Thursday, July 16, 2015
Keith Hylton has posted to SSRN Information and Causation in Tort Law: Generalizing the Learned Hand Test for Causation Cases. The abstract provides:
This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of tort law.
Wednesday, July 15, 2015
How does looking at tort law from a psychology lens differ from looking at it through an economic lens?
“We look at human beings as they actually are, not as hypothetical economic humans,” Hans told Corporate Crime Reporter in an interview last week. “We are human. We have foibles. We take short cuts in our decision making. We rely on heuristics. We pay more attention to the here and now as opposed to what might happen in the future. We commingle things that should be separate. We are decent decision makers but we are fallible decision makers. Psychology brings to tort law the ways in which actual real world decision making affects the operation of tort law.”
Tuesday, July 14, 2015
At JD Supra, Chris Jones of Sands Anderson in Virginia discusses some of the considerations, which include the expansion of products liability into automobile accident cases and the potential need for a post-sale duty to warn in jurisdictions that have not adopted it.
Monday, July 13, 2015
Friday, July 10, 2015
Herb Kritzer & Neil Vidmar have posted to SSRN When the Lawyer Screws Up: A Portrait of Legal Malpractice Claims and Their Resolution. The abstract provides:
All professionals make mistakes and sometimes those mistakes harm the clients or patients. What happens when this occurs and the professional involved is a lawyer? Surprisingly, there is virtually no empirical research on legal malpractice. In contrast, there is an extensive empirical literature on medical malpractice and the legal handling of legal malpractice claims. This literature examines the frequency of medical malpractice claims, how they are handled, how they are resolved, and their impact on access to and cost of medical care. The absence of a similar literature concerning legal malpractice is at least somewhat surprising given that there are roughly equal numbers of private practice lawyers and patient care physicians in the United States.
In this paper we provide an empirical portrait of legal malpractice claims and their resolution. We draw on a wide range of data sources including reports published by the American Bar Association, reports from individual insurers, and data sets obtained from insurance regulators in Florida and Missouri. We examine a wide range of questions including the areas of practice producing large numbers of claims, the types of errors alleged in the claims, the practice settings and experience of the lawyers subject to the claims, the likelihood that claims are successful and the amounts paid in damages in successful claims and how the outcomes vary depending on factors such as the area of practice and the size of firm, and the frequency and outcomes of trials of legal malpractice cases including some comparisons to trials involving other types of professional malpractice.
A central finding of our analysis is that there are essentially two hemispheres of legal malpractice paralleling the two hemispheres of the bar identified by Heinz and Laumann in their study of the Chicago bar. In the personal services sector one finds mostly relatively small stakes cases often involving plaintiffs’ personal injury, real estate, family law, and collections and bankruptcy; much of the insurance coverage is provided by mutual insurers started by and/or affiliated with state bars. In the corporate sector stakes tend to be very large, and cases involve corporate matters, corporate litigation, and high stakes areas such as intellectual property and securities; insurance is provided by either by specialized insurers or through brokers who put assemble a group of insurers to cover a large law firm.
This is a related piece to work the pair released earlier this year.
Thursday, July 9, 2015
Relying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's med mal cap on noneconomic damages violates the equal protection clause of the Florida Constitution. Courthouse News Service has the story.
Wednesday, July 8, 2015
Tuesday, July 7, 2015
Monday, July 6, 2015
I have spent the last several weeks teaching in Venice; I'm home now and blogging should be much more consistent again.
I taught a class entitled "Tort Law in Global Perspective," using Julie Davies and Paul Hayden's Global Issues in Tort Law. I liked the book and I believe my students did as well. It is relatively cheap and not physically heavy. It provides a good overview of doctrinal differences among countries in many major areas of tort law. It covers the Alien Tort Statute, Torture Victim Protection Act, Anti-Terrorism Act, Foreign Sovereign Immunities Act, and Warsaw Convention. It was a great experience for me because I have a better understanding of comparative tort law. And, of course, I got to spend several weeks in Venice.
Tuesday, June 30, 2015
Nora Freeman Engstrom has posted to SSRN A Dose of Reality for Specialized Courts: Lessons from the VICP. The abstact provides:
The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?
The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.
Monday, June 29, 2015
Leslie Kendrick has posted to SSRN Nonsense on Sidewalks: Content Discrimination in McCullen v. Coakley. The abstract provides:
What does it mean to say that the government may not “restrict expression because of its message, its ideas, its subject matter, or its content?” Whatever it means, how would one determine when it has occurred? First Amendment law has wrestled with these questions for more than forty years, and if McCullen v. Coakley is a reliable indicator, the debates have only become more fractious. At several points, the Justices viewed a single phenomenon in strikingly different terms. These conflicts demonstrate both the potential benefits of clear rules in the content discrimination context and their lurking futility.
Thursday, June 25, 2015
Political subdivisions involved in the clean up of a corn mash spill onto a highway were denied sovereign immunity in a recent Nebraska case because they were on notice of the incident, had a reasonable amount of time to correct the problem, but failed to do so. Iowa State's CALT has details.
Tuesday, June 9, 2015
Monday, June 8, 2015
Friday, June 5, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
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 firstname.lastname@example.org. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award This is the first call for nominations for the 2016 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 Mike Green, 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. Living tort scholars and those who have passed away within the last five years are eligible for the award. 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 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Please feel free to contact me if you have any questions.
Thursday, June 4, 2015
Ted White has posted to SSRN The Emergence and Development of a Law of Torts. The abstract provides:
This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.
Wednesday, June 3, 2015
Alberto Bernabe has published Setting Parental Controls: Do Parents Have a Duty to Supervise Their Children's Use of the Internet?. He answers "no" in a comment on last year's Georgia appellate decision in Boston v. Athearn (prior coverage here).
Tuesday, June 2, 2015
Heidi Hurd has posted to SSRN The Innocence of Negligence. The abstract provides:
This article defends the claim that negligence is not blameworthy, and that the system of accident law that dominates Anglo-American law is thus not, in fact, fault-based. Recognizing that this claim contradicts hundreds of years of case law and jurisprudential rhetoric, the article systematically examines five alternative bases upon which it might be tempting to predicate claims of fault in cases in which persons have inadvertently caused harm. On these accounts, we are entitled to blame, and therefore to transfer the costs of accidental injuries, to negligent actors because: (1) they deliberately chose to violate per se precautionary rules that exist to safeguard others from inadvertent injury, and in so doing they culpably engaged in objectively faulty conduct, even if they did not subjectively appreciate its risks; or, (2) they deliberately chose to do acts that they knew would make their later inadvertence to risks unjustifiably likely, and we can properly blame them for those prior culpable choices, even if we cannot blame them for the inadvertence that later attended their injurious actions; or (3) while they made no relevant choices with regard to the accidental injuries they caused, they possessed unexercised capacities, which if exercised, would have prompted them to choose a risk-free course of conduct; or, (4) they possessed defective motor skills, cognitive capacities, or volitional resources which were themselves morally blameworthy or which, if not themselves blameworthy, were causally significant to the accidental injury in ways that could have been prevented; or (5) they possessed defects of character which were themselves blameworthy, and which caused their failure to advert to the risks of their behavior, thus making such inadvertence blameworthy.
As I shall argue, none of these arguments succeed in grounding the claim that negligence is morally blameworthy. None thus provide a basis for thinking that negligence liability is fault-based. Absent any further account of how inadvertent injuries are culpably caused, tort law and tort theorists should confess that negligence liability is just another species of strict liability. Corrective justice theorists who are anxious to preserve the claim that tort law should be in the business of redressing culpable wrongs should thus either urge the doctrinal adoption of genuine culpability conditions or get on with the task of vindicating the morality of redistributing losses to those who have voluntarily caused them, however innocently.
Monday, June 1, 2015
The largest premises verdict in Texas in the last decade, for the deaths of two teenagers, was handed down against McDonald's last month. One of the victims was beaten in a McDonald's parking lot in College Station, Texas, and the other was killed in an auto accident while a friend attempted to get her and the first victim to the hospital. The theory of the case was lax security; the argument was based, in part, on the fact police had been called to the restaurant at least 20 times in the last year and McDonald's never hired security or installed cameras. PR Newswire has details.
Friday, May 29, 2015