Monday, September 28, 2015
Cristina Carmody Tilley (Loyola Chicago) has posted to SSRN Tort, Speech, and the Dubious Alchemy of State Action. The abstract provides:
Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to include the entire body of private law that had produced the verdict. This approach aggrandized the Court’s authority to replace state generated common-law tort rules with its own quasi-statutory scheme that tied tort liability to the identity of the plaintiff. The less public the plaintiff, the less important the speech about him was presumed to be, and the greater the tort recourse for injuries that the speech caused. This Article suggests the Sullivan scheme is failing. As the boundaries of the “public” plaintiff category have expanded, tort liability for genuine speech injuries has grown elusive and private law is increasingly understood to signal that speakers have no duty of care towards those they discuss. Further, the Court’s desire to create more robust civic speech has been thwarted as the media has used its constitutional latitude to fixate on celebrity coverage at the expense of hard news. The Article concludes that a more modest state action approach in Sullivan could have prohibited the judicial enforcement of verdicts that imposed local community speech norms onto the nation without destabilizing centuries of dignitary tort law to dubious effect.
Sunday, September 27, 2015
Friday, September 25, 2015
Ben Zipursky has posted to SSRN Reasonableness In and Out of Negligence Law. The abstract provides:
The word “reasonable” and its cognates figure prominently in innumerable areas of the law – from antitrust and contract law to administrative and constitutional law, from the common law of nuisance to an assortment of rules in statutes and regulations. While some thinkers have equated “reasonableness” with “rationality,” others have looked to “justifiability,” and others still have decided that “reasonableness” means virtually nothing at all, but serves the important function of allocating decisionmaking authority. The reality is that the term “reasonable” is both vague and ambiguous, and thus plays many different roles in the law. As with terms such as “rights” and “responsibility,” we will benefit from an analysis of “reasonable” that admits that different meanings take center stage in different legal contexts. This broad, ‘varietal’ analysis of reasonableness in the law comprises the first half of the article.
Turning to negligence law, the second half of the article offers a broad critique of the Hand formula conception of reasonableness. The article criticizes both the Posnerian/economic interpretation of the Hand formula and the more basic idea (in the Restatement (First)) that the “unreasonableness” of risk is the core of negligence law. The breach element of negligence law is focused first and foremost not on a level of risk but on a kind of person – a reasonably prudent person or a reasonable person. By attending closely to the role of reasonableness concepts in various aspects of negligence doctrine, and comparing them to reasonableness concepts in other parts of the law, the article constructs and defends a “moderation and mutuality” conception of reasonableness in negligence law.
Thursday, September 24, 2015
A Conference on ‘The Aims of Tort Law’, which will take place on 16th and 17th October 2015 in the Old City Hall, Wipplingerstrasse 6-8, 1010 Vienna, is jointly organised by the Sino-European Private Law Forum, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL). At the start of the Conference, Helmut KOZIOL (Vienna/Graz) will present an introduction into issues the project is dealing with. This will be followed by five topics which will each be analysed by a Chinese and a European presenter. The speakers will be CAO Xianfeng (Jilin), CUI Jianyuan (Beijing), GUO Mingrui (Yantai), WANG Cheng (Peking) and ZHANG Pinghua (Yantai) as well as Michael FAURE (Maastricht/Rotterdam), Monika HINTEREGGER (Graz), Ernst KARNER (Wien), Ken OLIPHANT (Bristol) und Alessandro SCARSO (Milan). The Conference will provide ample opportunity for discussion and debate.
Registration is possible until Tuesday, 1. October 2015 with Lisa Zeiler (email@example.com). Please note that participation in the conference is free of charge. The brochure is here: Download Aims of Tort Law Vienna 16-17 October 2015 fin
Wednesday, September 23, 2015
Ronen Perry has posted to SSRN Getting Incentives Righter. The abstract provides:
This book review critically evaluates Robert Cooter & Ariel Porat's "Getting Incentives Right" (Princeton University Press, 2014). The review makes four general arguments, each addresses the book from a different angle.
First, the book provides universally applicable theoretical insights, but limits the critical evaluation of existing law, and the consequent reform proposals, to the United States. It thereby gives up accuracy, vigor, and audience. While this observation applies to the entire book, I provide several examples for the possible benefits of a comparative legal perspective.
Second, C&P seem to miss problematic incentives that implementing their proposals might entail. Specifically, some of the most innovative proposals for reform involve upward or downward adjustments of the scope of damages for the purpose of securing injurers' (and sometimes also victims') efficient conduct. I show that in adjusting damages to properly incentivize injurers, these reforms may also create adverse incentives that the book overlooks.
Third, the book is committed to classical economic analysis of law, and is therefore insensitive to empirical findings concerning human behavior. Behavioral studies give rise to serious doubts about the assumptions of classical economic analysis, and therefore pose challenges to most of its conclusions. I explain the general weaknesses of the book's methodology, and then demonstrate how some of its more concrete arguments could benefit from integrating existing behavioral research. In addition, I advocate empirical testing of C&P's theoretical arguments. Because the book aims to encourage desirable human behavior, the actual — empirically observed — impact of proposed legal reforms on human behavior is much more important than the theoretical prediction. Empirical testing obviously goes beyond the book's proclaimed goals, but without it all assumptions, conclusions, and recommendations remain inherently suspect.
Fourth, in many contexts C&P propose legal reforms which aim to provide more efficient deterrence, but complicate the law to such an extent that the additional administrative costs may exceed the benefit of the modification. If promoting social welfare is the ultimate goal of private law, the tradeoff between more efficient deterrence and greater administrative costs is highly important. Yet the book generally overlooks or understates these costs. I provide several examples for inefficiencies that might ensue.
Tuesday, September 22, 2015
In Florida last week, a jury hit RJ Reynolds with $14.7M in compensatory damages and $20M in punies for the death of an Air Force sergeant in another of the Engle progeny cases. The jury deliberated only a few hours. ABA Journal has the story.
Monday, September 21, 2015
Thursday, September 17, 2015
The AALS Torts & Compensation Systems Section has announced that Aaron Twerski (Brooklyn) will receive the 2016 Prosser Award. From the announcement:
In Ontario, both major political parties, Provincial New Democrats and Conservatives, are calling for increased accountability from the Canadian Medical Protective Association (CMPA). The CMPA acts as an insurer for doctors accused of medical malpractice. Significantly, the CMPA receives massive public subsidies; approximately 81% of physician fees to CMPA are reimbursed out of tax funds. The Toronto Star has the story.
Tuesday, September 15, 2015
Monday, September 14, 2015
Don Gifford and Brian Jones have posted to SSRN Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law. The abstract provides:
This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.
To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state.
These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them. Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings. In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.
We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.
I read an early draft of this piece and it is sure to attract attention.
Friday, September 11, 2015
David Logan has posted to SSRN Judges, Juries, and the Politics of Tort Reform. The abstract provides:
The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.
This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”
Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.
The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.
Wednesday, September 9, 2015
Tuesday, September 8, 2015
In Chavez v. 24 Hour Fitness, the Court of Appeal, Sixth Appellate District reversed the trial court's dismissal of plaintiff's case against her gym. Plaintiff was injured while working out; she sued 24 Hour Fitness for, among other counts, gross negligence. Relying on plaintiff's signed waiver, the trial court dismissed her claims.
The Court of Appeal found that plaintiffs had raised a triable issue of material fact as to whether 24 Hour’s conduct constituted gross negligence. The evidence showed regular maintenance was not performed and, on that basis, 24 Hour “failed to exercise scant care or demonstrated passivity and indifference toward results.” In addition, plaintiffs raised other triable issues of fact including the missing brackets and the owner’s manual’s requirement of weekly maintenance.
JD Supra has the story.
Thursday, September 3, 2015
Howie Erichson has posted to SSRN Judge Jack Weinstein and the Allure of Antiproceduralism. The abstract provides:
In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor of substantive justice, but technicalities are in the eye of the beholder, and this Article asks what is lost when a judge steers around procedural constraints.
Wednesday, September 2, 2015
As part of the Clifford Symposium, John Goldberg has written a piece on Judge Weinstein, for whom he clerked. Entitled Judging Responsibility, Responsible Judging, the abstract provides:
This essay, published in the Twentieth Annual Clifford Symposium, sketches two ways in which Judge Jack Weinstein’s judicial performance raises issues of responsibility. First, it considers how he has deployed responsibility concepts that are central to tort law. Unsurprisingly, it concludes that, in his efforts to do “equity” through mass tort litigation, he has stretched these concepts quite far. This conclusion raises a second set of questions about responsibility—namely, questions about the role responsibilities of federal district court judges. As to these, the essay contends that Judge Weinstein’s tort decisions are consistent with a familiar and plausible account of judicial decision-making. It also notes ways in which he has been especially responsible in his handling of claims and claimants.
Tuesday, September 1, 2015
The AALS Section on Insurance Law will hold a program on Insurance and Litigation during the AALS 2016 Annual Meeting in New York. The program is scheduled for Sunday, January 9, 2016, from 10:30 AM to 12:15 PM. The program will feature a panel of leading research on the relationships between insurance and litigation. For a longer description of the topic, see below
Submissions: To be considered, a draft paper or proposal must be submitted by email to Ezra Friedman, Program Chair, at firstname.lastname@example.org. A proposal must be comprehensive enough to allow for a meaningful evaluation of the proposed paper. Submissions must be in Micorsoft Word or PDF format.
Deadline: The deadline for submissions is Friday, October 9. Decisions will be communicated by Friday, October 23.
Eligibility: Full-time faculty members of AALS member law schools are eligible to submit. Faculty at fee-paid law schools; foreign, visiting and adjunct faculty members; graduate students; fellows; and non-law school faculty are not eligible to submit. Papers may already be accepted for publication, provided that the paper will not be published before the AALS meeting.
Expenses: The panelist selected through this Call for Papers will be responsible for paying his or her own annual meeting registration fee and travel expenses.
Inquiries: Inquiries about this Call for Papers may be submitted to Ezra Friedman, Northwestern University, School of Law, email@example.com, (312) 503-0230.
“Insurance and Litigation, Risk and Incentives”
Appreciating the role that insurers and insurance plays in litigation is fundamental to understanding both insurance markets and the legal system. Insurers participate in litigation directly as parties to conflicts or as agents of their policyholders, and indirectly by affecting the financial stakes of the parties. Third party litigation finance firms act as de facto insurers of litigation outcomes. This session will address various subjects regarding the relationship between insurance, risk, and litigation. Possible questions include: How can law makers best address the conflicts of interest between insurers and policyholders in litigation? How does the prospect of litigation between the insurer and policyholder affect the drafting and performance of insurance contracts? What effects do the prospect of litigation have on the value and cost of providing Insurance? What can understanding insurance law and regulation tell us about how to regulate litigation finance?
Monday, August 31, 2015
Twelve U.S. House members are sponsoring the Innocent Sellers Fairness Act (H.R. 1199), designed to remove liability for product injuries from sellers and keep it on manufacturers.
The bill would make it so that no seller of any product would be liable for damages, except in the following cases:
- The seller was the manufacturer of the product;
- The seller participated in the design of the product;
- The seller participated in the installation of the product;
- The seller altered, modified or expressly warranted the product in a manner not authorized by the manufacturer;
- The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant;
- The seller had actual knowledge of the defect in the product at the time the seller supplied the product;
- The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer; and
- The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.
A version of the bill has been in the House since 2007, but the number of sponsors has risen recently. U.S.Glass News Network has details.
Friday, August 28, 2015
Over at New Private Law, there are two recent torts posts:
Thursday, August 27, 2015
Currently, re-creating what went wrong in an operating room involves a mixture of memories and whatever notes were taken at the time or shortly afterward, a vague combination that vexes families trying to get to the truth about a failed procedure or a fatal complication. Recording surgeries “offers transparency, truth and accuracy,” Ayer said, “in collecting data for the medical record and testimony. It offers data and insight for medical boards and even prosecutors. It offers oversight and policing.”
The medical industry is treading cautiously. The American Hospital Association, the American Medical Association and the American College of Surgeons all declined to comment for this article. In 2005, the AMA adopted a policy on filming patients in health-care settings — it encouraged the practice for educational purposes — but focused on patient privacy and on filming only those who give their consent.