Friday, May 16, 2014

Fox & Stein on the Physical/Emotional Harm Distinction

Dov Fox (San Diego) & Alex Stein (Cardozo) have posted to SSRN Dualism and Doctrine.  The abstract provides:

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.

This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.


May 16, 2014 in Scholarship, Science | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

JOTWELL: Hershovitz on Radzik on Tort and Relational Repair

At JOTWELL Torts, Scott Hershovitz (Michigan) reviews the contribution of Linda Radzik (Texas A&M-Philosophy) to Philosophical Foundations of the Law of Torts (John Oberdiek ed., 2014).


May 15, 2014 in Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

Krueger & Slesnick on Worklife Expectancy

Kurt Krueger & Frank Slesnick has co-authored Total Worklife Expectancy Download Total_Worklife_Expectancy_Krueger_Slesnick_April_2014.  The abstract provides:

This paper appends the standard Markov increment-decrement worklife

expectancy model used in forensic economics to measure the years that people

perform the non-market work of taking care of their homes or families. We find

that adding non-market working years to the worklife model nearly equalizes

men and women's estimated lifetime total working years. The paper begins

with the gender-related problems of solely using labor force worklife tables as a

tort compensation determinant. We then present demographic characteristics

of persons that perform full-time, non-market work. A Markov life table model

that incorporates two work activities (market and non-market work) is specified—

we name the sum of market and non-market working years “total worklife

expectancy.” Ending the paper are examples of using total worklife expectancy

as a tort compensation estimator.


May 14, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

The Europeanisation of English Tort Law by Giliker

Hart Publishing is offering a discount for TortsProf readers on The Europeanisation of English Tort Law by Paula Giliker.  The abstract provides:

Tort law is often regarded as the clearest example of traditional common law reasoning. Yet, in the past 40 years, the common law of England and Wales has been subject to European influences as a result of the introduction of the European Communities Act 1972 and, more recently, the implementation of the Human Rights Act 1998 in October 2000. EU Directives have led to changes to the law relating to product liability, health and safety in the workplace, and defamation, while Francovich liability introduces a new tort imposing State liability for breach of EU law. The 1998 Act has led to developments in privacy law and made the courts reconsider their approach to public authority liability and freedom of expression in defamation law.


This book explores how English tort law has changed as a result of Europeanisation - broadly defined as the influence of European Union and European human rights law. It also analyses how this influence has impacted on traditional common law reasoning. Has Europeanisation led to changes to the common law legal tradition or has the latter proved more resistant to change than might have been expected?


March 2014    262pp   Hbk   9781849463195  RSP: £45 / €58.50 / US$90

20% DISCOUNT PRICE: £36 / €46.80 / US$72


Order Online US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

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Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

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May 13, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 12, 2014

Foreseeability & Duty in New Mexico

Deborah J. LaFetra blogs over at Pacific Legal Foundation about a new case by the New Mexico Supreme Court,  Rodriguez v. Del Sol Shopping Centerwhere the court held that "a foreseeability-driven duty analysis is inappropriate." 

Visit Deborah's post for a more on the case. 



May 12, 2014 in Current Affairs, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Two by Sebok on Litigation Financing

Tony Sebok (Cardozo) has posted two pieces to SSRN on litigation financing.  First up is Litigation Investment and Legal Ethics:  What Are the Real Issues?.  The abstract provides:

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer’s exercise of independent professional judgment on behalf of the client. The strongest objections to litigation investment by third parties is that it may compromise a lawyer’s independence. This article examines this objection in the context of a recent report from the Ethics Committee of the Commercial and Federal Litigation Section of the New York State Bar Association and argues that it misses the real legal ethics risks posed by litigation investment, which include the risk of self-dealing. The article compares the risk of self-dealing in commercial and consumer litigation investment in the United States with the risk of self-dealing in class action litigation investment in Ontario. It concludes by noting that courts in Ontario have properly identified the self-dealing risk in litigation funding for class actions and suggests that American courts and others concerned with the ethical risks for lawyers created by litigation investment can learn from the Canadian experience.

Next is What Do We Talk About When We Talk About Control?.  The abstract provides:

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains.  This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

The intertwined questions of control and investment have two dimensions.  The first is whether and to what extent non-lawyers may invest in a stranger’s lawsuit; this is know as litigation investment and is limited by statute or the common law doctrine of champerty.  The second is whether and to what extent non-lawyers may invest in a lawyer’s anticipated legal fees; is the known as fee-splitting and is limited by the rules of professional responsibility.  This paper focuses on the second question, but it will be illuminated by work I have done on the first question.

I approach the question of investment and control of lawyers by asking two subsidiary questions.  First, what do we mean by “loss” of control when we say that investment in a lawyer’s anticipated fees risks allowing the investor to control the lawyer’s legal advice and judgment?  Are there any investment structures under which the risk of control could be eliminated or minimized?  Second, what do we mean by the “control” which is the subject of the forbidden transfer from the lawyer to the investor?  Lawyers, after all do not actually control the litigation they conduct. Clients ultimately have control; lawyers are agents of the client. Therefore, the autonomy which opponents of fee-splitting wish to protect possesses a paradoxical quality.  On the one hand, it can’t be ‘full’ control, equal to that of the client, since that would violate the fundamental agent/principal relationship that exists between lawyer and client.  On the other hand, it must reflect aspects of discretion and judgment which are lacking in the investor qua non-lawyer.  The paper concludes by asking whether clients are helped or hurt by insisting, as we do now, of one-size-fits-all answers to these questions regardless of the sophistication of the client and the nature of the legal representation at issue.


May 8, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 7, 2014

MS: Ten Years of Tort Reform

The Clarion-Ledger reviews the 2004 tort reform package passed in Mississippi:

Caps on damages: The law limited noneconomic, or pain-and-suffering damages to $500,000 on medical liability cases and $1 million in other civil cases. It also reduced caps on punitive damages for defendants, based on their net worth.

Joint and several liability: The law did away with joint and several liability, limiting damages defendants could face to the fraction for which they were at fault.

Venue: Created stricter rules for establishing venue, or where a case can be brought and tried. For instance, doctors can only be sued in their home county.

Product and premise liability: Added protection to “innocent sellers” of products and protects property owners from liability.


May 7, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 6, 2014

NLJ on GM's Use of Ken Feinberg here; Sheila is quoted.


May 6, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, May 5, 2014

Chamallas on Vicarious Liability in Sex Cases

Martha Chamallas (Ohio State) has posted to SSRN Vicarious Liability in Torts:  The Sex Exception.  The abstract provides:

The vicarious liability of employers for the torts of their employees is one of the most firmly established principles in the common law world. Yet in cases of sexual abuse or exploitation, U.S. courts have created an exception to the rule, applying the familiar “course and scope of employment” requirement far more restrictively. Despite growing awareness that sexual abuse constitutes a predictable risk in many workplaces, the sex exception has stubbornly persisted, even in jurisdictions that embrace new, more “liberal” approaches to vicarious liability centered on “enterprise risk.”  This article, based on the 2013 Valparaiso University Monsanto Lecture on Tort Law and Jurisprudence, examines the confusing body of U.S. cases, finding a double standard in the way courts approach sex abuse cases as compared to cases of intentional non-sexual violence. Drawing upon feminist theory, cognitive psychology and interdisciplinary scholarship on institutional culture, the article critiques the U.S. version of sexual exceptionalism and proposes a new rule that would cover the most common cases of sexual abuse.


May 5, 2014 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, May 2, 2014

VA: $8M in Case of Woman Who Froze to Death

A Virginia jury in Montross has ordered a restaurant owner to pay $8M to the daughters of the man's wife, who froze to death on their property in 2010.  The woman's body was found partially covered with snow about 80 yards from the couple's house.  The jury foreman reported that jurors believed the woman's death could have been prevented if defendant/husband had done more to find her; defendant did not report her disappearance for 48 hours.  Virginia Lawyers' Weekly has the story.


May 2, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 30, 2014

AALS Torts Section: Call for Newsletter Information & Prosser Award Nominations

 From AALS Torts & Compensation Systems Secretary Leslie Kendrick:

1. Torts and Compensation Section Newsletter

As most of you know, our section publishes a newsletter each fall listing (1) symposia related to tort law, (2) recent law review articles on tort law, (3) selected articles from Commonwealth countries on tort law, and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at The deadline for inclusion is September 1, 2014. 

2.  2015 William L. Prosser Award

This is the first call for nominations for the 2015 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2015.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 8, 2014. Email submissions to are preferred. If you would rather mail hard copies of nomination materials, please use the address in the signature line below. 

Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach. In the meantime, feel free to contact me if you have any questions.

Thank you—


Leslie Kendrick
Professor of Law
University of Virginia School of Law
580 Massie Rd.
Charlottesville, VA 22903

April 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2014

BP Oil Spill Symposium at Stanford

The Stanford Journal of Complex Litigation is hosting a symposium, "A Complicated Cleanup: The BP Oil Spill Litigation," on Thursday, May 8, 2014 and Friday, May 9, 2014, at Stanford Law School.  The keynote address speaker is Kenneth Feinberg, the Gulf Coast Claims Administrator.  Other symposium speakers will include Elizabeth Cabraser of Lieff Cabraser, Francis McGovern (Duke), Linda Mullenix (Texas), Maya Steinitz (Iowa), and Byron Stier (Southwestern).  Panel moderators will include Stanford Law Professors Nora Engstrom, Deborah Hensler, and Janet Alexander. 

(Via Mass Tort Lit Blog)


April 28, 2014 in Conferences | Permalink | Comments (1) | TrackBack (0)

Thursday, April 24, 2014

JTL: Special Issue Honoring Richard Nagareda

"The Public Life of Private Law:  A Volume in Honor of Richard Nagareda" is available here.


April 24, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Rustad & Koenig on the Death of Tort by Fine Print Contract article in the Corporate Crime Reporter on Mike Rustad and Tom Koenig's article reporting an empirical study of the content of typical "terms of use" of social network sites.  Rustad and Koenig also have a reform proposal.


April 23, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, April 18, 2014

AK: Apology Immunity Bill Passes

The Alaska legislature has passed an apology immunity bill.  As is typical with many of these bills, it distinguishes between admissions, which remain admissible, and expressions of sympathy, which would become inadmissible.  The bill cleared the House last week and was passed unanimously in the Senate on Wednesday.  The Fairbanks Daily News-Miner has a brief story.


April 18, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FL: Task Force That Recommended Med Mal Cap Endorses Constitutional Amendment

In 2002, then-Governor Jeb Bush appointed 5 members to a panel to advise about an alleged med mal crisis.  The panel recommended med mal caps on non-economic damages.  In 2003, the legislature passed a cap; the Florida Supreme Court invalidated that cap earlier this year.  In the wake of that decision, the 5 members of the panel are urging a constitutional amendment to put the cap on firm legal ground.  It is unlikely the legislature will take up such an amendment in this session.  The Miami Herald has details.


April 17, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 16, 2014

LA: Bill to Drop $50K Limit for Jury Trial Voted Down by House

Two weeks ago, I reported that a bill to remove the $50K minimum to request a jury trial had passed a key committee vote in the House.  Today the full House voted the bill down 51-49, with 5 members not voting.  Some members of the business committee blame high insurance rates on the high threshold, arguing that plaintiffs would claim, and businesses would pay, lower amounts if not aiming at a $50K minimum.  Opponents reply that no evidence regarding lower insurance rates has been produced and lowering the threshold would potentially strain judicial resources.


April 16, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thomas on Declining Jury Trials

Suja Thomas (Illinois) has posted to SSRN Blackstone's Curse:  The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States.  The abstract provides:

When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government.  It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today.  When America was founded, juries functioned differently — as an integral part of government in both England and the colonies.  This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury.  Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check.  So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased.  Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority.  Of course, the jury has arguably not fallen or has risen through other changes.  This topic will be introduced later in this chapter and developed in a future chapter.  As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.

Via Solum/LTB.


April 16, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Sir Owen Woodhouse

New Zealand's Sir Owen Woodhouse has died.  The 1967 commission report that bears his name led to the movement from tort to a compensation system in New Zealand.  That report is here.


April 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Turkewitz on $9B


See also Alberto Bernabe.


April 11, 2014 in Current Affairs, Weblogs | Permalink | Comments (0) | TrackBack (0)