Monday, October 21, 2013
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 http://moritzlaw.osu.edu/students/groups/oslj/symposium-2/2013-2014-symposium/.
The Supreme Court of Ohio Commission on Continuing Legal Education has approved this symposium for 5.50 total CLE hours of instruction.
Monday, September 23, 2013
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.
Monday, September 16, 2013
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)
Tuesday, July 23, 2013
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.
Friday, July 5, 2013
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.
Friday, June 7, 2013
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
Wednesday, June 5, 2013
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)
Wednesday, May 29, 2013
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
AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL
|Twenty-First Century Tort Theories: The Internalist/Externalist Debate
Michael L. Rustad
|Civil Recourse Theory’s Reductionism
|Instrumental and Noninstrumental Theories of Tort Law
Richard A. Posner
|Beneath the Surface of Civil Recourse Theory
|Two Roads Diverge for Civil Recourse Theory
Christopher J. Robinette
Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette
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.