Wednesday, April 11, 2012
For those of you who still haven't firmed up your summer plans, consider traveling to Berkeley during June 8-12. Torts is a focus of this year's AALS Mid-Year Meeting; it includes a "Workshop on Torts, Environment and Disaster." The planning committee includes Laura Hines, Douglas Kysar, Bob Rabin, Tony Sebok and Lisa Grow Sun. The speakers are an all-star cast. The brochure is here. Still not convinced?
Why Torts Law Teachers Would Attend? Tort scholarship and tort practice has been concerned with large-scale losses since the advent of the class action. Recent events, such as the attacks of 9/11 and the BP oil spill, have illustrated that the tools of aggregate litigation may not be enough to handle the job of ascertaining both responsibility and compensation after a disaster. The Torts and Compensation Law Section will take advantage of its joint meeting with the Environmental Law Section to provide a fresh look at the special problem that disasters pose for tort law in the 21st Century. The topics covered by the torts portion of the joint meeting will include whether tort law should be limited in times of disasters, the role (if any) of tort principles in the design of public compensation and private settlement funds, and the relationship between tort and insurance law in times of disaster. At the end of the program there will be a session on the incorporation of issues relating to disaster in the torts curriculum. The program will provide torts and insurance scholars of all levels of seniority with new insights into their own research and teaching. --CJR
Why Torts Law Teachers Would Attend?
Tort scholarship and tort practice has been concerned with large-scale losses since the advent of the class action. Recent events, such as the attacks of 9/11 and the BP oil spill, have illustrated that the tools of aggregate litigation may not be enough to handle the job of ascertaining both responsibility and compensation after a disaster. The Torts and Compensation Law Section will take advantage of its joint meeting with the Environmental Law Section to provide a fresh look at the special problem that disasters pose for tort law in the 21st Century.
The topics covered by the torts portion of the joint meeting will include whether tort law should be limited in times of disasters, the role (if any) of tort principles in the design of public compensation and private settlement funds, and the relationship between tort and insurance law in times of disaster. At the end of the program there will be a session on the incorporation of issues relating to disaster in the torts curriculum. The program will provide torts and insurance scholars of all levels of seniority with new insights into their own research and teaching.
Tuesday, April 10, 2012
Wednesday, March 21, 2012
Geoff Rapp (Toledo) has posted to SSRN Torts 2.0. The abstract provides:
In this Symposium Essay, I analogize the American Law Institute's Restatement (Third) of Torts to "Web 2.0." The story of the Third Restatement and its progenitors bears a remarkable resemblance to the great technological revolution of the last century's end: the World Wide Web. Web. 1.0, the first generation of internet activity, treated users as passive. Web 2.0, by contrast, is organic and allowes user preferences to drive site development.
Like Web 2.0, the Third Restatement embraces the "architecture of participation" in the development of tort law. Instead of a top-down approach, ala Web 1.0 and the Second Restatement of Torts, the Third Restatement's embrace of a flexible and open-ended formulation of key tort principles encourages judges and juries to play a participatory role in developing the law of torts.
Wednesday, March 14, 2012
AALS has posted the podcasts from the Annual Meeting. Former Chair of the Torts & Compensation Systems Section Mike Rustad planned and moderated the panel "Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory." One Torts Prof said it was the best torts panel he had heard in nearly 30 years of Annual Meetings.
After Mike brought the meeting to order, Ben Zipursky nominatedJudge Richard Posner for the Prosser Award. Judge Posner was unable to attend, but Mike read a letter from Judge Posner accepting the award. The panelists then spoke in the following order: John Goldberg, Ben, Judge Guido Calabresi, Martha Chamallas, and me. The presentations were terrific and I had the best seat in the house--literally inches from the speakers.
The Indiana Law Journal will publish the papers of the panelists--and a piece from Judge Posner--early in 2013. The podcast is here. I tried to upload the podcast, but it was too large. You will need to enter your e-mail address and AALS password. Then, you will have to scroll down to the appropriate podcast.
Thursday, March 1, 2012
As I mentioned yesterday, kudos to the students of the Federal Courts Law Review here at the Charleston School of Law for the Mass Torts in the Federal Courts symposium last week. In addition to the keynote address by Ken Feinberg and remarks by Judge Corodemus, the day included three lively panel presentations.
Panel One focused on Preemption. Moderated by my colleague, Bill Janssen, the panel featured (left to right) Jim Beck (Drug & Device Blog/Dechert), Deepak Gupta (Senior Counsel, Consumer Financial Protection Bureau), and Cathy Sharkey (NYU). Beck focused on the presumption against preemption and pointed out the Supreme Court's inconsistency on the doctrine. Beck termed the presumption a "judicial football," and noted that Justice Kennedy holds the "key vote" on the issue. Gupta provided a consumer protection viewpoint, and noted that agencies rely on the tort system to supplement and inform the agency's work. Sharkey pointed out the "absurdity" of the Court's rulings in Wyeth v. Levine and Pliva v. Mensing: If you take the generic version of a drug, preemption applies, but if you take the brand name version of the same drug, preemption does not apply. Sharkey advocated a new framework for the Court to view the preemption question focusing on agency consideration: whether the governing agency has paid particular attention to the risk of the plaintiff's injury should control the premption question.
I moderated Panel Two on "Aggregation and Mass Torts." Sheila Birnbaum is speaking in the photo, while seated left to right are myself, Timothy Eble, Alexandra Lahav (Connecticut) and Linda Mullenix (Texas). Eble and Lahav focused on the current litigation system, while Mullenix and Birnbaum addressed the fund approach. Eble focused on settlement class actions and presented a case study involving a medical monitoring settlement class action. He argued that the settlement class is an appropriate use of Rule 23. Lahav discussed the tension between individualism and efficiency in the debate over how to adjudicate mass torts, and asserted that a third value was missing from this discussion: equality. Responding to Ken Feinberg, Mullenix argued that the fund approach is not "sui generis," but increasingly the chosen method for resolving mass torts. Her presentation focused on the voluntariness of a plaintiff's election of remedies under a fund system, and suggested three solutions to combat what she argued was uninformed consent. Her solutions included provision of pro bono counsel to fund claimants, bar association counseling of fund claimants, and judicial invalidation of fund award's based on lack of informed consent. Birnbaum agreed that we are "going to have lots and lots of funds." In response to Mullenix, Birnbaum pointed out that most of the 9/11 claimants had counsel and discussed her work with the 9/11 litigants as well as with the new 9/11 Fund claimants. Birnbaum asserted that the fund approach can provide "more justice" than litigation and criticized the expense and delay involved in the tort system.
The final panel considered Ethical Issues Surrounding Fees and Settlements in Mass Torts. Nathan Crystal (Charleston) moderated the panel, with presentations by (left to right) Lynn Baker (Texas), Beth Burke (Richardson Patrick), John Beisner (Skadden), and Morris Ratner (Visting, Harvard/Professor-Elect, UC Hastings). Burke discussed aggregate settlements under Model Rule of Professional Responsibility 1.8, and the use of a point-based allocation system as opposed to a dollar-based system. Ratner addressed a new phenomena - trial courts relying on the ethical rules to impose caps on attorneys' fees in non-class settlements. He argued that the ethics rules do not provide the right guidance to fill this procedural gap, and further that incorporating the ethical rules in this fashion imposed a cost on the system. Beisner proposed that the ethics rules should be strengthened to better address conflicts of interest at the outset of mass tort litigation. In response to Ratner, Beisner suggested that courts felt a need to do something about fees that were perceived to be too high. Finally, Baker also considered the trend of judges imposing caps on fees in non-class actions, and asked whether the plaintiffs' attorney ethically may challenge the cap where the court sua sponte has now created a conflict of interest between the attorney and her client.
My thanks to all the participants for a wonderful conference.
Wednesday, February 29, 2012
Congratulations to the students of the Federal Courts Law Review for a wonderful symposium last Friday, February 24, 2012, on "Mass Torts in the Federal Courts." In today's post, I will recap the two individual presenters: Ken Feinberg and the Honorable Marina Corodemus (ret.).
Ken Feinberg gave the keynote address. His remarks focused on his work with the 9/11 Fund as well as the Gulf Coast Claims Facility. Feinberg noted five options to adjudicating mass torts: (1) Rule 23 class actions, (2), MDLs, (3) regional consolidation, (4) bankruptcy by the defendant, and (5) individual litigation of each case. Feinberg expressed skepticism that Rule 23 permitted aggregation of mass torts. While acknowledging that MDLs worked for mass torts, he pointed out that MDLs only capture federal cases. The downside to regional consolidation, according to Feinberg, was that it did not provide truly mass resolution. Finally, he asserted that bankruptcy was a "draconian way" to achieve mass resolution. He argued that the 9/11 Fund and the Gulf Coast Claims Facility were both sui generis and challenged the audience (and other speakers) to address three questions: (1) Are the federal courts receptive to mass tort litigation? (2) What legal challenges to do mass torts confront in the federal courts? and (3) What is the alternative to adjudicating mass torts in the federal courts? Audience questions raised the delegation issue inherent in the fund approach: is it a good idea to delegate all of that authority to one person to resolve mass tort claims including the amount of payment?
The Honorable Marina Corodemus (ret). shared "A View from the Bench" based on her perspective as New Jersey's sole mass torts judge for over ten years. Judge Corodemus discussed her experiences in trying to coordinate mass tort cases with federal judges handling MDLs as well as other state court judges. She concluded by identifying two problems for the future: (1) the increasing number of mass tort claims and (2) the shrinking budgets of the state court system.
In tomorrow's post, I will describe the three panel presentations.
Monday, February 6, 2012
Keith Hylton (Boston University) has posted to SSRN New Private Law Theory and Tort Law: A Comment. The abstract provides:
This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It was almost surely not an effort to set out a nonconsequentialist theory of tort law. While I agree with some of the goals of the new private law movement, much work remains to be done, within the methodological approach championed by Zipursky, in constructing a rigorous theoretical framework.
Wednesday, February 1, 2012
Last year, Rutgers-Camden became one of the few law schools to have 2 or more insurance experts on faculty when it hired Adam Scales (Jay Feinman has taught there for years). Now the school continues its focus on insurance by hosting "Bad Faith and Beyond" on February 29th. In addition to Adam and Jay, speakers include: Ken Abraham, Tom Baker, Robert Jerry, Ellen Pryor, Doug Richmond, and Peter Siegelman. Details are here.
Tuesday, January 24, 2012
The Federal Courts Law Review at the Charleston School of Law is sponsoring a symposium on "Mass Torts in the Federal Courts" on February 24, 2012, in Charleston.
Ken Feinberg will be giving the keynote address. Panels will address preemption, aggregation issues in mass torts, and ethical issues surrounding fees and settlements in mass tort cases. Speakers include Lynnn Baker (Texas), Alexandra Lahav (UConn), Linda Mullenix (Texas), Morris Ratner (Hastings), and Cathy Sharkey (NYU).
Registration is now open: Download Mass Torts 2012 Registration Form
A copy of the agenda is also available: Download SymposiumMailer-1-1
Wednesday, December 21, 2011
Alan Calnan (Southwestern) offers the following post on civil recourse theory:
At the upcoming AALS conference, the Torts and Compensation Section will host a panel discussion on civil recourse theory entitled: Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory. In short, civil recourse theory holds that Torts is a system of constitutionally mandated (due process) rights permitting victims to sue for remedies to rectify legal wrongs. Although the proponents of this theory have elaborated its features in copious detail, they have yet to address several questions essential to its sustainability. Four questions, in particular, create especially troublesome quandaries. I pose these quandaries below in the hope of stimulating thought and discussion at January’s conference.
- How can civil recourse theory be viewed as an accurate, complete, and unified description of tort law when it ignores both the numerous instrumental (nonwrongs-based) theories of strict liability, and the pervasive instrumental (nonwrongs-based) considerations actively shaping and transforming wrongs-based theories like negligence?
- How can the right to sue (take recourse) in tort be premised on the existence of a legal wrong if (1) the determination of a legal wrong typically is not made until long after the action is filed, and (2) often (in at least 50% of tried cases) results in a finding that no wrong in fact was done?
- How can tort law best be understood as empowering victims to rectify civil wrongs (as stated in the panel summary) when the very purpose of both the law’s substance (which specifies things the plaintiff MUST prove to rectify a wrong) and its procedure (which specifies things the plaintiff MUST do to pursue such rectification) is to create impediments for the party seeking recourse and protections for the party being sued?
- How does the “constitutional” right to civil recourse square with the historic due process right to protect citizens from arbitrary state action, including presumably the state’s action of taking sides in a private dispute by hosting and facilitating one party’s unproven, liberty-infringing (civil) attack against another?
Friday, November 25, 2011
Friday, November 18, 2011
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.
Thursday, October 27, 2011
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
 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)
Tuesday, October 18, 2011
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.
Monday, October 17, 2011
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.
Thursday, October 13, 2011
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.
Wednesday, September 14, 2011
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.
Friday, September 9, 2011
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.
Wednesday, September 7, 2011
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:
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
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.