TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, February 18, 2014

Articles from Perspectives on Mass Tort Litigation

Last April at Widener, we hosted a symposium entitled "Perspectives on Mass Tort Litigation."  The first of two issues of articles from the Widener Law Journal is now available.  It's a terrific lineup:

Christopher J. Robinette, Introduction Download Robinette_V23I1

Victor E. Schwartz & Mark A. Behrens, Asbestos Litigation:  The "Endless Search for a Solvent Bystander" Download Behrens&Schwartz_V23I1

Eduardo C. Robreno, The Federal Asbestos Products Liability Multidistrict Litigation (MDL-875):  Black Hole or New Paradigm? Download Robreno_V23I1

Byron G. Stier, The Sale and Settlement of Mass Tort Claims:  Alternative Litigation Finance and a Possible Future of Mass Tort Resolution Download Stier_V23I1

Thurbert Baker, Paying to Play:  Inside the Ethics and Implications of Third-Party Litigation Financing Download Baker_V23I1

Sheila B. Scheuerman, Mass Tort Ethics:  What Can We Learn from the Case Against Stanley Chesley? Download Scheuerman_V23I1

Nicholas P. Vari & Michael J. Ross, In a League of Its Own:  Restoring Pennsylvania Product Liability Law to the Prevailing Modern "Attitude" of Tort Law Download Vari&Ross_V23I1

S. Todd Brown, Bankruptcy Trusts, Transparency, and the Future of Asbestos Compensation Download Brown_V23I1


February 18, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

2014 Society of Legal Scholars Call for Torts Papers

From James Lee (Birmingham):

I write to invite proposals for papers for the Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.

The overall theme of the Conference is ‘Judging in the 21st Century’. I anticipate that it will be likely that Tort papers will be able to engage readily with this topic, whether focusing on decisions of the highest courts in relevant jurisdictions or on work at first instance, for example. Beyond the theme, proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the second half of the Conference: please note that it has changed from the first half last year, so will run on Thursday 11th and Friday 12th.

All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. We are pleased to have had a range of colleagues presenting high quality papers in recent years, notably from many ODGers. If you are interested in presenting a paper, please e-mail me at with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Friday 7th March 2014.

Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.

Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.



February 10, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

AALS Refund

We know many TortsProfs were unable to make it to D.C. due to the weather.   The Faculty Lounge reports that AALS is offering partial refunds of the registration fee for those unable to make it due to weather.    The form for a refund is here.  The deadline is January 31st.



January 17, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, January 16, 2014

Annual Conference on European Tort Law

Acet_websiteRegistration is now open for the 13th Annual Conference on European Tort Law presented by the European Centre of Tort and Insurance Law.  The conference is April 24-26, 2014, and will be held in Vienna.   The program includes a special session on Cyber-Torts. 


January 16, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, January 3, 2014

Alas, No AALS for Me

I had planned to be at AALS for the Torts Section tomorrow, but the weather has interfered.  I've talked to several TortsProfs who are in the same boat.  For those of you who can make it, Jenny Wriggins has set up a great program.  Sheila (who will be there) posted about it yesterday.  Adam Scales will be joining the Executive Committee as a new member.  Enjoy! 


P.S.  I'll still be doing something Torts-related today:  grading.

January 3, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, January 2, 2014

AALS - Torts Program on Saturday

The Insurance Law and Torts & Compensation Sections will present a joint progam at the AALS annual meeting on Saturday, January 4, 2014, from 10:30 am to 12:15 am.   The program is "On the Unavoidable Intersection of Torts and Insurance," and features Nora Engstrom (Stanford), Tom Baker (Penn), and from a call for papers, Juscelino F. Colares (Case Western).   The program description provides:

Recent scholarship has shown that tort law and practice are inextricably linked with insurance law. Liability insurance drives tort law in action, influencing what claims are brought, how they are litigated, and how damages are determined.  First party insurance such as health and disability insurance are essential parts of the picture in understanding the legal system’s treatment of injury.  The program reflects this intersection between torts and insurance, bringing together scholars doing cutting edge research adding to our understanding.  Papers will focus on several areas including lawyers’ liability and insurance, the failure of no-fault insurance, and oil spill compensation.



January 2, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 4, 2013

Burch on Zimmerman on the Corrective Justice State

Elizabeth Chamblee Burch (Georgia) has posted to SSRN Revisiting the Government as Plaintiff.  The abstract provides:

This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State.

As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements.  Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial.  Instead, this new debate is playing out in an unsettled landscape where those first-order questions about legitimacy remain unresolved.

When layered atop the existing controversy over the intermingling of government functions, executive officials’ relatively new allocative role may put their actions even further at odds with their traditional regulatory and proprietary functions, particularly when the action yielding the compensation is a public substitute for a private right of action.  What principles should guide officials in this new role: traditional tort law, social welfare, or political equality principles such as one person one vote?  More specifically, should executive officials look to tort law precepts to govern the allocation and retain concepts such as economic loss and the collateral source rule, or employ a governmental aid aspect, which would suggest a principal of equality that would not vary based on one’s income but would consider collateral sources of compensation?

Zimmerman suggests that officials have attempted to justify both their regulatory and allocative decisions with ill-suited corrective justice principles that translate poorly from the private to the public sphere.  Despite reservations about whether regulation through litigation results in the best policies or offers democratic checks, he seems more willing to accept executive officials’ increased litigation role in the wake of Congressional failings and the difficulty of certifying a private class action.  He thus tailors his reform proposals to target the government’s allocative function, suggesting ways to improve legitimacy and transparency in distributing recoveries, whatever the guiding principle might be. 

Still, certain concerns and questions linger.  First, Zimmerman narrows his focus to the second generation question of allocation, even though he raises and dismisses first-generation concerns over whether executive officials are properly acting within the scope of their authority and whether the regulatory solutions they generate through litigation are legitimate and optimal.  Shoring up back-end allocation procedures, however, does not alleviate first-generation legitimacy questions or regulatory concerns.  Second, Zimmerman opts not to iron out overarching systemic problems like legislative stalemates or mounting difficulty in certifying class actions,  preferring instead (or perhaps more realistically) to work within the circumstances that prompt executive action.  Yet, truly legitimizing process and adhering to corrective justice principles would require resolving systemic concerns about who should litigate and who should regulate.  Finally, given concerns that judges already “rubber stamp” class-action settlements and that parties tend to find innovative ways to gerrymander votes and stakeholder input in areas like bankruptcy, one might question the effectiveness of Zimmerman’s proposals for enhancing due process when allocating state recovery to affected citizens.


December 4, 2013 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 20, 2013

Medical Malpractice and Compensation in Global Perspective

Medical Malpractice and Compensation in Global Perspective (edited by Ken Oliphant & Richard W Wright). De Gruyter, Berlin/Boston, 2013. xviii + 573 pages. ISBN 978-3-11-027023-5. €149,95 (hardback).
From the marketing materials:
This book examines the issues of medical malpractice and compensation for medical injuries in a uniquely global context, demonstrating the breadth of approaches currently taken around the world and revealing key areas of tension and the likely direction of future developments. The papers are drawn from a symposium held in Vienna in December 2010 which drew together legal experts from 14 national or regional systems across six continents. The collection is framed by a short introduction by the editors and a concluding chapter of comparative observations by Ken Oliphant.
The legal systems covered are Austria, Brazil, Canada, China, France, Germany, Italy, Japan, New Zealand, Poland, Scandinavia, South Africa, the United Kingdom and the United States.

November 20, 2013 in Books, Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 21, 2013

Torts and Civil Rights Law: Migration and Conflict

Sandra Sperino sends news of an interesting upcoming symposium at Ohio State:

On November 15, 2013, The Ohio State Law Journal will host a symposium titled “Torts and Civil Rights Law: Migration and Conflict.”

Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium speakers include the following:

Martha Chamallas, The Ohio State University Moritz College of Law;

Charles A. Sullivan, Seton Hall University School of Law;

Sandra F. Sperino, University of Cincinnati College of Law;

Jonathan Cardi, Wake Forest University School of Law;

William R. Corbett, Louisiana State University Law Center;

Anthony Sebok, Yeshiva University Cardozo School of Law;

Catherine M. Sharkey, New York University School of Law;

Catherine E. Smith, University of Denver Sturm College of Law;

Angela Onwuachi-Willig, The University of Iowa College of Law;

Ifeoma Ajunwa, Research Fellow, Columbia Law School;

Maria Linda Ontiveros, University of San Francisco School of Law;

Laura Rothstein, University of Louisville Louis D. Brandeis School of Law;

Deborah L. Brake, University of Pittsburgh School of Law; and

L. Camille Hébert, The Ohio State University Moritz College of Law.


The symposium will be held at the Ohio State University Moritz College of Law.  For more information, please visit the symposium website at

The Supreme Court of Ohio Commission on Continuing Legal Education has approved this symposium for 5.50 total CLE hours of instruction.


 - SBS



October 21, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

2014 Clifford Symposium

From our friends at Mass Tort Litigation comes news of the 2014 Clifford Symposium, which will explore Judge Jack Weinstein's impact on "a broad range of topics in civil justice, from torts, civil procedure and the law of evidence, to broader notions about what it means to be a judge and to seek justice in America's courts."    Justice Stephen Breyer is scheduled to give the main address.

The brochure, with a full list of speakers, is available here. 


September 23, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, September 16, 2013

The Public Life of the Private Law: A Conference in Honor of Richard A. Nagareda

On September 27-28, 2013, Vanderbilt Law School hosts "The Public Life of the Private Law: A Conference in Honor of Richard A. Nagareda."   The schedule provides:

Friday, September 27
1:30–3:00 p.m. Theodore Rave (Houston), "Settlement, ADR, and Class Action Superiority"
Commentators: Suzanna Sherry (Vanderbilt) chair, Robert Bone (Texas), and Emery Lee (FJC)

3:15–4:45 p.m. Maria Glover (Georgetown), "A Separate Peace? The Non-Removability of State Law Actions in Multi-District Litigation".   Commentators: Tracey George (Vanderbilt) chair, William Rubenstein (Harvard), and Patrick Woolley (Texas)

Saturday, September 28
8:30–10:00 a.m. Troy McKenzie (NYU), "The Mass Tort Bankruptcy: A Pre-History"
Commentators: Lynn Baker (Texas) chair, Joe Cecil (FJC), and Brian Fitzpatrick (Vanderbilt)

10:15–11:45 a.m. Catherine Borden (FJC) and Margaret Williams (FJC) (with Emery Lee), "Repeat Players in Multidistrict Litigation".  Commentators: Charles Silver (Texas) chair, Paul Edelman (Vanderbilt), and Myriam Gilles (Cardozo)

1:15–2:45 p.m. Adam Zimmerman (Loyola-Los Angeles), "The Corrective Justice State"
Commentators: John Goldberg (Harvard) chair, Elizabeth Chamblee Burch (Georgia), and Edward L. Rubin (Vanderbilt)




September 16, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

Calnan on Civil Recourse Defended

Alan Calnan (Southwestern) has posted to SSRN Defenseless Self-Defense:  An Essay on Goldberg & Zipursky's Civil Recourse Defended.  The abstract provides:

In a recent symposium issue published by the Indiana Law Journal, Professors John C. P. Goldberg and Benjamin C. Zipursky provide a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in two related respects. First and most obviously, civil recourse theory lacks any meaningful explanation of the defensive rights at play within the tort system. Second and more importantly, Goldberg & Zipursky’s theory is inescapably indefensible because it cannot cure this omission without simultaneously self-destructing. When recourse meets defense, it is transformed into competition. This competitive framework precludes the antithetical enablement interpretation of civil recourse. By counterbalancing rights, tort does not take sides. It mediates and moderates the parties’ polar positions.

Goldberg & Zipursky misunderstand this unique human institution because they completely disregard human nature. People possess a conflicted mix of instinct and rationality mediated by a constant yearning for reconciliation and balance. This triune nature permeates our cultural artifacts, including our laws. Indeed, as this essay will show, it accounts for much of the history, substance, and structure of the tort system. Though broadly drawn, this extraordinary consonance bears further investigation. But to discover tort’s inner truth, we cannot continue searching with blinkered perspectives like civil recourse theory. Instead, we must open our eyes to the law’s deepest foundations.


July 23, 2013 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, July 5, 2013

Engstrom on Lawyer Lending

Nora Freeman Engstrom (Stanford) has posted to SSRN Lawyer Lending:  Costs and Consequences.  The abstract provides:

The “lawyer lending” industry — comprised of lenders who extend capital to plaintiffs’ lawyers to finance personal injury litigation — has blossomed. This industry has taken off, at least in part, because attorneys are permitted to deduct interest on these loans from client recoveries as an additional “expense” of litigation. The cost of the burgeoning lawyer lending industry is, thus, in large measure, borne by clients. This Article asks whether personal injury attorneys who choose to take out loans to cover case costs and litigation expenses ought to be allowed to offload associated interest charges. The Article shows this question is important in its own right — with profound implications for the quantity and intensity of tort litigation. And the question is also an ideal point of entrée to identify, and begin to remedy, broader deficiencies in three strands of current legal analysis. Examining the propriety of interest pass-throughs first highlights the importance of litigation costs — and the inter-connectivity of costs and contingency fees — a topic that has suffered from too little investment in research. Second, by separately considering just lawyer lending, (rather than all third-party funding mechanisms simultaneously), and by studying a mechanism’s on-the-ground operation, (rather than just its birds-eye-view impact), the Article attempts to lead by example to reorient future Alternative Litigation Finance scholarship. Third, the Article underscores the need to push past bare formalism, and it sketches an alternative theoretical framework that can be employed when confronting certain ethical issues going forward.


July 5, 2013 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 7, 2013

Weinrib Speaking on Causation in Negligence Law

Professor Ernest Weinrib, Cecil A Wright Professor of Law at the University of Toronto, will be speaking at Macquarie Law School in Sydney, Australia, on the topic of 'Causal Uncertainty in Negligence Law', on August 22nd. The flyer is attached:   Download Ernest Weinrib Public Talk_FINAL (1)-1


June 7, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 5, 2013

Widener Mass Tort Litigation Panels

Video of the panels from the April 16 symposium on Mass Tort Litigation is now available.

Panel 1; Mass Tort Theory:  Deborah Hensler (Stanford), Linda Mullenix (Texas), Mike Green (Wake Forest), and Aaron Twerski (Brooklyn)


Panel 2; Emerging Issues in Mass Tort Practice:  Hon. Thurbert Baker (McKenna Long & Aldridge), John Beisner (Skadden Arps), Tobias Millrood (Pogust Braslow & Millrood), and Victor Schwartz (Shook Hardy & Bacon)


Distinguished Address:  Hon. Eduardo Robreno (E.D. Pa.); Federal Asbestos Litigation:  Black Hole or New Paradigm?


Panel 3; Keystone State Civil Justice Issues:  Nancy Winkler (Eisenberg Rothweiler Winkler Eisenberg & Jeck), Nicholas Vari (K&L Gates), Mark Behrens (Shook Hardy & Bacon), and Scott Cooper (Schmidt Kramer)


Panel 4; Asbestos-Related Bankruptcy Issues:  Todd Brown (Buffalo), Bruce Mattock (Goldberg Persky & White), and WIlliam Shelley (Gordon & Rees)


Panel 5; Mass Tort Ethics:  Sheila Scheuerman (Charleston) and Byron Stier (Southwestern)


June 5, 2013 in Conferences, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 29, 2013

AALS Torts Panel on Civil Recourse Theory

The Indiana Law Journal has posted to its website the articles from the 2012 AALS Torts & Compensation Systems panel on civil recourse theory:

Indiana Law Journal
Volume 88: Issue 2
Winter 2013


Twenty-First Century Tort Theories: The Internalist/Externalist Debate
Michael L. Rustad
Civil Recourse Theory’s Reductionism
Guido Calabresi
Instrumental and Noninstrumental Theories of Tort Law
Richard A. Posner
Beneath the Surface of Civil Recourse Theory
Martha Chamallas
Two Roads Diverge for Civil Recourse Theory
Christopher J. Robinette

Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette
John C. Goldberg & Benjamin C. Zipursky


May 29, 2013 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 24, 2013

Fordham's "Lawyering for Groups"

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.


May 24, 2013 in Conferences, MDLs and Class Actions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

CFP: AALS Sections on Torts and Insurance

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.


April 25, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, April 22, 2013

Perspectives on Mass Tort Litigation at Widener

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. 


April 22, 2013 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 27, 2013

Rapp on NFL Concussions

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.


March 27, 2013 in Conferences, Scholarship, Sports | Permalink | Comments (0) | TrackBack (0)