Friday, May 24, 2013
Howard Erichson and Ben Zipursky of Fordham recently chaired a symposium on "Lawyering for Groups." Participants included Beth Burch, Kristen Carpenter, Sam Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, and Eli Wald. The papers are available at Mass Tort Lit Blog.
Thursday, April 25, 2013
The 2014 AALS Annual Meeting will feature a combined Torts and Compensation Systems and Insurance Sections presentation "On the Unavoidable Intersection of Torts and Insurance." Speakers include Tom Baker (Penn),Nora Freeman Engstrom (Stanford), and Kent Syverud (Wash. Univ. in St. Louis). If you would like to join this panel, there is a call for papers. The information is available over at the Faculty Lounge.
Monday, April 22, 2013
Last Tuesday, April 16, 2013, Widener University School of Law, the Widener Law Journal, and the Coalition for Litigation Justice, Inc. sponsored a day-long symposium, Perspectives on Mass Torts Litigation.
The line-up was spectacular! The first panel on Mass Tort Theory included Professor Michael Green (Wake Forest School of Law); Professor Deborah Hensler (Stanford Law School); Professor Linda Mullenix (University of Texas School of Law); and Professor Aaron Twerski (Brooklyn Law School). The panel was moderated by TortsProf's own Chris Robinette (Widener).
The second panel addresssed Emerging Issues in Mass Tort Practice. This panel included the Hon. Thurbert Baker (McKenna Long & Aldridge LLP; Atlanta, GA); John Beisner (Skadden Arps; Washington, DC); Tobias Millrood (Pogust Braslow & Millrood; Philadelphia, PA); and Victor Schwartz (Shook, Hardy & Bacon; Washington, DC).
One of the symposium's highlights was the luncheon address by the Hon. Eduardo Robreno (E.D. Pa.) on Federal Asbestos Litigation: Black Hole or New Paradigm? This fascintating talk provided a look at the current state of asbestos litigation and a glimpse of the future as well.
The third panel was on Keystone State Civil Justice Issues. The organizers used a neat format - essentialy a point-counterpoint by a plaintiff's lawyer and a defense lawyer. The fourth panel took us inside Asbestos-Related Bankruptcy Issues, and featured Professor S. Todd Brown (SUNY Buffalo Law School), and two practicing lawyers.
Bryon Stier (Southwestern) and I rounded out the day with a panel on Mass Tort Ethics.
My thanks to Chris and everyone at Widener for an outstanding conference. It was a honor to participate.
Wednesday, March 27, 2013
Geoff Rapp (Toledo) has posted to SSRN his contribution to Howard Wasserman's symposium, Suicide, Concussions, and the NFL. The abstract provides:
This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim.
Friday, March 15, 2013
I intended to blog this conference session-by-session starting yesterday, but a computer malfunction based on user error prevented it.
Session One (Introduction and Chapter One)
Marshall began the conference by summarizing the thesis of his book, drawn from his study of injury law that has led him to believe that it has some of the qualities of a constitution. He includes within injury law not only tort law, but also compensation systems like workers' comp and the 9/11 Victim Compensation Fund, and statutory safety regulation. Shapo said the injury law constitution "embodies the tensions" within the field. He pointed specifically to the tensions among efficiency and social and individual justice. He also focused on the themes of choice, responsibility, and safety.
Bob Rabin was a commentator. He praised Shapo for the use of a "wide-angle lens" on the subject. He said it was an ambitious undertaking and stated he was in basic agreement with Shapo. He noted, however, that he had a different focus. Rabin said that while Shapo looks at injury law and sees a coherent constitution-like structure, he sees a patchwork design. He noted the pragmatic and public policy constraints in each of the 3 areas of tort, compensation systems, and safety regulations.
Responding to comments, Shapo stated his work was more descriptive than normative and described the injury law constitution as a "series of battles with ebbs and flows." As Shapo acknowledges, the injury law constitution does not provide a direct measuring rod for statutes and judicial decisions as does the traditional American conception of a constitution. Based on that acknowledgement, comments and questions focused on the work done by his analogy to a constitution. To me, it seems the most likely use of the analogy is to present injury law in a broader context than tort alone. Additionally, Shapo's concept of the injury law constitution "embodying the tensions" is similar to the way the U.S. Constitution is viewed by many as providing a never-ending argument over government. Shapo offers an alternative phrasing, "a constitutive injury law," for those who might prefer it.
Session Two (Chapters Two and Seven on Power)
Shapo began the session by stating that behind many tort cases is a concern over checking power. In tort, he pointed to products liability, with its concern for the power of manufacturers, medical malpractice, IIED (with its focus on employment relationships and sexual harassment), and constitutional torts (a phrase he coined in a 1965 article), illustrating safety regulation, he pointed to OSHA, and for compensation systems, he pointed to workers' comp.
Cathy Sharkey began by stating that perhaps acting as a check on power was a further analogy to a constitution. She stated a theme of the book was a preference for decisions at the "trench level," jurors in many cases. She also questioned whether a concern with power would mean that tort should dominate contract in many instances. Finally, she discussed preemption and pushed Shapo to focus more on it.
Comments and questions focused on power relationships in settlement, between federal and state law, and between plaintiffs and plaintiffs' attorneys.
The evening concluded with glowing tributes to Shapo from his colleagues and included statements from Judge Calabresi and Justice Scalia.
Session Three (Chapter Nine on Rationales)
Shapo was unfortunately late this morning because of a terrible car crash on Lake Shore Drive last night. Anita Bernstein had to start speaking before his arrival. She indicated that Shapo approved of a number of tort rationales: safety, efficiency, freedom, corrective justice, apology, vindication, punishment, social justice, uniformity, and rationality. She discerned a normative streak hidden in Shapo's descriptive project. She stated that one needed to consult his prior writings to see what he disapproves of. The list includes: "dangerous products," an "obsession with comparative institutional analysis," and "failure to give sufficient weight to competing points of view."
Comments and questions focused on whether Shapo had a clear hierarchy for his list of rationales. Shapo was able to join the session at this point and acknowledged he considered himself a pluralist and was not attempting to present a unifying theory or hierarchy. Instead, his goal was to identify a catalog of rationales, goals, and purposes.
Session Four (Conclusion)
Shapo began the final session by revisiting the tension between the individual and society. He then discussed Judge Hand's tribute to Judge Cardozo, in which he said the wise man was the detached man. He referred to examples pro and con on judging as ideological, on the one hand, and nonpartisan, on the other. Referring to a phrase used by a foreign correspondent he found in research before he went to law school, Shapo concluded by saying he hoped his work captured the "smell of the streets."
Jacqueline Zins, the former Deputy Special Master for the 9/11 Fund, was the commentator for this session, focusing on the role of compensation systems in Shapo's injury law constitution. She detailed the statute creating the 9/11 Fund and all of its gaps. She further detailed how Ken Feinberg, as Special Master, filled in those gaps. Much of his focus was on equality and compassion.
Comments and questions focused on the differences between the Fund and tort law, as well as Zins's declaration (mirroring Feinberg) that the Fund was unique and would not be repeated.
Thursday, March 14, 2013
Today and tomorrow the Searle Center at Northwestern is hosting a conference on Marshall Shapo's An Injury Law Constitution. The format is interesting; there is a group of about 35 having a roundtable discussion instead of panelists. There are 4 sessions and each has a commentator to begin the discussion.
Session One: Introduction and Chapter One (Bob Rabin)
Session Two: Chapters Two and Seven (on Power) (Cathy Sharkey)
Session Three: Chapter Nine (on Rationales) (Anita Bernstein)
Session Four: Conclusion (Jacqueline Zins, Former Deputy Special Master of the 9/11 Fund)
I plan to blog the sessions (though probably not as they occur), so stay tuned.
Wednesday, February 13, 2013
On April 16, 2013, Widener's Harrisburg, PA Campus will host Perspectives on Mass Tort Litigation. The brochure (pdf) is here: Download Mass Tort Symp bro 2013. Please make plans to join us to discuss mass torts with a Pennsylvania flavor. The schedule is as follows:
Introduction -- Dean Linda Ammons (9:00 to 9:15 a.m.)
Panel 1 – Mass Tort Theory (9:15 to 10:30 a.m.)
- Moderator – Professor Christopher Robinette (Widener University School of Law)
- Professor Michael Green (Wake Forest School of Law)
- Professor Deborah Hensler (Stanford Law School)
- Professor Linda Mullenix (University of Texas School of Law)
- Professor Aaron Twerski (Brooklyn Law School)
Panel 2 – Emerging Issues in Mass Tort Practice (10:30 to 11:45 a.m.)
- Moderator – Professor Mary Kate Kearney (Widener University School of Law)
- Hon. Thurbert Baker (McKenna Long & Aldridge LLP; Atlanta, GA)
- John Beisner (Skadden Arps; Washington, DC)
- Tobias Millrood (Pogust Braslow & Millrood; Philadelphia, PA)
- Victor Schwartz (Shook, Hardy & Bacon; Washington, DC)
Lunch & DistinguishedAddress – (12:00 to 1:15 p.m.)
Introduction by Professor Christopher Robinette (Widener University School of Law)
Hon. Eduardo Robreno (E.D. Pa.) Federal Asbestos Litigation: Black Hole or New Paradigm?
Panel 3 – Keystone State Civil Justice Issues (1:30 to 2:45 p.m.)
- Moderator – Amaris Elliott-Engel (Legal Intelligencer)
- Nicholas Vari (K&L Gates; Pittsburgh, PA)
- Nancy Winkler (Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.; Philadelphia, PA)
- Mark Behrens (Shook, Hardy & Bacon; Washington, DC)
- Scott Cooper (Schmidt Kramer; Harrisburg, PA)
Panel 4 – Asbestos-Related Bankruptcy Issues (3:00 to 4:00 p.m.)
- Moderator – Professor Susan Raeker-Jordan (Widener University School of Law)
- Professor S. Todd Brown (SUNY Buffalo Law School)
- Bruce Mattock (Goldberg, Persky & White, P.C.; Pittsburgh, PA)
- William Shelley (Gordon & Rees, LLP; Philadelphia, PA)
Panel 5 – Mass Torts Ethics (4:00 to 5:00 p.m.)
- Moderator – Professor Randy Lee (Widener University School of Law)
- Professor Sheila Scheuerman (Charleston School of Law)
- Professor Byron Stier (Southwestern Law School) (via Skype)
Thursday, February 7, 2013
Mark Behrens & Cary Silverman (Shook, Hardy & Bacon) have published Litigation Tourism in Pennsylvania: Is Venue Reform Needed? in the Widener Law Journal. Mark will argue for venue reform at an upcoming symposium here at Widener in Harrisburg. Scott Cooper, the President of PA Justice, will argue the plaintiffs' perspective. Stay tuned for more about the symposium.
The article (pdf) is here: Download DC-#447980-v1-Pennsylvania_venue_reform_article_pdf The conclusion:
Recent changes have made Philadelphia fairer for civil defendants in mass tort cases, but more needs to be done. Pennsylvania should take the next step and adopt venue reform through legislation or court rule. As the Illinois Supreme Court recently observed: "Decent judicial administration cannot tolerate forum shopping as a persuasive or even legitimate reason for burdening communities with litigation that arose elsewhere and should, in all justice, be tried there."
One approach for Pennsylvania would be to extend the venue provision for medical liability actions so that all tort claims have to be brought in the county where the cause of action arose. That approach would achieve greater uniformity and predictability in the law. Alternatively, tort actions not involving medical liability could be brought in the county (1) where the plaintiff resides, (2) where all or a predominant part of the cause of action arose, or (3) where the defendant resides if the defendant is an individual, or where the defendant has its principal place of business if the defendant is a corporation or similar entity. If the action involves multiple corporate defendants, then venue should be limited to the county where the plaintiff resides or where all or a predominant part of the cause of action arose. In an action against a single small business defendant, venue could be limited to the county where all or a predominant part of the cause of action arose. Either approach would refocus Pennsylvania litigation on Pennsylvania citizens, help ensure that claims are heard in the county with the most logical connection to the case, and discourage joinder of local defendants simply for the purpose of having a case heard in a particular county. In the meantime, trial courts should do their part by granting defendants' forum non conveniens motions in cases that should be heard elsewhere.
Wednesday, January 23, 2013
Martha Chamallas (Ohio State) will deliver the 2013 Monsanto Lecture at Valparaiso. The speech, entitled "Institutional Responsibility for Sexual Exploitation: Can Tort Law Deliver Social Justice?," will be delivered on April 12, 2013 from 4:00-5:00 p.m. at Wessemann Hall. The official notice is here.
Tuesday, December 25, 2012
Courtesy of Ken Oliphant:
Michael D Green andOlivier Moréteau ‘Restating Tort Law: The American and European Styles’ (2012) 3 JETL 281
Matthew Dyson‘Civil Law Responses to Criminal Judgments inEngland and Spain’ (2012) 3 JETL 308
Robert J Dijkstra ‘Liability of Financial Supervisory Authorities in the European Union’ (2012) 3 JETL 346
Bernd J Hartmann ‘Perspectives on the Economic Analysis of Public Liability Law’ (2012) 3 JETL 378
Vanessa Wilcox‘Vindicatory Damages: The Farewell?’ (2012) 3 JETL 390
Jens M Scherpe’Christoph Oertel, Objektive Haftung in Europa. Rechtsvergleichende Untersuchung zur Weiterentwicklung der verschuldensunabhängigen Haftung im europäischen Privatrecht’ (2012) 3 JETL 410
Florian Wagner von-Papp’Helmut Koziol/Josef Seethaler/Thomas Thiede (eds), Medienpolitik und Recht: Media Governance, Wahrhaftigkeitspflicht und sachgerechte Haftung’ (2012) 3 JETL 413
Monday, October 15, 2012
Wednesday, October 10, 2012
Tony Sebok (Cardozo) has posted to SSRN The Failed Promise of a General Theory of Pure Economic Loss: An Accident of History?. The abstract provides:
This article was prepared for the 2012 Clifford Symposium, which was held in of the career of Robert Rabin. The article reviews Rabin’s efforts to analyze and rationalize American tort doctrine concerning negligently caused economic loss, which is sometimes dubbed “pure” negligent economic loss so as to distinguish it from economic loss resulting from injury to the plaintiff’s person or property. The article praises and criticizes Rabin’s efforts. It notes that in his early writings on negligently caused economic loss Rabin celebrated decisions such as J’Aire Corp. v. Gregory because it was based on a theory of duty that drawn from a general theory of negligence that applied with equal force to other parts of negligence law, ranging from personal injury to emotional distress. The article then observes that in his later writings, Rabin seemed to back off from his optimistic claim that negligently caused economic loss can be subsumed under a general theory of duty and argued instead that courts must resort to ad hoc duty rules, thus leaving plaintiffs facing a patchwork of holdings driven by various policy considerations.
The article concludes by asking whether Rabin’s retreat is a reflection of an unavoidable reality, which is that negligently caused economic loss is, for whatever reason, destined to operate under principles that limit liability on the basis of principles and/or interests that are unmoored from tort law itself, or whether, as courts outside the United States have suggested (especially in Australia), there is a set of principles available which could subsume negligently caused economic loss cases within a broader theory of duty that includes personal injury, property damage, and emotional distress.
Thursday, October 4, 2012
This is slightly off topic, but Brendan Kenny of Blackwell Burke has founded the Twin Cities E-Discovery Forum. Our readers in the Twin Cities area of Minnesota should check it out.
We would like to invite you to the inaugural meeting of the Twin Cities E-Discovery Forum.
The forum will be a quarterly gathering of local outside counsel, in-house counsel, public-sector attorneys, the judiciary, technologists, and IT professionals dedicated to sharing knowledge and experiences about e-discovery best practices to create a stronger Twin Cities e-discovery community.
At our meetings and at other select events, we will cooperatively discuss current e-discovery issues, educate the local legal community about the challenges posed by electronic discovery, and arrive at cost-effective, ethical, and practical solutions.
The Twin Cities is home to some of the nation’s e-discovery's top talent. Among those national e-discovery thought-leaders that are committed to launching the forum are:
- George Socha: President of Socha Consulting LLC, Co-Founder of EDRM, and Co-Founder of Asperee.
- David Yerich: Director of E-Discovery, United Health Group.
- Michael J. McGuire: Shareholder and eDiscovery Counsel, Littler Mendelson.
Each meeting will have a different topic. There will be a meet and greet with a continental breakfast between 7:30–8:00am, followed by a presentation and a question- and-answer period ending at 9:00am.
The forum is:
- · Free: There will be no charge, no dues, and no fees for our quarterly meetings. Each meeting will be hosted by a different participant.
- · Open: The forum is an open-source e-discovery program. Anyone interested may attend.
- · Flexible: Because e-discovery is constantly evolving, the forum will be decentralized, voluntary, and nimble. Without a rigid agenda and formal structure, it can adjust to meet the ever-changing needs of the legal and technology communities.
- · Collaborative: As the experience of other cities’ e-discovery groups with this format show, the forum is not a CLE—it is a group discussion. Because our discussions are confidential, and because we know and trust our neighbors in the legal community, the forum will foster a more unified, more effective, and more collaborative Twin Cities e-discovery culture.
The forum is modeled after the Friends of E-Discovery groups that Karl Schieneman, Tom Allen, Pete Pepiton, and other lawyers have helped form in Pittsburg, Cincinnati, Columbus, Indianapolis, Cleveland, and Nashville. They have had great success, particularly in bringing together the judiciary, lawyers, IT staff, and technologists.
For more information about these groups, go to www.friendsofediscovery.com.
Opening Meeting Logistics
Our first meeting will be from 7:30–9:00am on October 16, at 431 South 7th Street, Suite 2500, in Minneapolis. It will be hosted by Blackwell Burke P.A. (www.blackwellburke.com/ediscoveryforum.php).
Opening Meeting Topic
After my brief opening presentation, Karl Schieneman will share some of the successes that e-discovery groups with this format have had. This will lead to a roundtable discussion on our most pressing e-discovery issues, and what we hope to gain from the forum.
Mr. Schieneman is a nationally recognized e-discovery thought-leader. He is president and founder of ReviewLess LLC (www.reviewless.co), an e-discovery provider. And he hosts the popular, always insightful, and always free ESI Bytes podcasts (www.esibytes.com).
If interested, please contact Brendan Kenny at 612-343-3211 or firstname.lastname@example.org.
Wednesday, October 3, 2012
Mike Rustad and Gabe Teninbaum at Suffolk are co-chairing Medical Malpractice: Current Issues in Physician, Medical Devices and Pharmaceutical Liability. The conference will be held at Suffolk Law on Friday, November 9, 2012. The description:
About the Conference
Tort reform developments, the U.S. Supreme Court's recent preemption decisions, and rapidly evolving causes of action and defenses are reshaping the medical liability landscape. The Sixth Thomas F. Lambert, Jr. conference brings together top legal practitioners, trial judges and leading academics to reflect on these changes and the potential impact on medical malpractice cases involving physicians, medical devices, and pharmaceutical liability. As Thomas F. Lambert would put it, "A fence at the top of the cliff is worth more than an ambulance in the valley below." Forewarned is forearmed.
Learn about how to resolve challenging medical liability issues from leading Massachusetts jurists and attorneys who try these cases. Learn about how trial judges approach avant garde lost chance cases, high tech medicine cases, and informed consent. This practical conference presents an update on national tort reform as well as New England developments such as the New Hampshire radical reformation of its medical liability and Massachusetts' Apology Bill. Leading trial attorneys will give their take on how these changes to medical liability law impact practice. This conference will give attendees the latest update on the U.S. Supreme Court’s preemption jurisprudence in medical device cases that are often partners in complex medical liability cases. While the emphasis will be on medical liability, there will also be an introduction to the products liability issues. The conference will present state of the art knowledge on what we know and still don’t know about medical liability verdicts from a practical perspective. Attend and hear leading trial lawyers and defense attorneys provide the best available guidance on discovery, voir dire, trial tactics, and jury instructions in a field increasingly impacted by preemption and tort reform. Don't miss this opportunity to learn about the latest developments from the trial judges that try these complex cases with commentary from leading plaintiff and defense experts.
The brochure (pdf): Download Lambert_Medical_Malpractice-2
Monday, September 17, 2012
The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress.
The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines. The annual CSLSA conference is a forum 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.
To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012. Any late submissions will be considered on a space available basis only.
For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers. To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at email@example.com.
In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools. If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at firstname.lastname@example.org.
For more information about CSLSA, visit our website at http://cslsa.us/
Wednesday, August 29, 2012
Nora Freeman Engstrom (Stanford) has posted her contribution to the Festschrift for Robert Rabin, An Alternative Explanation for No-Fault's 'Demise'. The abstract provides:
In the space of one decade, automobile no-fault legislation — the second most ambitious alternative compensation scheme ever enacted in the United States — went from being widely viewed as “inevitable” to having, it is said, met its sad “demise.” Using a broad mix of primary source material, including voluminous congressional testimony and thousands of contemporaneous press and journal accounts, this Article excavates the history of the American no-fault experiment. With the benefit of this previously untapped material, the Article enriches — and in places, complicates — conventional explanations for why no-fault fizzled. It then situates the no-fault experience within a larger socio-legal framework and, in so doing, raises provocative questions about no-fault’s legacy. Then it finally, and more broadly, steps back to view the no-fault experiment not in isolation but as an exemplar of what may be a larger story about tort’s durability and the evolution, and ultimate convergence, of even very different legal regimes over time.
Tuesday, August 28, 2012
John Goldberg & Ben Zipursky's contribution to the Festschrift for Robert Rabin is Convergence and Contrast in Torts Scholarship: An Essay in Honor of Robert Rabin. The abstract provides:
This contribution to a festschrift honoring Professor Robert Rabin examines overlap and divergence between his approach to Torts and our own civil recourse theory. We first flesh out Rabin’s approach by identifying three antinomies that serve as organizing themes in his work – individualized v. bureaucratic compensation; the fault principle v. enterprise liability; and Realism v. Formalism. We then provide an in-depth analysis of Seffert v. Los Angeles Transit Lines, a decision that Rabin and his casebook co-author Marc Franklin helped make famous among torts scholars. Seffert illustrates both the power and the limitations of law-and-society methodology as applied to tort law. It also demonstrates the capacity of civil recourse theory to capture dimensions of tort law that are obscured by other approaches, and to elucidate contemporary issues in tort reform, such as the propriety of limits on pain and suffering damages.
Last time I checked the top 10 recent torts and products liability e-journal downloads, John and Ben, separately or together, accounted for half of them.
Sunday, August 26, 2012
Papers from DePaul's Clifford Symposium are becoming available on SSRN. This year's was devoted to the scholarship of Robert Rabin, and it is only fitting that the first paper presented be from Rabin himself. His contribution was Reflections on Tort and the Administrative State. The abstract provides:
This essay is my contribution to a festschrift dedicated to my scholarship on tort and the administrative state. The essay aims at identifying the central themes in my work and providing supporting commentary. I mark off for discussion three discrete areas that identify pathways to which I have returned repeatedly, although not chronologically, to explore different features of the landscape.
I begin with historical perspectives on the evolution of tort and the administrative state — essays in which I have been animated by an effort to better understand the underpinnings of common law doctrine and regulatory reform in earlier eras and to explore how those norms came to be transformed over time. As a second identifiable area, I turn to scholarship in which I have analyzed the comparative institutional efficacy of tort and regulation. Some of this writing has been aimed at exploring the regulatory limits that have been imposed (or proposed) on tort; in particular, through defense claims of regulatory compliance and tort preemption. Still other scholarly work of mine in this area has focused on the design of tort and administrative compensation/benefit schemes, particularly by examining, on various occasions, the ramifications of legislative no-fault plans. As a third discrete area, I address a set of concerns that thematically cluster in my scholarship: digging beneath the surface of tort doctrine. Here, my work comes from two quite different perspectives, one of which explores the tort system from a process vantage point and the other through a social policy prism. Closely related to this work, in a traditional vein of legal scholarship, I have at times pursued doctrinal analysis as an end in itself.
Both the tort system and the administrative state have grown by leaps and bounds over the past century. Correspondingly, the opportunities for scholarship evaluating these developments, as well as tracing their roots in earlier eras, know virtually no limits. This essay is meant to indicate some of the issues that have struck me as especially worthy of thematic exploration.
Wednesday, August 22, 2012
I have posted to SSRN a draft of my article from last January's AALS Torts & Compensation Systems Section panel on John Goldberg & Ben Zipursky's elegant civil recourse theory. Entitled Two Roads Diverge for Civil Recourse Theory, the abstract provides:
John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates a gap between civil recourse theory and the tort law it is supposed to describe. In the trenches, insurers and plaintiffs’ lawyers are concerned about the profitability of their portfolio of cases as a whole. Insurers and many plaintiffs’ lawyers, therefore, routinize the claims system, increasing its administrability and the compensation of claimants, but reducing or eliminating the importance of wrongs in a large portion of cases. Civil recourse theory fails as a descriptive unitary theory of tort law because it does not accurately describe automobile accident claims, constituting a majority of tort claims and three-quarters of tort payments.
The symposium will be published by the Indiana Law Journal in the spring and contain articles from Judges Calabresi and Posner, Martha Chamallas, me, and a detailed introduction from Mike Rustad. John and Ben are in the unenviable position of responding to the 5 papers in 3 weeks!
Tuesday, August 14, 2012
Ben Zipursky (Fordham) has posted to SSRN Substantive Standing, Civil Recourse, and Corrective Justice. The abstract provides:
Substantive standing and relational wrongs are the core legal concepts with which civil recourse theory was commenced fourteen years ago. A plaintiff has substantive standing to bring a tort claim if the wrong committed by the tortfeasor was wrongful in the relevant respects in relation to the plaintiff: if the defendant defrauded the plaintiff (for a fraud claim), breached a duty of care owed to the plaintiff (for a negligence claim), trespassed upon her land (for a trespass claim), and so on. After tracing the development of civil recourse theory and its analytical roots in the ideas of substantive standing and relational wrongs, this article turns to: (A) criticizing corrective justice theory and distinguishing civil recourse theory from corrective justice theory; (B) criticizing retributive or vengeance-based theories of tort law and distinguishing civil recourse theory from such theories; (C) explaining the distinctive moral ideas at the core of civil recourse theory. The article develops the view – extant in positive morality and elaborated by reference to work by contemporary moral philosophers -- that a person who has been morally wronged has a moral right to demand an ameliorative response of the wrongdoer, and depicts this idea as the backward-looking mirror image of a moral right to self-defense. In empowering tort victims with a right of action against tortfeasors, the state is giving legal embodiment to this moral principle. It is recognizing, in a victim of a legal wrong, a right to demand ameliorative conduct of the one who legally wronged him or her. The article concludes by observing that there is a familiar moral notion of standing to demand a response to having been wronged that parallels the legal notions of substantive standing pervasive in the law of torts.