Monday, September 11, 2017
Hanoch Dagan & Roy Kreitner have posted to SSRN The Bureaucrats of Private Law. The abstract provides:
Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory bureaucracies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this collectivist mold, but not all. A significant subset of the regulatory practice deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people. This Essay focuses on these private law bureaucracies, which regulatory theory marginalizes or neglects.
Our mission is threefold. Descriptively, we show that many agencies are indeed best understood as devices that supplement or even supplant the role of courts in addressing horizontal, rather than vertical or collectivist, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal interactions in core social settings, such as the workplace or the marketplace.
Normatively, we argue that the seeming consensus among theorists of both private law and regulation, in which these tasks belong to judges, rather than administrators, is misguided. In many contexts – increasingly prevalent in contemporary society – agencies, rather than (or in addition to) courts, may well be the (or at least an additional) appropriate institution for the articulation, development, and vindication of our interpersonal rights.
Finally, jurisprudentially, we offer some initial steps towards a theory of private law bureaucracies. We demonstrate the regulatory implications – in both substance and form – of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction and advance a preliminary account of the regulatory toolkit appropriate to this horizontal task.
Friday, September 8, 2017
Aaron Twerski and Jon Shane have posted to SSRN Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls. The abstract provides:
Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard for reasonable policing. Most courts place heavy emphasis on the foreseeability by the mall management of the likelihood of criminal activity to take place on the grounds of the mall. In doing so they rely on the testimony of security experts who intuit as to the adequacy of the staffing. This article challenges the case law on several grounds. First, experts fail to utilize objective data as to the workload of security officers on the mall. The article will demonstrate that such data is available and provides an objective measure as to adequate staffing. Second, foreseeability of crime is too uncertain a measure as to the adequacy of staffing. The question of how much foreseeability is sufficient to trigger a duty of security has bedeviled the courts. Third, courts have struggled to determine whether better security would have avoided harm to a particular crime victim. Thus, even if security is found to be inadequate it is often impossible for plaintiffs to prove causation. This article argues that once a court, based on objective data, sets the standard of reasonable care that the burden of proof that additional security would not have averted the crime to the victim should shift to the defendant management of the mall.
Thursday, September 7, 2017
The heart balm torts are back in the news. Almost all states recognized some or all of the 4 heart balm torts (alienation of affections, criminal conversation, seduction, breach of promise to marry) at one time. Now, however, only about 7 or 8 states recognize any of them. Alienation of affections and criminal conversation are the most common. These are suits against an interloper to a marriage based on the interloper alienating the affections of one spouse (alienation) or having sex with the spouse (criminal conversation). The North Carolina bar seems the most committed to them. Approximately 230 cases were filed last year in that jurisdiction.
Recently, a trial judge in Forsyth County (think Winston-Salem) ruled the heart balm torts were unconstitutional. The judge ruled that state law violates a person's constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults. The Court of Appeals in North Carolina overruled the judge. Eugene Volokh analyzes the opinion, which he pronounces "generally sound", here. That makes sense to me. I still hold, however, the same position I held a decade ago, that the torts don't make sense as a matter of tort theory.
Wednesday, September 6, 2017
David Berke, who appears to be a Yale Law student, has posted to SSRN Products Liability in the Sharing Economy. The abstract provides:
This Note undertakes an in-depth review of an important legal problem that has not yet been addressed—the role of products liability in the sharing economy. To date, two foundational questions have not been posed in the sharing economy literature, much less answered. First, what descriptive role, if any, does products liability have in the sharing economy? Second, what role should products liability have in the sharing economy and its regulation, as a normative matter? In Part I, this Note examines a hypothetical sharing economy products liability claim point-by-point and finds that, descriptively, such a claim is conceivably possible but extremely difficult. In Part II, this Note argues against this current state of the law and advocates a more robust role for products liability in the sharing economy.
Tuesday, September 5, 2017
Foreword: Tort Law as Regulatory Tool
Torts and Guns
Sugarman, Stephen D.
Any Weapon to Hand? An Essay on Gun Regulation and the Limits of Insurance
Scales, Adam F.
Products Liability As Enterprise Liability
Keating, Gregory C.
The Prosser Letters: Scholar as Dean
Robinette, Christopher J. / Graham, Kyle
Friday, September 1, 2017
Peter Cane has authored "Key Ideas in Tort Law" from Hart Publishing. The blurb provides:
This book offers nine key ideas about tort law that will help the reader to understand its various social functions and evaluate its effectiveness in performing those functions. The book focuses, in particular, on how tort law can guide people's behaviour, and the political and social environments within which it operates. It also provides the reader with a wealth of detail about the ideas and values that underlie tort 'doctrine'-tort law's rules and principles, and the way those rules and principles operate in practice. The book is an accessible introduction to tort law that will provide students, scholars and practitioners alike with a fresh and engaging view of the subject.
The table of contents:
1. Nine Key Ideas
2. Tort Law
4. Torts Unpacked
5. Torts Repackaged
7. Out and About with Tort Law
10. The Political Economy of Compensation Schemes
11. The Future of Tort Law
Thursday, August 31, 2017
Two large med mal death verdicts were just handed down in Detroit and Minneapolis.
In Detroit, a jury awarded $40M for the death of a 26-year-old college student. The decedent presented in the ER with signs of a pulmonary embolism and was sent home without the benefit of any tests, diagnosed with a virus. She died the next day. Michigan has a somewhat variable noneconomic damages cap, but the Detroit Medical Center has not yet asked for it to be applied. The Detroit News has the story.
Meanwhile in Minneapolis, a jury has awarded $20M against a hospital for the death of a 30-year-old woman who had just given birth. The family alleged an ER nurse ignored lab results showing the decedent had sepsis and sent her home. The decedent returned to the hospital 12 hours later and died. Minnesota does not have a cap. US News has the story.
Wednesday, August 30, 2017
James Goudkamp & Eleni Katsampouka have posted to SSRN Punitive Damages: Perception and Reality. The abstract provides:
Compensatory damages are awarded to compensate the claimant for loss suffered. By contrast, punitive damages are awarded in order to punish the defendant for his or her contumelious disregard of the claimant’s rights and to deter the defendant and others like him or her from acting similarly in the future. This article summarises the results of an investigation into punitive damages (see ‘An Empirical Study of Punitive Damages’, James Goudkamp and Eleni Katsampouka (2018) Oxford Journal of Legal Studies (forthcoming)). The study, which is the first of its kind in the UK, uncovers important evidence regarding punitive damages. This evidence comports with certain widely held views regarding punitive damages and casts doubt on others.
Tuesday, August 29, 2017
Tony Sebok has posted to SSRN Unmatured Attorneys' Fees and Capital Formation in Legal Markets. The abstract provides:
Attorneys in the United States are under increasing pressure to change and adopt practices commonly found in the world of finance and business. Over the past thirty years the bar and legal academics have debated what to do; the focus of this debate has been over changes to MRPC 5.4 to allow partnerships between attorneys and non-lawyers or partnerships owned by non-lawyer shareholders.
One of the reasons attorneys are debating changes in Rule 5.4 is that the practice of law depends on capital, and the old methods for raising capital are no longer sufficient. Rather than raise capital from non-lawyers by partnering with them or selling equity to them, I recommend that attorneys look to their own fees as a source of capital.
I argue that there is confusion among state bar ethics committees and some ethics commentators about whether the sale of future, or unmatured, fees is unethical. The argument that lawyers may not sell unmatured fees is based on the claim that it would be fee-splitting. I argue that those who think that the sale of unmatured fees is fee-splitting are relying on a theory of Rule 5.4 called the Direct Relation Test, which takes as its premise that it is unethical for an attorney to allow a non-lawyer to invest in her productive capacities with the aim of earning a profit. I argue that the Direct Relation Test is incoherent, and cannot be consistently maintained in a system, like ours, that allows attorneys to factor their earned fees. I also argue that the Direct Relation Test is a deontological principle that lacks normative appeal.
I conclude that ethics committees, courts, and legal ethicists should reject the Direct Relation Test and recognize that the sale of unmatured fees is not fee-splitting.
Monday, August 28, 2017
Victor Goldberg has posted to SSRN The MacPherson-Henningsen Puzzle. The abstract provides:
In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?
Thursday, August 24, 2017
Allen Linden has passed away at the age of 83. A former Justice of Canada's Federal Court of Appeal, he was named Officer of the Order of Canada in 2015. Moreover, he was a distinguished torts professor who continued to teach the subject during his judicial duties. Linden studied with William Prosser at Berkeley, and became one of Canada's most-respected torts professors, teaching primarily at Osgoode Hall Law School. In the 1960s, he authored a study on compensation for automobile accidents which led to the adoption of a no-fault plan in Ontario in 1969. I never had the honor of meeting him, but I have heard numerous friends speak of him in glowing terms. Rest in peace. An obituary is here.
Wednesday, August 23, 2017
Geisinger is settling a med mal case, in which one of its patients died, for $4.5 million. The proceeds will be paid to the patient's wife of 48 years. Details of the alleged negligence are not available, and no one is commenting about the case:
Court documents say the parties entered into settlement negotiations that lasted several months, ultimately agreeing to the multi-million dollar sum in recent weeks. The settlement, court documents say, will be paid out in two installments: an initial $3.5 million due within 20 days and another $1 million payable by Dec. 31.
[The patient’s] family will receive approximately 2.5 million while [attorneys] will receive approximately 1.8 million. Remaining funds will go toward liens and other miscellaneous fees.
The Wilkes Barre Times-Leader has the story.
Monday, August 21, 2017
Matthew Dyson has posted to SSRN What Does Risk-Reasoning Do in Tort Law?. The abstract provides:
This chapter is a draft of the conclusion to an edited collection on how private law (particularly tort law) conceives of risk, generates liability from risk and seeks to use liability to control risk. It is made up for 18 substantive chapters, two each from England, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil. The volume will be published later in 2017 by Intersentia. This chapter sets out the main findings from the volume, analyses them comparatively, and shows what risk-reasoning does within tort law.
Wednesday, August 16, 2017
Cathy Sharkey has posted to SSRN Can Data Breach Claims Survive the Economic Loss Rule?. The abstract provides:
Data security breach cases are fertile ground to explore the impact of the economic loss rule and to challenge the conceptual underpinnings of this judge-made doctrine. The extent to which the economic loss rule serves as a formidable barrier to credit card data security breach cases depends upon the underlying state law; in particular, whether a state adopts the majority or minority position on the rule, as well as how it defines various exceptions thereto. Upon closer examination, it becomes clear that the rule operates in a fundamentally distinct manner in the “stranger paradigm” as compared to the “contracting parties paradigm.” What makes the credit card data security breach cases so vexing is that they often straddle the stranger/contracting parties paradigms. The credit card data breach cases can be reframed in a coherent way that defers to contractual allocation of risk and responsibility but nonetheless allows tort liability to be deployed when needed to ensure the internalization of third-party costs. Seen from a broader regulatory perspective — especially taking into account state statutory provisions relating to enforcement of private industry standards in the credit card arena — the economic loss rule functions as a boundary-policing doctrine between tort and regulation as alternative mechanisms to regulate private parties. Moreover, as a more robust third-party liability insurance market emerges in response to a greater threat of tort liability, insurers will engage in further risk management, exerting more potent regulatory control.
Tuesday, August 15, 2017
The report is here: Download DC-_641863-v1-LCJ_Request_for_Rulemaking_Concerning_MDL_cases_2017
According to Rule 1, the FRCP ‘govern the procedure in all civil actions and proceedings in the United States district courts.’ It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 45 percent of the federal docket. The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising. A solution is needed, and LCJ is urging the Civil Rules Advisory Committee to undertake an effort to remedy this situation by bringing MDL cases back within the existing and well-proven structure of the FRCP. While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability. Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP.
Monday, August 14, 2017
The AALS Section on Torts and Compensation Systems is pleased to announce that the recipient of the 2018 William L. Prosser Award is Marshall S. Shapo, the Frederic P. Vose Professor of Law at the Northwestern Pritzker School of Law.
The Prosser Award recognizes outstanding contributions in scholarship, teaching and service related to tort law. Nominations are made by fellow tort scholars, and the recipient is selected by the two most-recent Prosser Award winners and the immediate past Chair of the AALS Torts Section, with approval of the Torts Section Executive Committee. Professor Shapo's award, and his many contributions to tort law, will be recognized at the Torts Section meeting at the AALS Annual Meeting in San Diego, at 1:30 pm on Friday, January 5th, 2018.
Wednesday, August 9, 2017
Southwestern Law School is hosting a symposium on January 26, 2018 entitled "Fake News and Weaponized Defamation Global Perspectives". Abstract are due on September 25, 2017 and final papers are due January 5, 2018. Information is available here: Download Call for Papers - email (3)
Monday, August 7, 2017
Bob Rabin has posted to SSRN Perspectives on Privacy, Data Security and Tort Law. The abstract provides:
The continuing problems of data breaches, data misuse, and the consequent failure of current laws to adequately deal with these problems is widely acknowledged. In this article, I provide an overview of the regulatory enforcement and information disclosure strategies for addressing the problem before turning to the main theme of the paper: An assessment of the pathways available through tort remedies.
Friday, August 4, 2017
James Henderson has posted to SSRN The Impropriety of Punitive Damages in Mass Torts. The abstract provides:
Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.
Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.