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.
Friday, July 27, 2012
Mike Rustad (Suffolk) has posted two pieces to SSRN. First, he reviews Marshall Shapo's new book in The Myth of a Value-Free Injury Law: Constitutive Injury Law as a Cultural Battleground. The abstract provides:
This review essay critically examines Marshall Shapo’s new book, An Injury Constitution. Shapo’s new book provides a counter to simplistic arguments that torts is driving our economy into a death spiral by jackpot justice judgments in which undeserving plaintiffs collect enormous awards given by runaway juries. Drawing upon forty-six years of torts scholarship and teaching, Shapo’s pluralistic theory demonstrates how injury law reflects our culture and our inner life, as well as our aspirations to constrain bullies and the reckless acts that endanger society. In its eleven chapters, this book contends that American injury law has evolved as the functional equivalent of a constitution.
Second, from the AALS mid-year meeting last month is Tort Teaching Lessons from the BP Oil Spill. The abstract provides:
This article is drawn from my talk on the topic of "How to Teach Disaster as Part of a Torts Curriculum" at the AALS Workshop on Torts, Environment and Disaster from June 8-10, 2012, in Berkeley. This piece draws upon an informal survey I conducted in the spring of 2012 on how torts teachers employed the BP oil spill disaster (and other disasters) in their basic torts course (to illustrate topics such as the economic loss rule, legal causation, damages, and the impact of safety regulations).
Friday, July 13, 2012
I posted this earlier, but it was not directly accessible. I tried again yesterday, but the time to upload the file was far too long. I think I have fixed the problem. In order, the speakers are Mike Rustad, John Goldberg, Ben Zipursky, Guido Calabresi, Martha Chamallas, and me.
Tuesday, July 10, 2012
Professors Michael D. Green (Wake Forest) and William C. Powers Jr. (Texas) have been announced as the 2012 co-winners of the John G. Fleming Memorial Prize for Torts Scholarship. They will jointly deliver the second Fleming Lecture at Berkeley Law on November 5. Professors Green and Powers are being honored for, among other things, their outstanding work as American Law Institute co-reporters for two core portions of the Restatement (Third) of Torts.
Berkeley Law Professor John Fleming was among the world’s leading comparative tort law scholars and long-time editor-in-chief of the American Journal of Comparative Law. When he passed away in 1998, two books were published in his honor and proceeds were used to create the Fleming Prize, which is awarded every other year to a tort law scholar from any country. The Fleming family later endowed the Fleming Lecture. Bob Rabin (Stanford), the previous winner of the prize, delivered the first Fleming Lecture.
Professor Stephen Sugarman (Berkeley) can provide more details about this fall’s Fleming Lecture. Congratulations!
Tuesday, June 26, 2012
John Oberdiek (Rutgers-Camden) has posted to SSRN Method and Morality in the New Private Law of Torts. The abstract provides:
The just-christened New Private Law is especially intriguing, for it self-consciously aspires to draw insight from both instrumentalism and formalism. In his ambitious and illuminating "Palsgraf, Punitive Damages, and Preemption," for example, Benjamin Zipursky could not be any more forthright in combining instrumentalist and formalist themes. On his view, the New Private Law’s methodology is sensitive to both the functions and the concepts internal to law. Thus the New Private Law promises to be the elusive third way. And in Zipursky’s hands, it seems to me, the New Private Law of Torts makes good on that promise, offering a sound approach to the adjudication of vexing questions at the frontier of tort law. But Zipursky nevertheless falters in eschewing consideration of the approach’s moral foundations. In addition to explicating just what a commitment to the New Private Law of Torts comes to, then, it is the aim of this essay to assess where normative and specifically moral considerations do, should, and must come into play in the New Private Law of Torts.
Monday, June 25, 2012
Jason Solomon (W&M) has posted to SSRN Civil Recourse as Social Equality. The abstract provides:
In the past decade, civil recourse theory has emerged as an important way of thinking about tort law as individual justice, and private law more broadly. But it has also been criticized as lacking an adequate normative foundation. On its face, the right to civil recourse seems like a form of retaliation or vengeance, and it seems unlikely that this is an appropriate part of a modern liberal state.
In prior work, I explained how the idea of equal accountability was an attractive moral norm and conceptual foundation for the right to recourse. This paper explores whether there are conceptions of equality that might support the right to recourse as a matter of political theory. Specifically, I argue that the right to recourse can be justified by drawing on two related notions of equality — a distributive one and a relational, or social, one.
I argue that these two conceptions of equality relate in the following way. The right to hold accountable those who have wronged you is a good subject to principles of distributive justice. And this good is something that the state provides to help constitute a community that aspires to social equality — where individuals relate to one another as equals. My task here is to explain what I mean in drawing on these two conceptions of equality, and how they relate to civil justice.
Tuesday, June 12, 2012
John Goldberg has posted to SSRN Tort Law at the Founding. The abstract provides:
In his influential History of American Law, Lawrence Friedman suggests that tort law was “totally insignificant” prior to the late Nineteenth Century. Implicit in this assessment is a judgment that a body of law is significant only insofar is it addresses a large-scale social problem as such. This criterion stacks the deck against tort law, which is not law of this kind. Rather, it is a law of civil recourse. In fulfillment of a governmental responsibility to its citizens, tort defines a certain kind of wrong and empowers victims of this kind of wrong to obtain redress from wrongdoers.
Written for a 2011 symposium held at Florida State University, this essay melds the insights of civil recourse theory with recent historical scholarship to demonstrate that tort law was central to American legal practice and legal thought long before the Industrial Revolution. In fact, the tort notion of civil recourse set the terms on which this nation was founded. Quite self-consciously, Jefferson cast the Declaration of Independence in the language of civil recourse; the Declaration is our founding lawsuit. The inclusion of the Alien Tort Statute in the Judiciary Act of 1789 and the emergence of the nineteenth-century congressional practice of indemnifying officials for their tort liabilities further demonstrate our early embrace of the core tort notion that government bears a responsibility to provide citizens with law for the recourse of wrongs.
Thursday, June 7, 2012
John Goldberg & Ben Zipursky respond to critics from last year's Florida State symposium on civil recourse theory in Civil Recourse Revisited. The abstract provides:
This essay responds to the extensive and thoughtful commentary on civil recourse theory provided by Curtis Bridgeman, Julian and Stephen Darwall, John Gardner, Andrew Gold, Scott Hershovitz, Gabe Mendlow, Nathan Oman, Arthur Ripstein, Anthony Sebok, Emily Sherwin, Jason Solomon, and Ernest Weinrib, all of whom participated in a 2011 symposium at Florida State University School of Law that was devoted to the subject. In it, we defend civil recourse theory against corrective justice theory and (following our own, independent contributions to the symposium) further develop our critiques of that theory. Against methodological criticisms, we maintain that civil recourse theory is an interpretive theory that has both explanatory and normative power. Finally, we briefly tease out some of the implications of civil recourse theory for private law beyond torts (contract law, in particular), and for the philosophical analysis of concepts such as accountability and responsibility.
Thursday, May 31, 2012
Tuesday, April 17, 2012
The 2012 Clifford Symposium on Tort Law and Social Policy, "A Celebration of the Thought of Marc Galanter," will take place on April 26 and 27 at DePaul University College of Law. As always, the symposium is chaired by Stephan Landsman.
Thanks to Alberto Bernabe for the tip.
Thursday, April 12, 2012
The Center for Agricultural Law and Taxation at Iowa State is offering a webinar on Monday April 16:
On Monday April 16 from noon to 1 p.m. CST, CALT's Staff Attorney, Erika Eckley, will be conducting a webinar on the important topic of agricultural torts. Lawyers can obtain 1 hour of CLE for joining in on the webinar. But, it's not just for lawyers. If you are an agricultural producer, operate an agribusiness, or are a rural landowner, you will benefit greatly from the 1-hour session. It's a cost-effective way to learn how the law handles various liability situations, and that knowledge could end up saving you a great deal of dollars and grief in the future.
Among the topics that Erika will cover include key state and national developments involving topics such as premises liability, nuisance, employer liability, recreational use, and legislative developments of importance to agricultural clients. Erika will provide a basic primer on the development of an agricultural tort case, including the preservation and development of requisite evidence and proof of damages.
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.