TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, February 25, 2010

Introducing Guest Blogger Ken Simons

Simons_white_65w  Monday's guest blogger is Ken Simons.  Simons is the Honorable Frank R. Kenison Distinguished Scholar in Law and Professor of Law at Boston University School of Law.

Simons has been a member of the BU Law faculty since 1982.  He served as Associate Dean for Academic Affairs from 1990 to 1993, and as the Associate Dean for Research from 2006 to 2008.  He has taught criminal law, torts, constitutional law and seminars on the topics of justice and rights, the philosophy of punishment, and the idea of equality.   In 1999, Simons was a visiting professor at Michigan Law School, where he taught torts and a seminar on "Rights and Justice." 

Simons's publications are too numerous to list here.  Recent publications include: "Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction," in Symposium, Criminal Law & Philosophy  (forthcoming); "The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines," in Symposium, Wake Forest Law Review  (forthcoming); "The Distinction Between Negligence and Recklessness Is Unstable," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); "Excuse Doctrine Should Eschew Both the Reasonable and the Ordinary Person," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); "Requiring Reasonable Beliefs about Self-Defense Ensures That Acts Conforming to Those Beliefs Are Reasonable," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); and "Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment," 109 Columbia Law Review Sidebar 1 (2009). 

Simons clerked for Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit and Justice Thurgood Marshall of the U.S. Supreme Court.


February 25, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, February 22, 2010

Bernstein on "Pervading"

Honored to be here for a guest post.  In choosing my topic, I’ve decided to forgo the chance to, ahem, promote my own recent torts publications and instead write in response to the request I’ve heard most often from colleagues over the years:  Any suggestions of how a Torts instructor can integrate professional responsibility or legal ethics into this course?


This question broaches the pervasive method.  Professional responsibility folks have long debated the issue of venue: Should this subject occupy its own course, or instead pervade a larger curriculum?  I’ve expounded on the issue elsewhere, referring to the pioneering pedagogy that Deborah Rhode staked out decades ago.  For now let’s assume that you are interested in making occasional references to legal ethics or professional responsibility issues as they are presented by the material you cover in your Torts class.


Disclaimer:  I am not necessarily advising you to do so.  Everything we put into our classes displaces something else we could do with the same unit of time.  No matter which political ideologies we hold, we all believe in the microeconomics tenet of scarcity!


That said, it’s nice to gain an option.  So I’ve gathered a half-dozen torts-and-professional- responsibility points that won’t demand too much preparation effort or time in class. They have the almost paradoxical virtue of making what you do in class more theoretical and more hands-on practical. You can emphasize either aspect.  

1.    The contingent fee.  Whenever your text includes a case with a plaintiff who appears to lack wealth, you can tell students how personal injury lawyers typically get paid for their work.  From there, mention ethics issues that accompany the contingent fee, which is an attorney’s gamble that prosecuting a tort claim for a client will pay off.  And from there…


2.    … you can introduce conflicts of interest between lawyer and client by asking which conditions would make a lawyer want to settle while a client wants to press on toward trial.  Then ask what would make a lawyer want to go to trial while the client prefers fast cash.  You might be surprised—at least I’ve been surprised—to hear first-year students argue that the lawyer’s preference should prevail.


3.    Truth versus partisanship.  Do plaintiffs tell the truth under oath about, say, their own lack of comparative negligence?  For scrutiny of the other side of the caption, you can use cases involving entity defendants, which invite attention to concealment of evidence and well-financed stonewalling.


4.       Solicitation.  Students often don’t know that a lawyer may not approach an injured stranger and offer to represent this person in pursuit of legal redress for the injury.[1]  I’ve long been fascinated by this prohibition (and have explored what it has, and doesn't have, in common with the criminalization of solicitation in the context of street prostitution).  The ban seldom emerges from cases in a Torts text, but you can often find it just below the surface.  For example, in the book I now use, one decision speaks disparagingly of plaintiffs’ experts, implying that they had tried to use dishonest boilerplate affidavits.[2]  Rejection of their testimony can open a conversation about mass torts as lawyer-driven business enterprises rather than responses to the needs of hurt individuals.


5.    Witness coaching.  Consider the way judicial authors use “the facts” to support the decisions they make to permit or bar recovery in tort.  How do these judges know what happened?   Many of the cases in your text will be appellate opinions reviewing lower court judgments following a trial.  This case law may raise the possibility that witnesses (especially plaintiffs) were coached by their attorneys.  I recommend the law review article by Bill Hodes defending this practice.  His thesis, which you can summarize in class, is provocative.[3]


6.    Tort liability for attorney misbehavior. Sometimes Torts gives students the impression that anybody can sue anybody for anything.  It can be refreshing to turn this plenary breadth against our own occupation.  The Goldberg, Sebok & Zipursky text that I use gives instructors an early opportunity to raise the subject by presenting duty—including the limited duty to prevent economic loss—up front.  Another convenient point to raise this issue arises when you reach a medical malpractice case.  “That’s medical malpractice,” you can say by way of opening a discussion.  “What would be legal malpractice?  How might a lawyer cause injury by failing to fulfill the standard of care?”  Tort liability for “abuse of process” and “malicious prosecution” can come up later, if you so desire.


- Anita Bernstein

Anita and Stuart Subotnick Professor of Law

Brooklyn Law School 

[1] A couple of jurisdictions do permit this overture.

[2] John C.P. Goldberg, Anthony J. Sebok, & Benjamin C. Zipursky, Tort Law: Responsibility and Redress 242 (4th ed. 2008) (reprinting Aldridge v. Goodyear Tire & Rubber Co., 34 F. Supp. 2d 1010 (D. Md. 1999)).

[3] W. William Hodes, The Professional Duty to Horseshed Witnesses--Zealously, Within the Bounds of the Law, 30 Texas Tech. L. Rev. 1343 (1999).

February 22, 2010 in Guest Blogger, Teaching Torts | Permalink | Comments (2) | TrackBack (0)

Thursday, February 18, 2010

Introducing Guest Blogger Anita Bernstein

Bernstein_anita    Monday's guest blogger is Anita Bernstein.  Bernstein is the Anita and Stuart Subotnick Professor of Law at Brooklyn Law School, where she currrently teaches Torts, Marriage and the Law, and The Legal Profession.

Prior to joining Brooklyn Law School, Bernstein was the Sam Nunn Professor of Law at Emory University School of Law, the Wallace Stevens Professor of Law at New York Law School and the Norman & Edna Freehling Scholar and Professor of Law at Chicago-Kent College of Law. She also served as a visiting professor at Michigan Law School, Cornell Law School, and the University of Iowa College of Law, where she was the Mason Ladd Distinguished Visiting Professor of Law. Before her academic career, she practiced with Debevoise & Plimpton and was a law clerk to Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York.

Bernstein is a prolific author whose work includes several books on marriage and torts, including Marriage Proposals: Questioning a Legal Status (2006), Torts: Questions and Answers (2004) (co-author with David Leonard), and A Products Liability Anthology (ed.)  (1995).  Bernstein's awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems.



February 18, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, February 15, 2010

Guest Blogger Alan Calnan: On Due Process, Probable Cause, Duty and Torts

Nothing in torts is more sacrosanct than the aggrieved party’s right to sue. Some theorists see it as a political right of access to an important public institution. Others say it is a moral imperative securing a fundamental personal liberty. Still others view it as simply a practical expedient for blatant judicial policymaking.

Whatever its basis, the right to sue is both embedded in and enabled by the tort concept of duty. Conventional wisdom holds that people owe a general duty to protect others from the unreasonable risks of their conduct. This duty, in turn, bestows upon all citizens both a primary right of security and a complementary power to enforce that right in court. When one person’s act violates another’s security by causing her personal injury, this dormant power becomes an actual subsidiary right of legal recourse that presumptively legitimates the injured party’s tort suit against the actor. Indeed, under the approach recently adopted by the Restatement (Third) of Torts, that subsidiary right prevails unless and until the actor turned defendant affirmatively undertakes to challenge it.

In this post I will argue that the right to sue in tort is not universal, absolute or automatic, but is counterbalanced and limited by an equally critical right to be free from unsubstantiated litigation. Relatedly, I shall contend that this defensive right invalidates the use of a general duty in negligence cases. A plaintiff suing for negligence must earn the right to haul her adversary into court; and to do this, she must show probable cause for her action. I will close by briefly sketching out a procedure for implementing this requirement.[1]

A tort action, like a criminal prosecution, is an assault. Stripped of its formal trappings, such a proceeding entails one person or group acting to interfere with the interests of another. Regardless of its outcome, this assault greatly impairs the liberty of the party against whom it is directed, disrupting her employment, draining her financial resources, subjecting her to public obloquy, and causing her anxiety and emotional turmoil.

Both types of assault rely on state action. In criminal cases, the state initiates and prosecutes the assault on its own. In tort cases, the state provides invaluable assistance to a private claimant, lending her its fora, facilities, administrators, laws, procedural rules, decisionmakers, and even its coercive authority. Accordingly, each act of legal aggression is governed by the dictates of due process.

Due process prohibits limiting liberty without adequate justification. Neither criminal prosecutions nor tort actions are inherently justified. When an accuser makes an accusation of legal responsibility, the propriety of the accused’s conduct is unknown. There is no more reason to assume the accused’s guilt than to assume the accuser’s bad faith. The only certainty is the fact of the accuser’s current aggression. Until grounds for suspecting a wrong are established, the accuser possesses no automatic right of recourse. She accrues that right by creating probable cause for her action.

In criminal cases, probable cause has a single, factual dimension. The prosecutor must present facts demonstrating that the accused probably committed a crime. This showing is sufficient to justify state action, since both the conduct subject to criminal punishment and the authority of the state’s prosecutor are prescribed by statutory law.

Tort cases, by contrast, require three forms of probable cause. As in criminal cases, the prosecutor of a tort action must present facts providing reasonable grounds to believe that the defendant committed a tort. Unlike criminal cases, however, this factual predicate is not sufficient to establish a right to civil recourse. To fully justify her private assault, a tort plaintiff also must establish substantive and procedural probable cause.

Substantive probable cause is a prima facie showing of the defendant’s obligation. While criminal duties are clearly defined and statutorily entrenched, tort obligations are deceptively complex and insufferably dynamic, often arising slowly and incrementally from decades of precedents, or erupting suddenly and spontaneously from a single judicial decision. Thus, tort’s duties are naturally more uncertain.

Continue reading

February 15, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, February 11, 2010

Monday's Guest Blogger: Alan Calnan


Alan Calnan is Professor of Law at Southwestern Law School.  He developed a profound interest in jurisprudence and the social policies that influence it while serving as Notes and Comments editor of the Syracuse Law Review. Today, that interest has led him to explore the roots of tort law in his books Justice and Tort Law and Duty and Integrity in Tort Law. His 2005 book, A Revisionist History of Tort Law, has garnered numerous outstanding reviews.

Professor Calnan began his career as a judicial clerk to Judge Donald E. Wieand of the Superior Court of Pennsylvania, and went on to serve as a litigation associate with the firm of White & Williams. He found he missed the intellectual rigor of academic life, and left practice to accept a faculty position at Villanova University School of Law.  In 1990, he joined the Southwestern faculty. About teaching, Professor Calnan says, "I love the interaction with students. If I do my job well, I can cause them to see the world in a completely different way." His students believe that he has been successful in doing just that, and in 1999, he received Southwestern's Excellence in Teaching Award. The same year, he was named as the Irving D. and Florence Rosenberg Professor of Law, one of the highest honors bestowed on Southwestern Faculty. In 2004, he was named the Paul E. Treusch Professor of Law for his outstanding teaching, professional accomplishments and service to Southwestern.

Professor Calnan's expertise has been tapped by such agencies as the Bureau of Alcohol, Tobacco and Firearms, and the National Research Council and National Academy of Sciences' Committee on Marking, Rendering Inert, and Licensing of Explosive Materials, in a study of means to combat terrorist bombings. He has been quoted on an extensive array of tort and product liability issues (ranging from municipal liability to the liability of dog food, automobile, cigarette, gun, breast implant and halogen lamp manufacturers) by The Associated Press, The Los Angeles Times, USA Today, The Arizona Republic, The Atlanta Journal and Constitution, The Chicago Sun-Times, and other major newspapers, television, cable and radio outlets around the country.


February 11, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, February 8, 2010

Guest Blogger Kenneth Abraham: Four Conceptions of Insurance


  As all torts scholars and teachers know, tort liability and insurance are intimately connected. Much of tort liability as we know it would not exist if liability insurance did not also exist, to provide plaintiffs a reliable source of recovery and to protect defendants against the potentially catastrophic impact of liability. And liability insurance as we know it might look very different if the U.S. tort system had a different character. Indeed, in a recent guest blog my colleague Jeffrey O’Connell argued that tort liability should be seen as social insurance.


    Over the years I have noticed, in addition, that debates about the proper scope of insurance, whether third-party or first-party insurance, and about the proper interpretation of insurance policy language, often presuppose particular views about the purpose or purposes of insurance, and sometimes even presuppose a particular view of what the essence of insurance is. This has certainly been a feature of the recent national debate about health insurance reform. Arguments pro and con about pre-existing condition limitations on coverage, about a possible mandate that all individuals purchase insurance, and about many other components of the House and Senate Bills, reflected different views about what insurance should and should not do, and about what insurance actually is. These different views -- I will call them “conceptions” of insurance -- do much of the work of producing the result that a party to the debate or dispute favors.


    Insurance, in short, is a contested concept. And in fact it is contested in more ways than one. We transfer and spread risk through an array of different private and public devices, only some of which are, strictly speaking, insurance. Exactly which such devices constitute insurance is a matter of dispute. For example, some observers have contended that the credit-default swaps that were at the heart of the AIG bailout were a form of insurance that should have been regulated by state insurance commissioners. This is a significant issue because our systems of regulation are set up to address insurance, and insurance companies, in different ways, and through different regulatory regimes, than non-insurance transactions by other financial intermediaries. Further, even when there is agreement that a transaction constitutes insurance and that one of the parties to the transaction is an insurance company, what follows from such designations depends on the particular conception of insurance that is invoked.


    Contests over the meaning of a concept – here, the concept of “insurance” -- may take different forms. In this instance, the contest is among different ways of characterizing insurance in terms of something else. The contest, that is, is over competing metaphors and analogies. Four conceptions, either explicit or merely implicit or inchoate in the case law and scholarly literature, are sufficiently common to warrant extended examination. I am currently undertaking such an examination, but in the meantime, here is a brief summary of the four conceptions.


    Contract conceptions understand insurance as a voluntary agreement between an individual policyholder and an insurer, subject to the constraints and rules of construction that are ordinarily placed on such agreements by the law of contracts. The challenge for contract conceptions of insurance, as it is for contract theory more generally, is to articulate a principle or set of principles that coherently distinguishes between the features of the insurance contract that are subject to market choice – that are contractually binding -- and the features that judicial and administrative regulation legitimately may trump.


    Under public utility conceptions insurance is a regarded as an insufficiently competitive industry, selling a good so nearly essential that it requires government regulation in the public interest. Contract is only a convenient means of delivering insurance to those who need it, and contract terms are therefore mere starting points. Regulators should have authority to ensure that suitable insurance is delivered at a fair price to all comers.


    Product conceptions see insurance as resembling a tangible good more than a promise to perform financial services, and therefore appropriately subject to rules analogous to those that govern defectively designed products. Regulators should ensure that insurance policies do not contain gaps that are unreasonably dangerous to those who suffer losses. Courts should not merely interpret policy language, but should subject that language to a defectiveness test and award damages (i.e., coverage) when policy language fails this test. Interestingly, this is a tort law conception of what insurance is, or at least of how the quality of insurance ought to be evaluated.


    Finally, private government or mutuality conceptions view insurance as a product of consent on the part of policyholders to invest an insurer with authority to operate a risk-sharing arrangement for the mutual benefit of the policyholders. These circumstances create the opportunity for abuse of policyholders by the insurer to serve its own ends, and a risk of abuse of the minority of policyholders by the majority for the majority’s ends. Insurance law should therefore be structured to provide the necessary protections against both forms of private “governmental” abuse. 


    The proponents of these conceptions often tend to believe that they have different normative implications. And this may be partly correct, although much depends on the particular contours that are thought to comprise a given conception. More importantly, ultimately the principal value of the different conceptions is not that they have different normative implications, but that they stretch the imagination and thereby help us to clarify our views about the proper relationship between insurers and policyholders, and among policyholders themselves. We can’t simply change our conception of insurance and thereby avoid the hard but essential work of figuring out precisely what rights and obligations these parties ought to have. And as we do this work, inevitably our conclusions will not only affect insurance and insurance law, but tort law as well, in view of the enduring relation between tort liability and insurance.


--Kenneth S. Abraham

University of Virginia Law School

February 8, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

Monday's Guest Blogger: Kenneth Abraham


Kenneth Abraham is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia School of Law. He is a member of the American Academy of Arts and Sciences and the Council of the American Law Institute. He served as an advisor to the American Law Institute's Restatement of Torts (Third): Products Liability, was a co-author of the Institute's major study, Enterprise Responsibility for Personal Injury,and has served on many other boards and commissions concerned with tort law and insurance reform. He has been a consulting counsel and an expert witness in a variety of major insurance coverage cases, involving directors and officers liability, environmental cleanup liability, toxic tort, products liability, and property insurance claims. He has also served as an arbitrator for the Dalkon Shield Claimants Trust, resolving over 100 claims by women seeking damages for injuries caused by the Dalkon Shield intrauterine device, both in the United States and Europe.

In 2000 Abraham received the all-University of Virginia Outstanding Teacher Award, as well as the American Bar Association's Robert B. McKay Law Professor Award, given for outstanding contributions to tort and insurance law. In 2001 he was honored with a Distinguished Faculty Achievement Certificate from the State Council of Higher Education for Virginia, for "outstanding achievement in teaching, research, and public service.” Abraham has been a Visiting Professor at Harvard Law School and Case Western Reserve Law School. He taught for nine years at the University of Maryland Law School before joining the Virginia faculty in 1983.

Abraham’s most recent book is The Liability Century: Tort Law and Insurance from the Progressive Era to 9/11 (2008). His casebook, Insurance Law and Regulation, now in its fourth edition, has been used as the principal text in courses on insurance law in more than 100 American law schools. His torts treatise, The Forms and Functions of Tort Law (3d ed. 2007), has become a basic text for first-year law students across the country


February 4, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Guest Blogger Richard Epstein on "Multiple Standards of Liability in Tort Law: Of context and categories"

At the past meeting of the American Association of Law Schools, the Torts & Compensation Systems Section, chaired by John Goldberg, devoted its session to an examination of my academic writings on the law of tort.  Over the years, I have written on many discrete topics in tort law, but the general focus of that panel was on the first work that I wrote on the subject, “A Theory of Strict Liability,” 2 J. Legal Studies 151 (1973), which was written as a self-conscious response to Richard A. Posner’s highly influential article, A Theory of Negligence, 1 J. Legal Stud. 29 (1972),

At stake in my original debate with Judge Posner was a question that is critical to the articulation of a sensible system of tort law, but of somewhat narrower scope that I had suspected at that time.  More specifically, the first and easiest class of tort cases to organize are situations that involve the physical harms that one individual commits to a stranger.  The simplest versions of this wrong are ordinary trespasses that involve the application of force by the defendant, or by instruments under his control, to the person or property of the plaintiff.  The more complex causal chains of indirect causation involve, for example, the setting of traps that are set off by the conduct of a plaintiff who, typically, is ignorant of the peril that has been set in his path.

My position was, and remains, that the simple rules of push/pull causation do better than any complex negligence inquiry that seeks to compare in familiar fashion three quantities on which it is always difficult to get a handle:  the burden of precautions as measured against the expected magnitude of the loss, which is captured by knowing the probability of harm and its severity in all alternative states of the world.  The fewer the hypothetical questions, and the simpler the causal arguments, the more reliable the judicial determinations.  In this case, it is not possible to show any reason why the use of a simple rule of these injuries leads to systematic distortions in the care levels that people will take in response to the situations that they face.

What is striking to me today, however, is not the debate over negligence and strict liability in these harm-to-stranger cases, but how both the negligence and strict liability rules do a very poor job of tracking any sensible system of liability in a raft of other contexts.  The first of these involve the occurrence of harm that arises out of some kind of consensual arrangement.  Against the general drift of modern law, I usually prefer that the tort rules in these cases be regarded as default principles that can be varied by private agreement that better reflects the joint intention of the parties.  Thinking of these tort rules as default rules raises the question of whether anyone in his right mind would want either the strict  liability or negligence rule in many discrete contexts. 

It turns out in medical malpractice, strict liability is a dead loser because the rate of accidents caused by medical intervention is high, but set off by the possibility of real benefits which provide full compensation from the ex ante perspective.  Forcing liability under strict liability shuts down the business. But the objective negligence standard, unconstrained by reference to custom, is in general a loser as well, for the same reason: it ignores the ex ante compensation from successful treatment. So the hard question is figuring out what custom entails in areas where there is a strong diversity of medical opinion.  The right way to do this is hard to guess, but the one clear loser is to carry over notions of what counts as care to avoid contact to cases of determining care levels in giving aid and comfort.  The Hand formula is useless there.

It is also quite beside the point in other contexts.  That formula maps very poorly into many occupier’s liability cases, where, especially with licensees, the question of whether a defect is known or latent has some real punch.  That same distinction should govern most product liability cases, I believe, and the modern tendency to use the risk utility test in this area almost always leads to the worst form of Monday-morning quarterbacking by judges and juries alike. A far better conception of the subject puts direct cost/benefit analysis on the back burner and asks this one question:  has the upstream provider of a good put the downstream user in a position that he or she has the needed information to make responsible decisions about its use? Avoid the traps, and let responsible parties then decide what risks to take in light of their own objectives.  Do not organize the system around the paternalist view that manufacturers have to control the behavior of downstream persons once they have lost control of their goods.

Both strict liability and ordinary negligence theories also tend to fare poorly in those cases where harms are inflicted by third parties on strangers.  One such context involves physical assaults on the defendant’s premises.  A second arises when one defendant operates as an inspector of the activities of a second responsible actor.  In both these contexts, the sensible approach is to impose general liability on the wrongful actor, without worrying about the position of, say, an insurer or inspector.  But if the wrongdoer is for some reason out of the picture, the tendency to reach out to the third party is great, if the alternative is no liability at all. 

The risk here of course is that strict liability is far too stringent.  Ironically, the same critique can be leveled against negligence liability under a protean cost/benefit analysis, which will also drive the insurers from the field when their assistance is needed most.  Yet at the same time, it is not wise to allow these persons to knowingly rubberstamp dangerous behavior of the very person over which they are supposed to exercise some independent oversight.  In the end, the best standard tries to use a recklessness standard to weave between the two extremes, buttressed in some cases by charges of “negligence plus,” which cover cases of egregious conduct that didn’t just miss some hidden danger, but which magnified the underlying risks.  These cases are critical where not only the injured party is in privity with the underlying actor, but of even greater relevance, where that party is not, as in cases of pollution or explosions, the one that hurt third persons. 

A short column cannot explore all the complex variations.  But it can point them out, as a stubborn reminder that context matters in tort, especially in those cases with strong contractual overtones.  Keeping all the balls in the air at the same time is a real challenge to any tort theorist, both within and outside of the law and economics tradition.  My sense of the field has surely evolved since I first wrote back in 1973.

- Richard A. Epstein
James Parker Hall Distinguished Service Professor of Law
University of Chicago

February 1, 2010 in Guest Blogger, Scholarship | Permalink | Comments (2) | TrackBack (0)

Thursday, January 28, 2010

Introducing Guest Blogger Richard Epstein

Epstein  Monday's guest blogger is Richard Epstein.  Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago, where he currently teaches Roman Law and Torts.    He has also been the Peter and Kirstin Bedford Senior Fellow at the Hoover Institution since 2000.

Prior to joining the University of Chicago Law School faculty, he taught law at the University of Southern California from 1968 to 1972. He served as Interim Dean from February to June, 2001.

He received an LLD, hc, from the University of Ghent, in 2003. He has been a member of the American Academy of Arts and Sciences since 1985 and a Senior Fellow of the Center for Clinical Medical Ethics at the University of Chicago Medical School, also since 1983. He served as editor of the Journal of Legal Studies from 1981 to 1991, and of the Journal of Law and Economics from 1991 to 2001. At present, he is a director of the John M. Olin Program in Law and Economics.

His books include Antitrust Decrees in Theory and Practice: Why Less Is More(AEI 2007); Overdose: How Excessive Government Regulation Stifles Pharmaceutical Innovation (Yale University Press 2006); How Progressives Rewrote the Constitution (Cato 2006); Cases and Materials on Torts (Aspen Law & Business; 9th ed. 2008); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003); Torts (Aspen Law & Business 1999); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998): Mortal Peril: Our Inalienable Rights to Health Care (Addison-Wesley 1997); Simple Rules for a Complex World (Harvard 1995); Bargaining with the State (Princeton, 1993); Forbidden Grounds: The Case against Employment Discrimination Laws (Harvard 1992); Takings: Private Property and the Power of Eminent Domain (Harvard 1985); and Modern Products Liability Law (Greenwood Press 1980). He has written numerous articles on a wide range of legal and interdisciplinary subjects.

He has taught courses in civil procedure, communications, constitutional law, contracts, corporations, criminal law, health law and policy, legal history, labor law, property, real estate development and finance, jurisprudence, labor law; land use planning, patents, individual, estate and corporate taxation, Roman Law; torts, and workers' compensation.

- SBS  

January 28, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, January 25, 2010

Guest Blogger Mike Green: "Let's Be Careful Out There"

“[I]n this atmosphere of economics now a change in a fundamental part of law affecting landholders is bound to have an effect on the cost of homeowner insurance if the word is out that there is a duty to trespassers. . . .

    So before we move into this I ask that this be given very careful consideration because I believe in the courts this will bring about more confusion and its impacts on insurance could be very, very hard for people who are ordinary homeowners who right now are struggling to pay their insurance at this time.”

Victor Schwartz

American Law Institute Annual Meeting

May 18, 2009

    The question of the impact of tort law changes on liability, costs, and insurance premiums lurks in many areas, although to date the primary area of inquiry has been in the medical malpractice field.* Victor’s statement addressed a draft Chapter of the Third Restatement of Torts that proposed rules imposing a duty of reasonable care on land possessors to all entrants on the land, save for a small class of trespassers, denominated flagrant trespassers. Flagrant trespassers are those whose entrance on the land is in egregious disregard of the owner’s rights and would include those who enter with the intent to do mayhem or commit other serious crimes while on the property. Victor, the pre-eminent lobbyist for entities that are subject to tort liability or insure against it, was arguing that liberalizing the duties imposed on land possessors could cause real hardship by increasing homeowners’ insurance premiums.**

  Such arguments are common, but rarely is empirical data available or, if it is, analyzed. We were able to do some empirical inquiry on this question, unfortunately not until after Victor’s comment. Despite his dire predictions and the absence of any evidence refuting it, I am pleased to report that the ALI membership voted to approve the Chapter. Nevertheless, this blog provides me a preliminary opportunity to respond to the claims made by Victor and raise a cautionary flag about unsubstantiated forecasts of calamity due to progressive reform of tort law.

    We realized, while researching and writing the Chapter on land possessor duties, that a huge natural experiment had taken place in this country from 1968 through 2009. During that period, roughly half the states had changed their law from the status-based duty rules inherited from feudal England (i.e., duties varying depending on the status of the entrant on the land) to one imposing a unitary duty of reasonable care on land possessors to all entrants. (Some states included trespassers in this reform; others limited it to invitees and licensees.)

    These tort law changes would permit an examination of their impact of these changes on the number of lawsuits and the magnitude of liability. We (my co-authors include Michael Heise of Cornell Law School and Brett Green of the Kellogg Graduate School of Business at Northwestern) were able to obtain data on a state-by-state basis from the Insurance Services Office, which gathers data from insurers and reports to state insurance commissions. ISO compiles composite data, and we secured that data for homeowners and renters’ liability claims and losses for a 20-year period from1989 through 2008.  

    Our initial examination consisted of the eight states that had reformed their land possessor law during the 20 years for which we were able to obtain data. Looking at the claims and loss experience before and after the change provides some evidence about whether the tort reform intervention had an impact.*** Below are graphs showing the losses (in dollars adjusted for inflation) per occupied unit (including homes, condominiums, and apartments) and the number of claims per 100,000 occupied units that occurred in each state over the 20 year period. Losses and claims are scaled on the left hand Y axis and shown in a blue line, while the legal rule of the state is scaled on the right side of the Y axis and shown in a dotted and discontinuous red line. A value of one on the “reform status” scale corresponds to the historical status-based duty rules, with only invitees owed a duty of reasonable care. Two reflects the most modest reform, providing both invitees and social guest with a duty of reasonable care; three includes all licensees in that duty; and four signifies a duty of reasonable care to all entrants, including trespassers.




    Because losses and claims are attributed to the year in which the loss event occurred, a change in land possessor duties could affect claims and losses in years before the change occurred.**** We would expect claims to be the most sensitive measure of the impact of a change in tort law that expands those who are owed a duty of reasonable care. That expansion should produce more claims, but the amount recovered, especially by trespassers, should not increase proportionately. Yet, in the end, losses are more important for the cost of insurance than claims.***** 

    Eyeballing the claims graphs, only two states appear to have any association between the magnitude of claims and land possessor duty reform. Most states are either unaffected by the change or show a decline in claims after the reform. Two states (Connecticut and and West Virginia) do show an increase in claims, but inferring a causal relationship is undercut by the decline in claims that begins immediately thereafter. Nevada is ambiguous with a small spike that could be associated with reform, but which is also undercut by the subsequent decline. (It does appear that something else was going on that reduced claiming from 1995 through 2008.)

    With regard to losses, there is considerable variability from year to year and in all states except for Connecticut, any increase around the time of the reform appears simply to reflect that random fluctuation. Connecticut does have an increase in losses associated with its reform, but it is the only such state. Interestingly, Connecticut’s reform was among the most modest, adding only social guests to invitees as those to whom a duty of reasonable care is owed. 

    We’re at too early a stage to say anything definitive, and empirical research about legal systems often does not provide strong enough evidence for firm conclusions. Yet the evidence seems to point away from any noticeable impact on losses or expenses to insurers from these changes. We have not yet obtained data on premiums. However, premiums are affected by a number of other factors that will be difficult to identify and measure. Losses, by contrast, are not affected by those other factors and are more directly tied to legal changes than premiums. In short, losses are more sensitive to changes in tort law than premiums.****** Moreover, even if there is an impact on losses and costs for liability coverage, those costs are dwarfed by losses due to hazards covered by the first-party segments of those policies, the latter comprising approximately 90% of the total costs for homeowners’ policies. In short, we have found nothing to support Victor Schwartz’s statement in the preface about the consequences of reforming the law relating to land possessor’s duties. This suggests caution–a trait not often displayed by lawyers engaged in arguing or litigating on behalf of clients–in predicting the impact of a change in tort law on claiming, losses, and insurance premiums. It also suggests skepticism about such claims until empirical evidence can be obtained and analyzed.

--Mike Green

*See, e.g., Ronen Avraham, An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Settlement Payments, 36 J. Legal Stud. S183 (2007).

**A change in land possessor duties would have its most dramatic impact on liability of those who own or rent residential property. Businesses that open their property to the public are subject to a duty of reasonable care to virtually all entrants.

***We have not yet performed analyses that will attempt to account for other factors that may affect claims and losses.

****We would expect changes in claiming primarily to show up following the date of legal change. Most claims are straightforward and therefore can be resolved within a few months. Thus, the time from event to claim resolution is relatively short. By contrast, complicated claims, which likely correspond to higher-value claims, consist of one-third claims, take significantly longer to resolve and if litigation results, can extend for several years. We suspect these claims constitute a higher proportion of the losses and could produce an effect that looks like it precedes the legal intervention in the graphs above.

*****Losses are not the exclusive source of cost for liability insurers. They also incur costs in hiring attorneys to represent insureds when suit is filed and administrative costs in processing any claim that is filed.

******See Martin F. Grace & J. Tyler Leverty, How Tort Reform Affects Insurance Markets (unpublished manuscript 2/27/2009).

January 25, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 20, 2010

Monday's Guest Blogger: Mike Green


Mike Green is the Bess and Walter Williams Distinguished Chair at the Wake Forest University School of Law. He currently serves as a Co-Reporter for the Restatement (Third) of Torts: Liability for Physical Harm, a publication of the prestigious American Law Institute. Mike is a co-author of one of the best selling Torts casebook and of the most popular Products Liability texts. He was ranked as the 6th most cited law professor writing about torts and product liability in a recent survey. He is a co-author of the Reference Guide on Epidemiology in the Federal Judicial Center’s Reference Manual on Scientific Evidence, which serves as a reference on scientific disciplines for federal judges. He has a pilot’s license and enjoys flying around North Carolina and beyond. He and his wife, Carol, have two sons and a daughter.


January 20, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

Guest Blogger Monday Spring 2010 Lineup

We are delighted to announce the Guest Blogger Monday lineup for the Spring 2010 semester:

1/25--Mike Green (Wake Forest)

2/1--Richard Epstein (Chicago)

2/8--Kenneth Abraham (Virginia)

2/15--Alan Calnan (Southwestern)

2/22--Anita Bernstein (Brooklyn)

3/1--Kenneth Simons (Boston University)

3/8--Michael McCann (Vermont)

3/15--James Henderson (Cornell)

3/22--Richard Nagareda (Vanderbilt)

3/29--David Owen (South Carolina)

4/5--Jane Stapleton (Texas/ANU)

4/12--Phoebe Haddon (Maryland)

4/19--Jennifer Wriggins (Maine)

4/26--Andrew Klein (Indianapolis)

5/3--Mark Geistfeld (NYU)


You can find a list of the fall guest blogger posts here.  We look forward to a variety of interesting and thoughtful posts again each Monday this Spring.  


- Sheila & Chris

January 13, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 22, 2009

Our Thanks to the Fall 2009 Guest Bloggers

We really enjoyed hosting our Fall 2009 guest bloggers.  Our guests explored a wide array of topics: 

Thanks to everyone who participated this fall.  Guest Blogger Monday will return in January.

- Sheila & Chris 

December 22, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, November 30, 2009

Guest Blogger Jason Solomon: Thanksgiving, Football and Torts

Thanksgiving, Football and Torts


If you're a real Torts person -- not someone who just happens to teach the class, take it as a first-year student, or practice in the area -- you see the world as one big kaleidoscope of ever-shifting opportunities for tort claims. Our recent holiday of Thanksgiving and its football tradition is no exception.


Let's start with the recreational. One of my favorite cases is Knight v. Jewett, a 1992 CA Supreme Court case on the difficult issue of how assumption of risk fits into a comparative negligence regime.  It arises out of a touch-football game with a group of friends, the kind of game that might happen on Thanksgiving (though this one was at halftime of the Super Bowl). The game was co-ed, and I never know with whom to be more annoyed: the defendant Michael Jewett, who appears to have taken the game a bit too seriously; or plaintiff Kendra Knight, for seeking legal recourse after a touch football injury.


Another big Thanksgiving football tradition now is the televised professional games that offer a great escape at family gatherings. And the major pro football case in torts (in coursebooks at least) is Hackbart v. Cincinnati Bengals.This case involves the question of whether pro football players – in taking the field -- implicitly consent to random, intentional acts of violence, like the gratuitous forearm to the back of the neck that Dale Hackbart of the Denver Broncos took in a 1973 game against the Bengals.


The main pro football player I think of these days, though, when I think about torts is Ben Roethlisberger, the defending champion Pittsburgh Steelers’ quarterback.  Before the start of this season, Roethlisberger was accused of rape by a hotel employee in Nevada. She did not go to the police at the time of the incident, apparently because she feared the hotel’s management would side with the celebrity athlete, but later brought a civil suit. A similar scenario played out with basketball star Kobe Bryant a few years ago.


This raises an interesting issue on the boundary of crime and tort, which is: why do these Jane Does get to bring tort suits? If the victim declines to complain to the police, or even if she had and the prosecutor declined to bring the case, shouldn’t that be the end of the matter? Is this the torts system run amok again, with a young woman seeing some deep pockets to go after?

Ellen Bublick has documented the growth in civil suits by sexual assault victims, and offers some thoughts on the advantages and disadvantages of bringing such claims, in an interesting piece available here.  From a policy perspective, though, why even allow such suits? I suppose one can tell a typical compensation/deterrence story: because the “reasonable doubt” burden is so high in criminal proceedings, we need an extra measure of deterrence, and because compensation is not generally available in criminal proceedings, tort fills a gap there as well. 


I find neither rationale very compelling. We could make any number of changes to the criminal justice system itself to increase deterrence -- changes to the substantive elements of the crime, the severity of the sentence, enforcement resources -- without deploying a separate legal regime. And the increased prevalence of victim compensation funds in criminal justice means that this remedy can be pursued by prosecutors as well.


A more appealing explanation lies in the civil-recourse theory developed initially by Ben Zipursky, and elaborated on in work co-authored with John Goldberg and by Goldberg himself. If tort provides the means for individuals to act against those who have wronged them, as recourse theory tells us, we can see why we might provide such a right of action: so the hotel employee need not depend on prosecutorial discretion to be able to hold her wrongdoer accountable. 

To be sure, we can’t make it too easy to bring these lawsuits, or else people might be held accountable, or forced to settle accounts, when they have not behaved wrongfully towards anyone. Indeed, Roethlisberger’s lawyer would say that is exactly what happened here, and has produced emails which, if legitimate, serve to undermine the plaintiff’s account.  But those who say the hotel employee was just out to “extort” the wealthy athlete need to explain why her lawyer offered to settle with an apology and donation to charity from Roethlisberger.


What purpose do such lawsuits serve? Assume the hotel employee was indeed raped. A tort claim allows her to stand up to the wealthy, physically imposing man who might have said “Do you know who I am?” or “Who’s going to believe you?” in response to the threat of complaint.  Giving Jane Doe recourse here reinforces a norm of social equality, and her own moral worth. It allows her to say to Roethlisberger: “You can’t do that to me,” and for the statement to have real force to it.


This view of tort is less safety net, and more slingshot. Individuals who have been pushed back or thrown down can come right back at their wrongdoer, with the help of an advocate.  Many will no doubt see this as an overly romanticized view of tort law and one at odds with much of contemporary practice.  But I’d welcome your thoughts, either on the specific sexual assault context or the broader theoretical account of tort, discussed a bit more here. 


--Jason Solomon

Assistant Professor of Law

University of Georgia School of Law

November 30, 2009 in Guest Blogger | Permalink | Comments (2) | TrackBack (0)

Saturday, November 28, 2009

Guest Blogger Ben Zipursky’s Reply to Drug and Device Law Blog

I am delighted to have had responses from several thoughtful commentators, including well known voices in products liability law – Restatement Reporter Michael Green, Mark Herrmann and Jim Beck of the Drug and Device Law Blog, and my own colleague, George Conk, who has long been a leading commentator from the plaintiffs’ side in drug-and-device law. 

I briefly responded to Mike Green and George Conk in a prior comment; their principal point was that Riegel was not really justifiable; Mike strikingly pointed out that the FDA is not even required to opine on device safety, making the device preemption argument even weaker, in some ways.    I agree that Riegel was wrongly decided, in part for the reasons they put forward, but most notably because I do not think it is really justifiable as an express preemption case, because I do not think a verdict in a products liability action counts as state law that is a requirement, and I do not think any of the Court’s precedents necessitated this otherwise unjustifiable analysis.  

A different question, of course, is whether the Court’s precedents prior to Riegel permitted it to reach this result on express preemption, without any implausible stretches in the precedent.   The answer is yes; Cipollone and Geier actually paved the way for Justices who wanted to reach this conclusion.   That does not mean that I believe the conclusion was correct as a matter of statutory interpretation or mandated by those precedents.   I do not.   Indeed, although I happen to be quite fond of Justice Scalia’s textualism in a number of settings, I do not think a textualist reading justified where he took the case, except when parts of the text were twisted by precedents there was no compulsion to follow.

The larger challenge is from Jim Beck and Mark Herrmann, on the Drug and Device Law Blog (“DD”, for short).   The exceptionally informative response on the blog corrected my off-the-cuff statement that most device cases are design defect; my gratitude for that.  As DD suspected, my main point was that design defect does not play a big role any longer in drug cases, but – if Riegel was in any way representative – continues to do so in device cases.

DD’s larger points were these:
1.   There might have been perfectly good reasons to think that the Medical Devices Amendments should be read as preempting state tort liability, quite apart from reasons for thinking there should be preemption for drugs too (which DD also believes).   One is historical (states were regulating more in the 70s, when the devices amendments came through); a second is that the generally smaller nature of device companies counts in favor of thinking they need greater protection; a third is that the shorter active life of a device type (relative to a particular prescription drug) also means that such companies will need greater protection.

2.   The “warning defect v. design defect” distinction does not work to explain the distinction between Levine and Riegel, and in any event there is no reason to speculate on why the cases were decided differently given that the Court actually provided its reasons, and there is no reason to take what the Court said at face value (unless one is an academic who has too much time to spend on rank speculation).

As to DD’s first point, I find the historical background quite illuminating.   Of course, this is just the kind of speculation about legislative thinking that Justice Scalia bridles at, and it is unsurprising that we see little of this.  In any event, it all goes to the question of why they might have wanted preemption of state requirements, and my whole point is that a verdict in a case involving the product, where a jury has decided this is hardly a requirement.  It is true that I closed my blog post by asking why Congress might have drawn a distinction on preemption of requirements, and I am grateful for the historical analysis.   But this does not take us anywhere on the issue of preemption of tort liability.

As to the second point, I think it is fair enough to ask what my problem was, and criticize me for, in effect, fabricating a problem.   There is no question that Riegel’s holding is not about design defect theories, and that it sweeps in failure-to-warn.   And there is no question that the Court did not purport to distinguish Levine in anything like the way my analysis suggested.   Moreover, I could not agree with DD more that lawyers and law professors alike should listen to what courts actually say, rather than making things up and speculating.   And I agree that the plaintiff in Levine had virtually nothing useful to say on what the warning should have been, and why that would have made a difference (although I think Levine was correctly decided by the United States Supreme Court on preemption, I think it was wrongly decided by the Vermont trial judge who denied Wyeth’s motions for judgment as a matter of law; these were not before the U.S. Supreme Court, of course).

Finally, even if I were interested in the speculation about judicial psychology, the broad and squishy distinction between design and warning cases is not where I would go. Although I, as a torts professor who worries a lot about causation, perceived the fact pattern of Diana Levine’s case as one that was really strong for Wyeth, I think I am quite peculiar.   Some of the Justices probably felt a lot like the jurors and the majority of the Vermont Supreme Court; they felt bad for a healthy, appealing Vermont guitarist whose migraine led to gangrene because of Wyeth’s drug (on a fairly easy to present version of “because of”).    There was a major publicity campaign for Levine.   Plus, several of the Justices were in an anti-Bush mood, and the FDA Preamble argument bit back, evidently enraging some of the Justices.   Riegel was easy to explain because it fit nicely into the trend of cases the Court had been deciding, where the presence of a statutory preemption clause provided a skeleton onto which they could place a tort preemption argument that they believed was sound as a matter of policy.   Levine was the odd case, from a predictive point of view, but the powerful facts and the anti-Bush sentiment seemed to play a significant role.  In any event, that would be my speculation.   And it is sort of interesting, but it is not the issue I tried to raise.

The issue I was trying to raise is not about speculation.   It is an effort to understand the legal scheme we now have.   I would have thought that practicing lawyers would have a better sense than I of just how odd this scheme might look to business people, consumers, and lower court judges.    I think it is good for law professors to step back and try to get a picture of what the system would look like to those who are not caught up in its details and the adventures of those who are trying to push it in one direction or another; perhaps there are certain domains where law professors might even have an edge in doing so (I kind of doubt it).  

When one stands back and looks, there is a pretty dramatic difference right now between devices and drugs.  Clearly, the way to explain it historically is by looking at the different statutes.   DD’s background on why the device statute might have turned out more protective (at least expressly) is helpful.   But I think a rationalizing instinct is often a good one try to exercise, and that is what I was trying to do. 

My current thinking on that front is that my suggestion of “design defect versus warning defect” is inadequate to rationalize the distinction.    However, I continue to believe one part of what I was saying was along the right track.   No doubt, having common law causes of action around for products that also need FDA approval is socially a very expensive thing to do (not just in money, but in reduced availability of new products, etcetera).   Of the many reasons for doing it, one is the idea that the tort system might provide findings of dangerousness and corporate conduct that present substantial threats to individuals and the public, where regulators perceive the same fact pattern quite differently, and that on some of these occasions, the regulators are in the wrong and the jury is onto something important.

I continue to think that the Justices – and many parts of our legal system – have a certain picture in their mind of what this “the jury gets it right and saves millions of future lives in the long run” picture is about.   It is a case with a drug that is widely used notwithstanding the manufacturer’s knowledge of hazards, which  have never been properly disclosed.   My suggestion would be that the conviction that juries might be onto something in some cases like this traces in part to the idea that juries can be quite good at saying when
information was really something doctors and patients should have been told – at judgments about informational wrongdoing.

Our system is evidently not willing to give up on this part of our tort  law.   Relative to this commitment, a case like Riegel does not seem too threatening, but a case like Levine (rightly or wrongly) does seem
very threatening.

- Ben Zipursky
Fordham University School of Law

November 28, 2009 in Guest Blogger, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 25, 2009

Monday's Guest Blogger: Jason Solomon


Jason M. Solomon is Assistant Professor of Law at the University of Georgia School of Law.  His writing focuses on the theory and practice of civil justice, and his research interests also include regulatory theory and policy, the law of the workplace, and legal education. Since entering the legal academy, Solomon's scholarship has been published in the Northwestern, Vanderbilt and Texas law reviews.

Prior to joining the Georgia Law faculty, he was chief of staff and counselor to the president of Harvard University. He previously served as a judicial law clerk to Judge Chester J. Straub of the U.S. Court of Appeals for the 2nd Circuit and Judge John Gleeson of the U.S. District Court in Brooklyn. Before entering the law, he worked in the White House and the U.S. Treasury Department.

Solomon earned his bachelor's degree magna cum laude from Harvard University and his Juris Doctor from Columbia University, where he served as notes editor of the Columbia Law Review and was a James Kent Scholar.


November 25, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

Guest Blogger Ben Zipursky on "The Differential Treatment of Medical Devices and Drugs in Preemption Doctrine: A Justified Distinction?"

One year ago, many tort scholars and securities analysts believed that a major shift was about to occur in products liability law: our nation’s highest court was about to declare that claims against pharmaceutical manufacturers were preempted.   We all know that this did not occur, that in the much-awaited decision of Wyeth v. Levine, six members of the Court decided to leave state tort law for prescription drugs alone, at least for the moment.    Although I believe that the case was correctly decided, I am happy to admit that the decision came as something of a surprise.   Part of the reason for that surprise was the Court’s lopsided decision in favor of preemption just one year earlier, in Riegel v. Medtronic.   There, eight members of the Court voted in favor of a broad preemption doctrine in medical device cases.   Five of the Justices who voted for preemption in Riegel – Stevens, Kennedy, Thomas, Souter, and Breyer – voted against preemption in Wyeth.     

The combination of preemption in Riegel and no-preemption in Wyeth does not present any truly sharp inconsistencies or paradoxes, but it nevertheless merits exploration.   There is no actual contradiction between the cases for many reasons.   Most notably, the two cases presented questions of statutory interpretation, but did not involve the same statute. To get right to the point, Riegel applied a statute that actually contained an express preemption clause, while Wyeth applied a statute that lacked such a clause.   From this point of view, one could have known everything one needed to know about Wyeth by looking at Justice Stevens’ concurring opinion in Riegel, which essentially announced: “Make no mistake about it; I am voting for preemption here only because there is a preemption clause in the text of this statute.”  

Nevertheless, it is quite unsatisfying to explain away the distinction between these cases simply by reference to the textual difference.   To begin with, if we are candid we must admit that there was virtually no federal preemption in any cases involving FDA approved products a couple of decades ago; there has been a strong, industry-based push to create preemption doctrine, and it has been quite successful.   Where it matters most, however – the Supreme Court – there is a striking discrepancy.   There is a clear acceptance for (a large class of) medical devices and a clear rejection (so far) for drugs.  Yet the policy motivation is exactly the same – it makes sense to defer to federal agency expertise, and to forestall the costly state-by-state variations, especially given the relatively low probativeness of jury decisions on safety.   

Second, notwithstanding the eight votes for Medtronic in Riegel, the statutory interpretation argument in that case is far weaker than the Court admitted.   The Court has been fooling around with the concept of a “requirement” in express preemption clauses.   There is no evidence that Congress was conceiving of state tort liability as a form of legal requirement and, if there is any straightforward reading of the text, it does not cut in favor of preemption.    Obviously, there was already good precedent for Justice Scalia to build upon (Cippollone and Geier) to make this argument.   But those arguments were far from unassailable, both because each came with a fractured Court whose members wrote highly nuanced analyses, and because each of those products (cigarettes, airbags) was plainly unique in a way that mattered to the significance of agency decisionmaking.   More importantly, the precedents themselves reflected that many of the Justices were engaged by pro-preemption motivations.

The other side of the puzzle is that, while nothing in the text of the statute applicable in Wyeth permitted an easy, across-the-board express preemption argument there, plenty of opportunities to rule for Wyeth presented themselves.   Quite apart from the opportunities for deference to the FDA, which had taken a strong pro-preemption position, there were quite powerful implied preemption arguments made.   And the analogy to Geier, although imperfect, was quite strong.    Moreover, as Justice Alito’s quite fact-based and careful dissent illustrates, there was a fairly persuasive argument for Wyeth on the facts.   

And now, let’s admit that part of the point of preemption doctrine is that the Court gets to play the role of rationalizing the big picture scheme of the law.   If two aspects of the law – state and federal – are too badly out of whack with one another, then the Court will exercise its power to create a smoothing-out of the law.   It is odd, then, that the Court seems happily to countenance a stark difference in treatment between device law and drug law.  The discussion above is merely meant to remind us that there was nothing inevitable about this.   Finally, even if one were to take the view that statutory differences fully warranted the discrepancy, one would want to ask why medical device makers were given so much more protection against state tort liability.

This is all by way of a lengthy lead up to a tentative suggestion, one that is truly meant to invite discussion. Riegel – like most medical device cases (I believe … but would be happy to be corrected) – is a design defect case.   Wyeth – like most prescription drug cases – is a failure-to-warn case.    That means that, at a gestalt level (and, to some extent, at a practical level), the Court was deciding in Riegel whether juries would be allowed to displace FDA decisions on medical device design, while the Court in Wyeth was deciding whether juries would be allowed to displace FDA decisions on what information drug companies must convey to prescribing healthcare providers.   Is it possible that the difference between displacing design decisions and displacing informational decisions is part of what led us to where we are now?   If so, would this be a rational line to draw?   Does the difference between the two types of questions shed any light on why medical devices and drugs might be drawn differently?    (Is this distinction overdrawn?)   If so why?

When I put this question to myself, my mind tracked over to the somewhat analogous field of medical malpractice.   As torts professors and medical malpractice lawyers know, courts and legislatures do not look kindly on juries second-guessing experts on technical and scientific questions regarding the standard-of-care in medical malpractice cases.    It is black-letter law that juries cannot second-guess the standard-of-care accepted by experts in the field; T.J. Hooper does not apply to medical malpractice.   However, in a large number of jurisdictions today, informed consent cases work differently: jurors may second-guess what experts have decided is the right level of information disclosure.    That is, in part, because courts are willing to empower juries to second-guess experts on normative decisions about how much safety information should be disclosed.  This is the so-called “patient rule” rather than the “physician rule.”

The question raised is thus: does the Riegel/Wyeth dichotomy derive from a distinction similar to the medical malpractice/informed consent distinction?   Are the five justices who voted for Medtronic and against Wyeth preserving juror power to second-guess experts on informational decisions? If so, is this a justifiable position to take?

N.B. This contribution is written in the spirit of conversation, not scholarship.   Many of the suggestions thrown out are off the cuff – some, perhaps, are demonstrably  false.   Feel free to point this out, if so.

- Professor Benjamin C. Zipursky
Fordham University School of Law

November 23, 2009 in Guest Blogger | Permalink | Comments (5) | TrackBack (0)

Thursday, November 19, 2009

Introducing Guest Blogger Ben Zipursky

Benjamin_zipursky  Monday's Guest Blogger is Ben Zipursky.  Zipursky is currently the James H. Quinn '49 Chair in Legal Ethics and Professor of Law at Fordham Law School, where he teaches Torts, Law & Philosophy, Advanced Torts ‑ Defamation & Privacy, Tort Theory, and Jurisprudence.  He also served as Associate Dean at Fordham from 2001-2003.

Professor Zipursky is a leading scholar in torts, tort theory and jurisprudence, and has published more than forty articles and chapters on subjects ranging from punitive damages and duty in tort law to the varieties of pragmatism within legal philosophy.   Zipursky is also a co-author of Tort Law: Responsibilities and Redress (Aspen Publishers, 2004) (with fall Guest Bloggers Tony Sebok and John Goldberg), and also Torts: A Short Introduction (Oxford University Press forthcoming 2010) (with John Goldberg).

In addition to his law degree, Zipursky holds a Ph.D. in philosophy from the University of Pittsburgh.  Before joining academia, Zipursky clerked for the Honorable Kimba M. Wood (S.D.N.Y), and practiced as a litigation associate at Arnold & Porter (New York).    He has taught as a Visiting Professor at Columbia Law School, Vanderbilt Law School, and Harvard Law School.  


November 19, 2009 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, November 16, 2009

Guest Blogger Tim Lytton: "Is the Tort System a Litigation Lottery?"

   The tort system is frequently described by critics as a “litigation lottery.” For example, in their best-selling book Nudge, Richard Thaler and Cass Sunstein compare medical malpractice litigation to a lottery based on the assertion that many plaintiffs who suffer no harm or have not been treated negligently nonetheless receive compensation. They point to the variability in pain and suffering and punitive damages awards as further support for the comparison. According to this view, even if erroneous findings of liability and high awards are rare (as the weight of empirical evidence seems to suggest), they nevertheless make litigation into a game of chance. As leading tort reform advocate Ted Frank explains on, “[t]he nature of a litigation lottery is that the availability of potentially huge damages justify bringing a meritless claim, so long as there is some small chance that the combination of an outlier judge and an outlier jury will produce a jackpot that compensates for the risk that the judge/jury combination will get it right.”


Yet the possibility of erroneous outcomes and variable awards does not make tort litigation a lottery. Indeed, the very possibility of identifying some outcomes as erroneous fundamentally distinguishes litigation from a lottery. Winners in litigation are determined not by chance but by applying the law to the facts of a case. Of course, there is always the possibility of an erroneous outcome when a judge misapplies the law or the jury misconstrues the facts. But this is quite different from the process of random selection whereby lottery winners are selected. It makes no sense to argue that a randomly selected lottery winner should not have won. In contrast, it is certainly possible to criticize litigation outcomes as erroneous—to argue that the prevailing party should not have won—precisely because litigation, unlike a lottery, is governed by the rule of law. Suggesting that the error rate of a decision procedure makes it a lottery is a category mistake since the very possibility of identifying an erroneous outcome, by definition, makes the procedure non-random and therefore not a lottery. (One could criticize the outcome of a lottery on the basis that it was not random—for example, where the lottery is “fixed”—but that would render it no longer a lottery.) Of course, for practical purposes, the error rate of a decision procedure could be so high as to render outcomes practically random. But no one, not even the most ardent advocates of tort reform, has suggested that high damage awards based on erroneous findings of liability are anything but statistical outliers.


One might argue that there is a randomness as to whether an individual who files a false claim of medical malpractice will be lucky enough to draw the rare judge or jury who will produce an erroneous judgment in his favor. But this random distribution of errors does not make a flawed process into a random one. While bank depositors stand a random chance of an accounting error in their favor, this does not make depositing one’s money in a bank tantamount to playing a lottery.


One might argue, instead, that the tort system operates like a lottery not because of the chances that false claims will succeed but because only a small percentage of negligent actors are held liable. According to this view, the low probability that a doctor who commits medical malpractice will actually be successfully sued makes the system a lottery from the defendant’s point of view. Does a low probability of being held liable make the process a lottery? Does the fact that those who cheat on their taxes stand some random chance of avoiding detection make the tax system a lottery? In one respect, yes, one could argue that negligent actors are subject to a liability lottery and that dishonest taxpayers participate in an audit lottery. Many areas of law involve lotteries in this sense: the same could be said of the chances of getting a speeding ticket or being arrested for robbery or of being the victim of a breach of contract.


But I suspect that critics of the tort system mean something else when they describe the tort system as a litigation lottery. They mean to identify a feature of the tort system that distinguishes it from other areas of law such as criminal and contract law. They mean to suggest that tort litigation is arbitrary in way that these other areas of law are not, that tort litigation outcomes are not, on some level, governed by the rule of law to the same degree as are other parts of the legal system. Ultimately the problem with the lottery analogy is that it proves too much—if the tort system is like a lottery insofar as negligent defendants stand only a random chance of being held liable, the same can be said about the enforcement of rights in many other areas of the law. There is no basis for charging that the tort system is any more or less a lottery than these other areas of the law.


Comparing tort litigation to a lottery is, at best, unhelpful for understanding the sources, frequency, and magnitude of error in the tort system. At worst, it is a rhetorical strategy aimed at undermining public confidence in the civil justice system in order to strengthen popular support for tort reform. In the rush to reform the tort system, we would be well advised to ignore this kind of rhetoric and take a more careful look at what its real shortcomings are.

For a more extended analysis of Thaler & Sunstein’s critique of medical malpractice litigation and their proposals for reform, see Tom Baker and Timothy D. Lytton, Allowing Patients to Waive the Right to Sue for Medical Malpractice: A Response to Thaler and Sunstein, forthcoming in Northwestern Law Review and available now on SSRN.


Timothy D. Lytton

Albert and Angela Farone Distinguished Professor of Law

Albany Law School 

November 16, 2009 in Guest Blogger, Scholarship | Permalink | Comments (2) | TrackBack (0)

Friday, November 13, 2009

Guest Blogger John C.P. Goldberg: What's Wrong with Torts?, Part II

What’s Wrong with Torts (II)


In my previous post I suggested that torts are legal wrongs rather than moral wrongs, and that the concept of a legal wrong is not vacuous, but instead refers to the violation of a directive to refrain from interfering with important interests of others, such as bodily integrity.  In this entry, I refine the definition of torts as wrongs, again based on a paper that Ben Zipursky and I are writing.


The Relationality of Tortious Wrongdoing


Torts always involve the violation of relational directives – that is, directives as to how one must act or refrain from acting toward a particular person or class of persons.  Other legal wrongs such as crimes and regulatory offenses can be relational but they need not be.  The purchase and possession of a controlled substance is a criminal wrong but it is not a relational wrong and therefore cannot be a tort.  A gratuitous physical attack on someone is a relational wrong that is both a crime and a tort.  Inadvertence toward another’s physical well-being can be the basis for tort liability but usually will not count as a crime.  


Each tort is defined so as to be a relational wrong.  A libel consists of the publication, in writing, of a defamatory statement about a particular person or persons.  A fraud is a deceiving of another.  This relational aspect to torts is partly what Cardozo had in mind when he famously asserted in Palsgraf that there is no negligence “in the air.”  Carelessness provides the basis for tort liability only insofar as it is carelessness toward a person or class of persons.


To describe torts as relational legal wrongs is not to say that torts require a pre-existing relationship between wrongdoer and victim.  A driver who drives carelessly with respect to a pedestrian is subject to liability for negligence if his careless driving proximately causes physical harm to the pedestrian.  That they are strangers to one another does not in any way undermine the idea that the careless driver was careless as to the pedestrian.


Torts as Injurious Wrongs 


It is common today to think of wrongful conduct in terms of two components: conduct and consequences.  It is equally common to suppose that one can sensibly talk about wrongfulness only with respect to conduct, not consequences.  The latter are said to be a matter of brute luck.  For example, the wrongfulness of negligence is said to reside in the careless conduct of the wrongdoer.  What happens as a result of that conduct – the victim’s injury – is just a matter of fact that, for reasons of policy, tort doctrine has deemed relevant to setting the sanction to be imposed on the careless actor for his wrongful action.


Although common, this view is mistaken and pernicious.  Torts are not wrongful acts that happen to generate adverse consequences for another.  Torts are injurious wrongs.  To say the same thing, the directives contained in tort law do not enjoin actions per se.  They enjoin injurings of various sorts.  Take battery.  On the standard but mistaken view, judicial decisions defining battery instruct us as follows:  “Avoid actions that you hope will cause, or know will cause, the harmful or offensive touching of another.  If you don’t avoid such actions, you will have done wrong.  And if it turns out that your wrong ends up causing the right sort of consequence for another, you will be ordered to indemnify that other her losses.”  A better rendition of the directive contained in the tort of battery is this: “Don’t touch others in ways that tend to be harmful or are widely regarded as offensive.”  On this rendering of battery, until there is a touching no wrong has been done.  Likewise, the directive built into negligence law is not properly characterized as: “Act with due care toward others.”  It is instead:  “Do not injure someone by acting without due care toward him or persons situated like him.”  Until there is injury, the wrong of negligence has not been committed.


Connecting the Dots


Torts are violations of duly enacted directives that enjoin us from injuring others by acting wrongfully toward them.  They are legal, relational, injurious wrongs.  Only when one understands that torts are wrongs of this special sort can one make sense of why tort law connects the commission of a wrong to the filing of lawsuits for damages and other remedies.  By definition, torts are legal wrongs that have victims – the person or persons who has or have been wrongfully injured by virtue of a violation of one of tort law’s directives.  This is why it is natural and appropriate for tort law to grant to the victim a right to respond through law to obtain redress for the wrong done to her.  The particular way in which tort law defines wrongs and the particular form of response it permits are two sides of the same coin.        


--John Goldberg

Professor of Law

Harvard Law School

November 13, 2009 in Guest Blogger | Permalink | Comments (1) | TrackBack (0)