Tuesday, November 7, 2017
Friday, November 3, 2017
Ellen Wertheimer & Mark Rahdert have posted to SSRN The Force Awakens: Tincher, Section 402A and the Third Restatement in Pennsylvania. The abstract provides:
In Tincher v. Omega Flex (2014), the Pennsylvania Supreme Court reached two important decisions regarding Pennsylvania product liability law. First, it overruled an earlier decision, Azzarello v. Black Brothers, Inc., which had mandated a bifurcated process for assessing product defects that required trial judges first to assess whether a product was potentially unreasonably dangerous before submitting the question of whether it was defective to the jury. Second, it rejected efforts by some Justices, federal courts and the defense bar to have the Court adopt the negligence-oriented principles of the American Law Institute’s Third Restatement of Torts: Product Liability. Instead, the Court reaffirmed Pennsylvania’s commitment to the strict product liability principles set in Restatement (Second) Section 402A. This article assesses the implications of the Tincher decision for the future development of product liability law in Pennsylvania and elsewhere. It explains the foundational principles of strict product liability that the decision affirms, discusses the Court’s establishment of a composite consumer expectation and risk-utility test for determining defects in product design, defends the Court’s commitment to modest and incremental common-law adjudication, and discusses the development of jury charges that are faithful to Tincher’s approach. The article also takes issue with attempts by the product liability defense bar to push post-Tincher adjudication toward a negligence-based framework that is inconsistent with the Court’s reaffirmation in Tincher of a doctrine of strict product liability.
This article will be published in Volume 27 of the Widener Law Journal. It is currently in draft form and should not be quoted without the permission of its authors.
Wednesday, November 1, 2017
Earlier this year, the Kentucky legislature passed a law requiring med mal cases to go through a panel of doctors prior to going to trial. A state judge ruled Monday the law was unconstitutional and issued an order banning the state from enforcing the law. The state has announced it will appeal the ruling.
WKMS has details.
Tuesday, October 31, 2017
Keith Hylton has posted to SSRN Deterrence and Aggregate Litigation. The abstract provides:
This paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, in the absence of the class action device, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance is observed, which worsens as the number of victims increases. Compliance is never socially optimal, and the shortfall from optimality increases with the number of victims. These results, which continue to hold even if victims anticipate being joined in a single forum, suggest a more nuanced and potentially more robust justification for the class action than has hitherto been provided. Implications for collusive settlements of class action litigation are discussed.
Monday, October 30, 2017
Nancy Moore has posted to SSRN her contribution to the JTL symposium on the Restatement of Intentional Torts to Persons. Entitled Restating Intentional Torts: Problems of Process and Substance in the ALI's Third Restatement of Torts, the abstract provides:
The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own Reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is currently ongoing. Rather than applaud or critique the specific choice the Reporters are making, I have chosen to discuss two broader concerns regarding the project. The first concern is that the piecemeal nature of assembling all the separate projects of the Third Restatement of Torts (including the review and adoption of different sections within Intentional Torts) has made the Intentional Torts Reporters’ task more difficult than it should have been and may contribute to an overall product that is flawed in important respects, primarily because of inconsistencies that cannot easily be corrected. The second concern is that the Intentional Torts Reporters have too often lost sight of the conceptual distinctions between intentional and nonintentional torts. Although I agree that these conceptual distinctions should not have driven the basic organization of the project, as was once suggested, I argue that the Reporters are making doctrinal decisions that further blur, rather than clarify, the boundaries between the intentional torts and other torts, primarily negligence.
Friday, October 27, 2017
The Oklahoma Supreme Court has ruled the state's med mal certificate of merit requirement unconstitutional. This is the third time the court has rejected a certificate of merit requirement, striking down laws in 2006 and 2013.
The court says the statute created "a costly, meaningless and arbitrary barrier to court access" and infringed on the district court's authority.
U.S. News has the story.
Thursday, October 26, 2017
John Oberdiek has posted to SSRN the Introduction to Imposing Risk: A Normative Framework. The abstract provides:
This is the Introduction to Imposing Risk: A Normative Framework (Oxford University Press, 2017).
Human life has always been shadowed by risks like disease and natural disaster, but modern life is distinctively risky. In the first instance, today, risk utterly permeates life. The sheer variety and scope of risks that attend industrialized and industrializing societies are unique to them. Our agrarian and geographically dispersed ancestors did not face the risks that accompany the use of automobiles and high-speed transit, the mass production of goods and widespread use of chemicals, vast construction and public works projects, or the countless other risks to which we are exposed in our everyday lives. In light of the fact that risk is ubiquitous in modern life, it should be no surprise that sociologists have called ours a “risk society,” focused on containing the risks that modernization itself has created. This sociological fact implies a normative one that, in conjunction with the pervasiveness of risk, explains why modern life is distinctively risky: the risks we now face are morally cognizable. For they are, in the main, subject to our control – indeed, they are typically our creation. The risks that define modern life are therefore our responsibility. As they are largely imposed by people on people, they call for moral assessment. This book addresses some of the central questions stimulated by our contemporary practices of imposing risk.
Wednesday, October 25, 2017
Bob Rabin has posted to SSRN Dov Fox on Reproductive Negligence: A Commentary. The abstract provides:
This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case for a newly recognized tort of reproductive negligence that embraces all of these categories.
My commentary proceeds as follows. From a historical perspective, Part I attempts to locate his claim for recognition of a more expansive version of recovery for stand-alone intangible harm in currently accepted tort duties. From a liability perspective, while finding much to be admired in this proposed new theory of recovery, Part II questions whether it is workable to view reproductive negligence as a single pathway rather than three distinct routes to recognizing new tort rights. And finally, from a damages perspective, Part III draws on expansive themes in other areas of recovery for intangible harm to suggest additional foundational support for Fox’s effort to push the frontier of recovery for intangible harm into new territory.
Tuesday, October 24, 2017
Scott Hershovitz has posted to SSRN Treating Wrongs as Wrongs: An Expressive Argument for Tort Law. The abstract provides:
The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law.
In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.
I'm happy to say the piece will be published in issue 2017:2 of the Journal of Tort Law.
Monday, October 23, 2017
Tuesday, October 17, 2017
Lisa Laplante has posted to SSRN Human Torts. The abstract provides:
Human Torts is the first article to describe how ordinary municipal tort lawsuits in the United States provide essential remedies for human rights abuses. Despite the rising level of hate crimes, bullying, corporate malfeasance, and other private acts that result in great harm and can lead to civil litigation, American scholars have never explored how everyday tort claims grounded in purely domestic common law doctrine between private, non-state actors are in fact human rights claims even if never pleaded as such in U.S. courts. Framing tort litigation as a form of human rights protection may appear to be a novel aspirational proposal, but comparative law reveals that most countries in the world follow this horizontal approach. Strikingly, a close look at the genealogy of tort law indicates that the United States also once did the same. Only in the last half century has the focus on rights been eclipsed due to the imposition of an instrumental, economic account of tort law that seeks to balance the costs of human interactions at the risk of commodifying the value of life. In response, this Article proposes practical ways to reintegrate the rights perspective into tort law. In doing so, it presents a “progressive” view of torts in a world in which private actors wield great power yet are not held sufficiently accountable for the harms they cause to innocent individuals and communities.
Friday, October 13, 2017
We have heard a lot about technology changing tort law in the form of autonomous vehicles. Now Giant Foods is experimenting with a roving robot in its grocery stores. "Marty" has a number of skills: he can check prices and help with stocking. His main job, however, is to scan the aisles for potential slip hazards on the floor. If the technology is successful, we may have safer stores and fewer tort cases. PennLive has the story. Youtube has video.
Thursday, October 12, 2017
A study (with a small sample) published in JAMA Internal Medicine found the majority of patients satisfied with communication-and-resolution programs, a more cooperative alternative to litigation in the med mal context. Only 2 of the 40 patients interviewed felt the process was "unfair".
When it came to compensation, 16 of the 27 patients and family members who received any compensation were satisfied. Those who were not satisfied with the compensation tended to be dissatisfied with the overall communication process.
AJMC.com has more details.
Wednesday, October 11, 2017
Witnesses to the mass shooting in Las Vegas have filed a would-be class action lawsuit against manufacturers of bump stocks, the device used by shooter Stephen Paddock to accelerate gunfire from his semi-automatic weapon. Causes of action include negligence, infliction of emotional distress, products liability, and public nuisance. The suit seeks a court-supervised psychological monitoring program for the class plaintiffs, paid for by defendants, as well as punitive damages. The ABA Journal has details.
Do bump stocks fall under the 2005 Protection of Lawful Commerce in Arms Act? Bloomberg
Monday, October 9, 2017
Leslie Kendrick has posted to SSRN Free Speech as a Special Right. The abstract provides:
Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right, but they conclude that it is not. What the term “special right” means in these contexts, however, remains elusive. The term usually suggests that the right in question is distinguishable from the usual governmental decision making processes and from other rights. But just how distinctive the right must be, and in what ways, is rarely defined clearly. Indeed, many discussions of free speech assume quite demanding criteria for a special right of freedom of speech, even as these criteria remain incompletely articulated.
This paper seeks to define the criteria for a special right. It argues that the idea of a special right actually conceals two separate requirements. First, a special right must be distinct, in that the activities covered by the right must be analytically distinguishable from the activities outside of it. Second, a special right must be robust in the protection it affords. Most theories demand that a free speech right be highly distinctive, if not singular, and that it receive highly robust protection. By contrast, this paper posits that distinctiveness is a requirement of a special right only to a minimal extent and robustness, as commonly understood, not at all. On the revised criteria offered here, it seems possible that speech may after all be special, though the free speech right we want may be different from the one we can have.
Thursday, October 5, 2017
Wednesday, October 4, 2017
The number of medical malpractice cases filed in Kansas between July 1, 2016 and June 30, 2017 increased to 276 from 248 the prior fiscal year. The number of cases filed in Kansas in the early 2000s hovered between 300 and 400. Many jurisdictions have seen years of decreases. Settlement figures are near a 10-year average. The Topeka Capital-Journal has details.
Tuesday, October 3, 2017
Val Joseph Corbett has posted to SSRN The Discount Rate & Periodic Payments in Tort Law. The abstract provides:
The ‘lump sum, once and for all’ method of payment of damages in tort law puts judges in the invidious position of having to put a financial value not only on the plaintiff’s current injuries but effectively requires them to peer into a crystal ball to ascertain the level of award that the plaintiff will require to sustain them for the rest of their lives while at the same time ensuing the award is not so excessive that it results in them receiving more than their due. In light of this background, it is the purpose of this article to critically review recent developments in the courts’ approach in Ireland and the UK in making such calculations and the impact of proposed legislation on the structure of the payment of damages awards in the form of periodic payments.
Friday, September 29, 2017
Nahel Asfour has published Wrongful Enrichment: A Study in Comparative Law and Culture (Hart Publishing). The blurb provides:
This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions. The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine. Revised Dissertation. (Series: International Studies in the Theory of Private Law) [Subject: Contract, Tort & Restitution Law; Comparative Law]