes in society, and thus law, from the time of MacPherson until today. In a presentation entitled the "Reciprocal of MacPherson," Bernstein noted the holding of MacPherson was that care and vigilance were owed by an auto manufacturer. Although privity offered "comfort and care" to the manufacturer, the holding in MacPherson, coming during the Progressive Era, offered "comfort and care" to consumers. Modern law, however, is producing a shift toward obligations owed to an auto manufacturer. Bernstein referenced Geier (2000) (preemption limits design defect cases); Kumho Tire (1999) (making expert testimony for plaintiffs more costly and harder to find); and BMW v. Gore (1996) (restricting punies against auto manufacturers). She then noted the bailout of the big 3 auto manufacturers, which cost taxpayers roughly $9.26 billion. Moreover, tort reform, Bernstein suggested, extends the reciprocal. The emphasis has shifted from what is owed to consumers to what consumers owe potential defendants.
Papers from the panel will be published in the Journal of Tort Law.
The meeting concluded with the election of the Executive Committee for the year:
Chair: Leslie Kendrick; Chair-elect: Chris Robinette; Secretary: Stacey Tovino; Treasurer: Adam Scales; Member: Scott Hershovitz
Tuesday, January 5, 2016
Don't forget the Torts and Compensation Systems Section Panel this Friday at 1:30: "MacPherson at 100: Perspectives on its Influence and Meaning." Aaron Twerski will receive the Prosser Award at the beginning of the presentation.
Wednesday, December 23, 2015
Earlier this year the Rutgers Center for Risk and Responsibility hosted a conference on the ALI's Restatement of Liability Insurance (Tom Baker and Kyle Logue, Reporters). The Rutgers University Law Review has now published articles from the conference. Torts and liability insurance being intertwined, there is a strong representation of torts scholars in the lineup, including Ken Abraham, Mark Geistfeld, and Victor Schwartz.
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 (email@example.com). 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 firstname.lastname@example.org. 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, email@example.com, (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, firstname.lastname@example.org
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 email@example.com. 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 firstname.lastname@example.org 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.