TortsProf Blog

Indiana Law Journal to Publish AALS Torts Panel Pieces

The Indiana Law Journal will publish, in its volume 88, the articles written in conjunction with the AALS Torts & Compensation Section panel ("Twenty-First Century Tort Theories:  A New Audit of Civil Recourse Theory") at the 2012 Annual Meeting in D.C.

--CJR

Torts at AALS

The Torts & Compensation System section of AALS has announced its program for the 2012 conference, and it features our very own Chris Robinette.  Here's the description:

9:00 AM - 12:00 PM January 5
[4150] Section on Torts and Compensation Systems
Maryland Suite A, Lobby Level, Washington Marriott Wardman Park Hotel
 
Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory
 
Moderator: Michael L. Rustad, Suffolk University Law School
Speakers: Guido Calabresi, Judge, U.S. Court of Appeals, 2nd Circuit, New York, NY
Martha E. Chamallas, The Ohio State University, Michael E. Moritz College of Law
John C. Goldberg, Harvard Law School
Christopher J. Robinette, Widener University School of Law
Benjamin C. Zipursky, Fordham University School of Law
 
Recently, civil recourse theory has emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers an elegant means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. This panel will explore the implications of paring down tort law to civil recourse. Professors Goldberg and Zipursky, who have been pioneers in developing civil recourse theory, will present the concepts and methods of this theory. Judge Calabresi, the 2010 Prosser Award recipient, will explore the implications of deemphasizing loss spreading and deterrence. Professor Chamallas will examine civil recourse theory drawing upon her work on how race, gender, and class interrelate with tort law developments. Finally, Professor Robinette will address the question of whether civil recourse can unify the law focusing on whether it is a complete account. Panelists will also address whether tort law should have a public
purpose beyond civil recourse.
 
Business Meeting at Program Conclusion.

--BC (who will, alas, be in Orlando to run the Disney Half Marathon that weekend)

Judge Posner to Receive 2012 Prosser Award

From the AALS Torts and Compensation Section's Executive Committee: 

 The William Prosser award will be presented at our Section meeting on January 5, 2012 at 9-12 pm.  The Prosser Award was created and presented to its first recipient, Leon Green, in 1974. Later awardees included Fleming James Jr., Wex Malone, W. Page Keeton, John Wade and Willard Pedrick.  More recent honorees include Dan B. Dobbs, Guido Calabresi, Oscar Gray, and Robert Rabin.

 

 When Wex Malone bestowed the first Prosser award upon Leon Green, Malone remarked that the award “is designed to recognize a lifetime of truly outstanding contribution to the world of Torts.”

This year’s honoree – the Hon. Richard A. Posner, Judge on the United States Court of Appeals for the Seventh Circuit and Senior Lecturer in Law at the University of Chicago Law School-has authored academic works as well as judicial opinions that have reshaped the way we think and teach about tort law.   One nominator wrote that “Judge Posner returned Torts to its special position as one of the most exciting, intellectually challenging, and magnetic fields of study in all of the legal academy.” Judge Posner’s writings provide law teachers and scholars with an analytical framework to approach many tort law issues.   A nominator mentioned how Posner developed a grand theory of tort law beginning with his 1972 article, “A Theory of Negligence.” Judge Posner’s judicial opinions and academic writing have reshaped the way torts teacher teach and think about setting the standard of care.   

 

 First year law students learn the law and economics perspective on tort law through appellate cases authored by Judge Richard Posner.  A nominator described Judge Posner as having the “Holmesian gift of utilizing the sharp tools of a brilliant academic mind to craft insightful and eloquent judicial opinions.”

           

 The Executive Committee would like to extend our congratulations to our respected colleague whose doctrinal and theoretical work has been so influential.  We would also like to acknowledge his role as a mentor to younger torts scholars and teachers.

  

--CJR

Gender & Torts Scholarship

Bridget Crawford posts, at Feminst Law Professors, asking where the women are in a recent torts symposium published by the William Mitchell Law Review (in which one out of fourteen participants is female), and links to a 2009 post from Ann Bartow noting another symposium with zero female participants.

--BC

"New Private Law" at Harvard

Next Friday, Harvard is hosting a conference on the New Private Law.  TortsProf John Goldberg is leading a roundtable discussion.  The torts portion of the conference is:

Panel #4 – Tort Law: 12:10 – 1:00

Presenter: Benjamin Zipursky, Fordham University School of Law

Moderator: Arthur Ripstein, University of Toronto Faculty of Law

Commentator: Keith Hylton, Boston University School of Law (Visiting Professor, Harvard Law School)

Commentator: John Oberdiek, Rutgers School of Law – Camden

The full schedule is available from Larry Solum at LTB.

--CJR

AALS Torts & Compensation Section Panel on Civil Recourse Theory

The 2012 AALS Annual Meeting Torts & Compensation Section meeting will include a panel on civil recourse theory scheduled for Thursday, January 5th at 9:00 a.m.  

Twenty-First Century Tort Theories:  A New Audit of Civil Recourse Theory

Recently, civil recourse theory has emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers an elegant means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. This panel will explore the implications of paring down tort law to civil recourse.  John Goldberg and Benjamin Zipursky, who have been pioneers in developing civil recourse theory, will present the concepts and methods of this theory. Guido Calabresi, the 2010 Prosser Award recipient, will explore the implications of deemphasizing loss-spreading and deterrence. Martha Chamallas will examine civil recourse theory drawing upon her work on how race, gender, and class interrelate with tort law developments. Finally, Christopher Robinette will address the question of whether civil recourse can unify the law focusing on whether it is a complete account.  Panelists will also address whether tort law should have a public purpose beyond civil recourse.

 

Speakers Speaker: Guido Calabresi, Yale Law School U.S. Court of Appeals, 2nd Circuit Speaker: Martha E. Chamallas, The Ohio State University Michael E. Moritz College of Law Speaker: John C.P. Goldberg, Harvard Law School Speaker: Christopher J. Robinette, Widener University School of Law Moderator: Michael L. Rustad, Suffolk University Law School Speaker: Benjamin C. Zipursky, Fordham University School of Law --CJR

Call for Papers/Conference Announcement: "The Paisley Snail"

An international torts conference will be held in May 2012 in Scotland celebrating the 80th anniversary of Donoghue v. Stevenson.

University of the West of Scotland, Renfrewshire Law Centre, the Law Society of Scotland and the Faculty of Advocates, will host the Major International Conference of the decade in Paisley, the locus delicti, to examine, discuss and celebrate eighty years of the law of tort, negligence and delict.

What was the decision in this most famous case of all time? Why was it so important? How has the law developed since then? What does the future hold? And was it really a snail in the bottle?What was the decision in this most famous case of all time? Why was it so important? How has the law developed since then? What does the future hold? And was it really a snail in the bottle?

The call for papers has been extended to November 1, 2011. Submissions are accepted electronically via the conference website.

- SBS

Journal of Tort Law: Tort and Property

 The second of three issues of the Journal of Tort Law featuring papers presented initially at a 2010 conference on Property and Tort at the U.S.C. Gould School of Law is now available:  http://www.bepress.com/jtl/

The conference was organized by Professors Gregory Keating and Benjamin Zipursky, and sponsored by U.S.C., Fordham, and Harvard Law Schools.   The papers published in this issue are listed below: 

Private Law Theory and Corrective Justice in Trade Secrecy
Eric R. Claeys

Property and Precaution
Lee Anne Fennell

Is Public Nuisance a Tort?
Thomas W. Merrill

Modularity and Morality in the Law of Torts
Henry E. Smith

--CJR

Public Health Law Section Call for Papers

From an e-mail I received from Temple's Scott Burris:

 

PHLR invites submission of abstracts for oral presentation at the PHLR Annual Meeting in New Orleans, January 18-20, 2012. Abstracts should be no more than three pages in length and should focus on public health law research related to communicable diseases, non-communicable diseases, or injury prevention. Visit phlr.org for more information on the Request for Abstracts.

 

--CJR

Southeastern Law Scholars Conference

I am delighted to be involved again organizing the second Southeastern Law Scholars Conference on October 28-29, 2011, at the Charleston School of Law. This regional conference will bring together junior law school faculty to present published papers or works-in-progress across all disciplines within the law. The conference is open to all junior law faculty (one to seven years teaching experience) at law schools in the southeastern United States. To ensure an atmosphere conducive to feedback, space is limited to twenty participants.

The conference will begin with dinner for all participants on Friday, October 28, 2011. On Saturday, October 29, 2011, conference participants will present either a completed paper or work-in-progress, and comment on the papers and ideas presented by others. As the host school, the Charleston School of Law will provide dinner on Friday, October 28, as well as breakfast and lunch on Saturday, October 29. There is no registration fee. Participants, however, are responsible for their own travel expenses.

To participate in the conference, please email me by Friday, September 29, 2011. Please note whether you will be attending dinner on Friday, October 28, in your email. In addition, please include the title of your presentation topic. A short abstract would also be helpful.

- SBS

Conference Announcement: Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy

Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy

Hosted by The Faculty of Law at the University of Western Ontario

London, Ontario, Canada

July 17-20, 2012

The Faculty of Law at the University of Western Ontario is pleased to be hosting the Sixth Biennial Conference on the Law of Obligations. The conference will bring together leading scholars in tort, contract, equity and unjust enrichment from throughout the common law world.

The theme of the conference is "Challenging Orthodoxy." We have prepared an academic program of over 60 speakers in which professors, graduate students and eminent practitioners will challenge established common law rules and suggest new approaches to both old and emerging problems. The plenary speakers are Chief Justice Beverley McLachlin and Justice Thomas Cromwell (Supreme Court of Canada), Melvin Eisenberg (Berkeley), John Goldberg (Harvard), Andrew Robertson (Melbourne), Ernest Weinrib (Toronto), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).

The Obligations Conference originated at the University of Melbourne in 2002, and has since become one of the leading private law conferences in the common law world. The biennial conferences have been held at the University of Melbourne, the University of Queensland, the National University of Singapore and the University of Oxford.

For more information on the Conference and to register please visit: http://www.law.uwo.ca/Conferences/Obligations6/index.html.

Lessons of 9/11 for Mass Torts at Cardozo

Tony Sebok and Myriam Gilles at Cardozo have set up a conference on the 9/11 victim compensation fund and its relevance for mass torts.  The conference is September 12, 2011 at Cardozo and begins at 2:30 p.m.  Kenneth Feinberg is the keynote speaker; other speakers include Sheila Birnbaum, John Goldberg, Marc Moller, Linda Mullenix, Roger Parloff, Bob Rabin, and Judge Jack Weinstein.  The program is here.

--CJR

Abraham on Strict Liability in Negligence

Ken Abraham (Virginia) has posted Strict Liability in Negligence.  The abstract provides:

This Article, written for a Symposium in honor of Robert Rabin, argues that some forms of liability imposed in negligence are more like strict liability than negligence. For example, under the objective standard of negligence, liability may be imposed even when the defendant was not capable of exercising what counts as reasonable care. Similarly, under certain circumstances reasonable care requires perfect compliance with precautionary requirements. Finally, the “thin-skull” rule imposes liability on a defendant who negligently risks harm to a foreseeable plaintiff even if the amount of harm this plaintiff suffers is far in excess of what was foreseeable. In the first example the defendant is liable even if he does his best. In the second example the defendant is liable unless he achieves perfect compliance. And in the third example the defendant is liable for something he could not foresee. Imposing liability for negligence in these situations resembles strict liability. At the least, these forms of negligence liability certainly are “stricter” than many others. The Article examines the rights-based and instrumental roles played by these forms of liability in reflecting norms of responsibility, reducing information and error costs, influencing activity levels, and promoting the insurance of losses.

The analysis has two implications. The first is that negligence is not the pure type of liability that it is sometimes thought to be. The existence within negligence of several forms of liability that are strict, or at least “stricter” than the core negligence paradigm, weakens the claim that negligence liability may have to moral superiority over strict liability. I argue that part of the reason negligence has maintained its dominance of accident law, and part of the reason strict liability has not become more dominant, is that negligence has incorporated stricter liability within it. The second implication of my analysis is that the normative character of tort liability is more complex, and perhaps more ambiguous, than either rights or instrumental theories standing alone can easily capture. One of the most interesting things about the instances of strict liability in negligence is that, whether we call them strict liability or deny them this status, there seems to be widespread agreement that they are normatively attractive. This confluence of support on the merits for doctrines whose status itself is contested suggests that tort law doctrines may need to satisfy both instrumental and rights-based concerns in order to be stable and persistent. A negligence system that purports to condition liability on the commission of wrongs, but also sometimes imposes stricter liability for conduct that is not so clearly blameworthy, would seem to be influenced in practice by the same instrumental considerations that support the imposition of strict liability. Conversely, instrumental justifications for tort doctrines are likely to be unpersuasive when these doctrines do not also satisfy rights-based concerns. Whether or not our system of accident law has mixed “goals,” then, it certainly appears to be subject to mixed side-constraints.

--CJR

 

Gardner on Civil Recourse Theory

John Gardner (Oxford) has posted to SSRN Torts and Other Wrongs, his contribution to the Florida State civil recourse symposium.  The abstract provides:

In this paper, a draft contribution to a symposium on the work of John Goldberg and Ben Zipursky, I take Goldberg and Zipursky to task for failing to distinguish the law of torts adequately from some neighbouring areas of private law. I focus on their equivocation on the question of whether reparative (a.k.a. compensatory) damages have a special place in the law of torts. I suggest that this equivocation is bound up with Goldberg's and Zipursky's wish to maintain what I argue to be an artificial rivalry between their 'civil recourse' explanation of tort law and the 'corrective justice' explanations associated with Weinrib, Coleman, and others. I suggest that 'civil recourse' and 'corrective justice' each capture part of the truth about tort law. I end by addressing briefly some doubts about whether this is a truth worth capturing.

--CJR

Ripstein on Civil Recourse Theory and Corrective Justice

Arthur Ripstein (Toronto) has posted to SSRN Civil Recourse and Separation of Rights and Remedies, his contribution to the Florida State civil recourse symposium.  The abstract provides:

In developing their Civil Recourse theory of tort law, John Goldberg and Benjamin Zipursky seek to separate Civil Recourse from Corrective Justice by showing that tort law does not work in the ways in which corrective justice theory says that it must. The strategy of separation, in turn, rests on a separation between wrongs and remedies, a separation between ideas of risk and ideas of ordinariness, a separation between abstract characterizations of rights and contingent social norms, and, finally, a separation between a wrong done against the plaintiff and her power to exact a remedy. I argue that none of these separations can be made.

--CJR

Deepwater Horizon Symposium at Roger Williams

Although not strictly a torts conference, Roger Williams is hosting a symposium relating to the Deepwater Horizon oil disaster.  George Conk (Fordham) has the details at Torts Today.  On the torts front, George will be speaking, as will tomorrow's Guest Blogger, Tom Galligan.  Roger Williams's torts-scholar dean, David Logan, will also be present and moderating.

--CJR

"Festschrift for Robert Rabin"

The topic of the 2011 Clifford Symposium on Tort Law and Social Policy is a "Festschrift for Robert Rabin."

Bob Rabin is one of the towering figures of American tort law. His work has influenced the way we think about virtually all the critical questions confronted by tort scholars. His writings on the tobacco controversy, alternative compensation systems and tort theory have powerfully affected discourse on these topics. His casebook, with Franklin and Green, has served as the introduction to tort law for thousands of students. In 2008, Bob was the recipient of the William Prosser Award for scholarship, teaching and service from the AALS Section on Torts and Compensation. Bob also has been a great friend to the Clifford Symposium. He has appeared on the program more than a half dozen times and has contributed seminal pieces about enabling torts (49 DePaul Law Review), the tobacco wars (51 DePaul Law Review), the September 11th Compensation Fund (53 DePaul Law Review), and noneconomic loss (55 DePaul Law Review). It is with the greatest pleasure and pride that we seek to honor our dear friend and colleague, Bob Rabin, at the 2011 Clifford Symposium on Tort Law and Social Policy.

The program includes an amazing line-up of torts scholars.  Session I, Reflections on Tort Theory, includes presentations by Mark Geistfeld, John Goldberg and Ben Zipursky, and Stephen Sugarman.   Session II, Tort Law and the Administrative State, includes presentations by Ellen Pryor, Peter Schuck and Cathy Sharkey.   The symposium continues on Friday with a panel on Perspectives on Compensations Schemes with presentations by Nora Engstrom, Myriam Gilles and Michael Green.  The final panel, Perspectives on Liability Rules, includes presentations by Ken Abraham, Greg Keating, and Tony Sebok.

Registration is free.  The symposium will take place April 14-15, 2011, at DePaul.

- SBS

 

 

Cupp on Exporting Tobacco Litigation

Richard Cupp (Pepperdine) has posted to SSRN another piece from Pepperdine's symposium last spring, International Tobacco Litigation's Evolution as a United States Tort Law Export:  To Canada and Beyond?  The abstract provides:

In the late 1990’s, the states’ healthcare reimbursement lawsuits against the tobacco industry were settled for approximately $246 billion. In the wake of this enormous settlement, many similar lawsuits were initiated in other nations or by other nations. Most of these early healthcare reimbursement lawsuits failed. However, in 2005, the World Health Organization Framework Convention on Tobacco Control was finalized by over 150 nations, and today has been ratified by 168 nations. The Framework encourages nations to consider tort litigation against tobacco sellers as a way to limit tobacco usage. Canada’s provinces have been particularly aggressive in seeking to use healthcare reimbursement lawsuits inspired by the United States litigation as a tool for tobacco control. This Article considers ways in which United States-style litigation against tobacco companies might be both helpful and hurtful for other nations.

--CJR

Rustad on Civil Recourse Theory

Mike Rustad (Suffolk) has posted to SSRN Torts as Public Wrongs from last spring's Pepperdine symposium.  The abstract provides:

This Article is a rejoinder to the civil recourse theorist's claim that tort law will be better served by retreating to the philosopher's prefecture of private wrongs. A subsidiary goal of this Article is to refute John Goldberg's claim that my sociologically-inspired theory of torts as public wrongs serves the interests of tort reformers rather than American consumers. In a nutshell, civil recourse theory is "tort reform in disguise," not the concept of torts as fulfilling wide-ranging purposes such as the social control of corporations. If judges adopt civil recourse theory, they will be less inclined to recognize new causes of action and plaintiff classes deferring instead to legislatures. Tort law is the multi-tasker of the common law and does far more than redress private wrongs.

Tort law not only redresses private wrongs, it also advances general deterrence through social control. The contemporary Toyota sudden acceleration claims and the BP oil spill are examples of how tort law tackles collective injuries impacting the consuming public, the environment, and communities. While it is unclear what role tort law will ultimately play in redressing these collective injury cases, social interests will be relevant. This Article, which makes the case that tort law can and should redress public wrongs, unfolds in six parts. Part II introduces the idea of the teleological telescope and the deontological microscope illustrating their operation in sociological theory.

In this part of the Article, I explain how the grand theories of classical sociology were telescopic, but some modern theorists miniaturized their perspective to focus on the individual and the small group. Part III describes how modern tort theory has divided into competing camps based upon whether legal academics use a macroscopic or a microscopic approach. The basic distinction is that tort scholars use either a functional telescope (to study public wrongs) contextually or the philosopher's microscope to understand individual cases and controversies in an abstract way. The division between macrotort and microtort theories is the functional equivalent of how these approaches play out in classical and contemporary sociological theory. Torts have a micro aspect applicable to the pressing facts of the individual case and the relationships between the parties, but they also have macro features such as general deterrence and social control that fill in the interstices between criminal and civil law and resonate our collective beliefs.

Part IV comments on civil recourse theory's obscurantism and its lack of fit with the empirical reality of modern tort law's complexity. In this part of the Article, I discuss the civil recourse theorist's misguided attempt to reduce the multiplicity of American tort law to one single "true" quintessence. To me, it seems that the main problem with this pure theory of tort law is its separation from social context such as gender, race, social class, power, and social change. What is important to note here is that torts often redress public wrongs, beyond the interests of the immediate parties.

Part V gives my pluralistic account of torts as public wrongs. While the manifest function of tort law is civil recourse or compensation, its latent function is vindicating public wrongs. The latent function - the hidden face - of tort law is its public policy role addressing corporate misconduct from the bottom up rather than through a top-down government monolith. The key institution is the plaintiff in the role of private attorney general who seeks civil recourse but also fulfills a broader purpose of identifying and punishing reckless corporate defendants who had previously evaded the attention of the public authorities.

Part VI applies my sociological theory of public wrongs to the widespread problems created by dangerously defective software. The tort law lag in addressing defective software demonstrates the need to permit tort law to evolve to address social problems. Hence, the focus is how "we the people" need brawny tort remedies to address social problems in the information-based economy.

--CJR

Cyberbullying as IIED Claim?

New York Law Journal has an interesting article by Andrew S. Kaufam and Betsy D. Baydala, both of Kaufman Borgeest & Ryan in NYC.  The article analyzes the viability of a claim for intentional infliction of emotional distress based on allegations of cyberbullying.

Thanks to Lisa Smith-Butler for the link.

- SBS