Monday, March 2, 2015
I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute. Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.
Friday, February 27, 2015
The next issue of the Journal of Tort Law is a tribute to Jeffrey O'Connell, who died in January of 2013. From the Introduction:
O’Connell’s overriding goal was to make compensation more readily available to the injured. He saw traditional tort law as dilatory, unfair, inefficient and hence inadequate to address the pressing needs of injury victims. In pursuing reform, he necessarily took a stand in the theoretical debate about the purposes of tort law. In the typical case, he believed, tort should be compensatory; matters of individualized justice or deterrence were secondary. Given the realities of tort litigation as he saw them, O’Connell believed justice and deterrence goals were both harder to accomplish and harder to measure than a compensation objective. On this understanding, tort law is best justified as insurance and yet, for that very reason, was ripe for radical reform, given its deficiencies. At heart, O’Connell was deeply practical and pragmatic. He wanted his ideas to matter for the world and he valued the tangible good of victim compensation over what he took to be more speculative goods.
The papers that follow reference O’Connell’s pragmatism, but also branch out to touch on many different aspects of his work. Robert Rabin finds that mass tort and disaster relief claims are today being handled on terms congruent with O’Connell’s efforts to realign the tort system to focus on compensation. Kenneth Abraham and G. Edward White combine O’Connell’s love of biography with his interest in tort law to study the life and influence of a scholar who was in many ways a forerunner and kindred spirit: William Prosser. Nora Freeman Engstrom, in the spirit of O’Connell’s critiques of tort, turns the tables by subjecting no-fault programs to careful analysis. Anthony Sebok finds one of O’Connell’s early first-party insurance proposals relevant to currently heated debates over litigation finance. Zoë Sinel challenges O’Connell’s claim that tort is properly understood and assessed by its ability to deliver compensation. Finally, Christopher Robinette finds in O’Connell’s scholarship guidance as to how to begin distinguishing those tort suits worthy of individualized justice treatment from those better suited to serve a compensatory objective.
The pieces are available at De Gruyter's "Ahead of Print" section, though I believe Tony's and Nora's articles are not yet included.
Friday, February 20, 2015
Jeb Barnes (USC-Political Science) and Thomas Burke (Wellesley-Political Science) have published How Policy Shapes Politics: Rights, Courts, Litigation, and the Struggle Over Injury Compensation
How Policy Shapes Politics analyzes the politics of injury compensation in the United States, a field in which judicialized policies operate side-by-side with bureaucratized social insurance programs. The authors conclude that the choice between judicialized and bureaucratized injury compensation policies can have powerful political consequences.
By comparing the political trajectories of different types of policies, some more court-centered, others less so, the authors probe the consequences of arguably one of the most significant developments in post-World War II government, the increasingly prominent role of courts, litigation, and legal rights in politics.
Wednesday, February 18, 2015
Jonathan Cardi (Wake Forest) has posted to SSRN The Role of Negligence Duty Analysis in Employment Discrimination Cases. The abstract provides:
In a concurring opinion in the 1989 decision Price Waterhouse v. Hopkins, Justice O’Connor first referred to Title VII of the Civil Rights Act as a "statutory employment 'tort.'" Since then, the Supreme Court and federal courts generally have reified Justice O’Connor’s words, gradually altering the legal perception of employment discrimination legislation from its intended nature as a set of civil rights statutes aimed at ridding the nation of a pernicious social problem to a narrowly tailored provision of compensation for private wrongs. Courts have done so, in part, by importing doctrine from the common law of torts — particularly in the realm of factual causation and scope of liability — to interpret and fill supposed gaps in the statutes. This Article asserts that courts’ embrace of tort concepts runs even deeper than they have expressly stated — that courts have drawn not only upon the concepts of causation and scope of liability (proximate cause), but also engaged the question of whether employers owe a duty not to take allegedly discriminatory actions. The Article urges that use of duty reasoning is problematic for two torts-internal reasons. First, the nature of wrongfulness in employment discrimination cases is not analogous to negligence or, indeed, to any tort. It is therefore improper for courts to apply tort conceptions of wrongfulness to answer questions of liability in employment discrimination cases. Second, if employment discrimination claims are, as the Supreme Court has referred to them, statutory torts, then drawing upon common-law duty reasoning is improper, as it is an incorrect application of the law of statutory torts.
Monday, February 16, 2015
Benjamin Ogden (Boston University-Economics) and Keith Hylton (Boston University) have posted to SSRN Incentives to Take Care Under Contributory and Comparative Fault. The abstract provides:
Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula. We show that, under a correct application of the Hand Formula, there are differences between the two regimes: under bilateral harm, comparative negligence generates greater incentives for care, but this care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates more care, but only when such care is not socially optimal. Therefore, it is possible to socially rank negligence regimes depending upon the symmetry of potential harm and costs of care. We discuss a potential reform the court could undertake, the Retrospective Negligence Test, that when applied in the case of bilateral harm would make comparative negligence optimal.
Thursday, February 12, 2015
Tuesday, February 3, 2015
Ronen Avraham (Texas) has posted two pieces to SSRN. First, Does the Theory of Insurance Support Awarding Pain and Suffering Damages in Tort?. The abstract provides:
This chapter asks whether THE THEORY OF INSURANCE SUPPORTS AWARDING PAIN AND SUFFERING DAMAGES IN TORTS. The answer is an unequivocal “Yes.” Many commentators have argued that individuals do not (and should not) demand insurance for losses that do not lower their marginal utility of wealth. From this perspective, tort laws that provide victims with compensation for pain and suffering harms effectively force them to purchase insurance that they don’t value. This chapter disputes this logic on several levels. First, it suggests that so-called “pure non-monetary losses” are exceedingly rare in practice, and are difficult to define even in theory. Moreover, non-monetary losses are likely to be correlated with monetary losses, and this correlation generates a demand for insurance covering both types of losses under the traditional model used by law and economics scholars. Coverage of non-monetary losses can also be demanded under many plausible alternatives to expected utility theory. The chapter also takes issue with the empirical evidence that some have interpreted as suggesting a lack of demand for coverage of non-monetary losses. Finally, the chapter suggest that future advances in neuroscience may make it possible to accurately measure mental states associated with pain and suffering, obviating the need for the subjective testimony that introduces so much noise into the assessment of these damages.
Second, Estimating Pain and Suffering Damages-Paths are Many, Loss is One. The abstract provides:
Opponents of pain and suffering damages argue that, unlike pecuniary damages, pain and suffering damages are hard to quantify accurately. They argue that victims exaggerate their losses to receive higher damage awards, so that awarding pain and suffering damages may frustrate the function of tort law by compensating the victims too highly and arbitrarily. Another argument against pain and suffering damages is that the difficulty in objective measurement leaves the potential for enormous variance in awards at the discretion of individual judges and juries. This individual discretion may create a lack of horizontal equity and thus impede consistency among awards for like victims.
In a recent paper I argued that from a law and economics perspective pain and suffering damages should be fully compensated and should receive the same “respect” that economic damages receive (Avraham, 2015). I provided several arguments for that view. In this chapter I survey a number of solutions discussed in the literature on how to simplify the estimation of pain and suffering damages to cut administrative costs. My goal is to demonstrate the feasibility of the task of estimating the loss more than to recommend any specific path to it.
Thursday, January 29, 2015
Avi Dorfman (Tel Aviv) has posted to SSRN New Philosophical Foundations of Tort Law?. The abstract provides:
In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).
Tuesday, January 27, 2015
Patrick Hubbard (South Carolina) has just published Sophisticated Robots: Balancing Liability, Regulation, and Innovation in the Florida Law Review. The abstract provides:
Our lives are being transformed by large, mobile, “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements on the field to reduce the number and severity of injuries.
This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation that is necessary to develop these robots. This Article provides context for analysis by reviewing innovation and robots’ increasing size, mobility, autonomy, intelligence, and interconnections in terms of safety—particularly in terms of physical interaction with humans—and by summarizing the current legal framework for addressing personal injuries in terms of doctrine, application, and underlying policies. This Article argues that the legal system’s method of addressing physical injury from robotic machines that interact closely with humans provides an appropriate balance of innovation and liability for personal injury. It critiques claims that the system is flawed and needs fundamental change and concludes that the legal system will continue to fairly and efficiently foster the innovation of reasonably safe sophisticated robots.
Monday, January 26, 2015
Kyle Graham (Santa Clara) has posted to SSRN The Diffusion of Doctrinal Innovations in Tort Law. The abstract provides:
This article examines the diffusion of “innovations” — new ideas — in tort law. Drawing from a larger body of research into the spread of new products and ideas, this study charts and evaluates the adoption patterns associated with “successful” common-law doctrinal innovations in the law of torts. This analysis reveals recurring influences upon and tendencies within the spread of novel tort doctrines across the states, and explores the interactive qualities of the diffusion process. Furthermore, these diffusion patterns document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered diffusion dynamics associated with the ongoing diminution and fragmentation of the common-law tort dockets entertained by state supreme courts. The structural character of these influences will make it difficult, this article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid diffusion rates associated with innovations in tort law that spread during the 1960s, 1970s, and 1980s.
Tuesday, January 13, 2015
Avi Dorfman (Tel Aviv) has posted to SSRN Negligence and Accomodation: On Taking Others as They Really Are. The abstract provides:
Disagreements over the morality and the efficiency of the standard of reasonable care are at the root of the study of negligence law (and, perhaps, tort law as a whole). They typically proceed as though the most important question that needs to be addressed is that of the content of this standard, namely, the question of what reasonable care is. However, in these pages I shall argue that there exists another important question, which is to say the manner in which reasonable care is evaluated. This question, I show, is neither fixed by nor subservient to the content of the standard (whatever it is). Rather, the manner in which negligence is being assessed is partly constitutive of the morality of the reasonable care standard.
Whereas the leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of attending to the interests of others resonates well with a powerful notion of respectful accommodation of persons — that to attend to others respectfully is to engage them on their own terms (including, most importantly, their distinctive judgments and sensibilities). And to the extent that the standard of care captures the moral center of negligence law, the asymmetry in care assessment suggests that the notion of genuine respect, rather than social welfare or formal equality, is a basic virtue of the legal institution of negligence.
Monday, January 12, 2015
Kyle Logue (Michigan) has posted to SSRN Encouraging Insurers to Regulate: The Role (if Any) for Tort Law. The abstract provides:
Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to giving special premium discounts to insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law discourages insurers from engaging in the direct regulation of their insureds’ behavior. Under longstanding tort principles, if an insurer “undertakes” to provide serious risk-reduction services to an insured, the insurer can be found to have a duty of reasonable care and, should that duty be breached, held liable for any harms caused to third parties. This application of tort principles to insurance companies could be contributing to the moral hazard problem often associated with insurance — the tendency of insurance to cause risk to increase rather than decrease. This Article explores this problem and analyzes a number of ways to encourage insurers to regulate — from insurer-specific Good Samaritan statutes (which we might call a “carrot”) to the expansion of tort principles to create an affirmative duty on the part of insurers to regulate (which would definitely be a “stick”). What combination of carrots and sticks produces the optimal insurer incentives to regulate their insureds’ behavior? That is the question the Article addresses.
Tuesday, January 6, 2015
Friday, January 2, 2015
Symeon Symeonides (Willamette) has posted to SSRN Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey. The abstract provides:
This is the Twenty-Eighth Annual Survey of American choice-of-law cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws and it is intended as a service to fellow teachers of conflicts law, both in and outside the United States.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2014, and posted on Westlaw by midnight, December 31, 2014. Of the 1,204 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the highlights of the year:
One U.S. Supreme Court decision dealing with general jurisdiction, the second in three years, after a thirty-year silence; Seven cases deciding whether the Alien Tort Statute applies to actions filed by foreign plaintiffs against American defendants alleged to have aided and abetted the commission of international law violations outside the United States; a case involving a cross-border shooting of a Mexican boy by a U.S. Border Patrol agent; and a case arising from the imprisonment of U.S. contractor Alan Gross in Cuba;
Fifty-six court rulings striking down as unconstitutional the prohibition of same-sex marriages in 26 states, one ruling upholding the prohibition in four states, and a Texas case recognizing a California judgment that declared both male partners in a same-sex marriage to be the parents of a child conceived through artificial insemination and carried to term by a surrogate mother;
One more xenophobic statute, the eighth in four years, banning the use of certain foreign laws;
Several tort cases involving conduct-regulation conflicts and applying the law of the state of the tort, rather than the parties’ common domicile;
One state supreme court case joining the minority of courts that have rejected the doctrine of severability of choice-of-forum clauses, and several cases involving the interplay of those clauses and choice-of-law clauses;
A California Supreme Court case holding that the Federal Arbitration Act (FAA) did not preempt a California statute that prohibited waivers of “representative actions” filed by employees against employers for violating the state’s labor laws, and two cases disagreeing on whether contracting parties may avoid FAA preemption by choosing the “non-federal” part of a state’s law;
A New York case recognizing a foreign judgment, even though New York had no jurisdiction over the debtor or his assets; a Pennsylvania case giving full faith and credit to the New York judgment; and a D.C. case refusing to do so — and not only because New York did not have jurisdiction; and
Many other interesting conflicts cases involving products liability, other torts, contracts with and without choice-of-law clauses, insurance contracts, statutes of limitation, marriages by proxy, divorce, marital property, and successions.
Wednesday, December 24, 2014
Rick Rinaldi (EiC of the Widener Law Journal) has posted his Note, Fracturing the Keystone: Why Fracking in Pennsylvania Should Be Considered an Abnormally Dangerous Activity, to SSRN. The abstract provides:
During the early morning hours of December 15, 2007, Thelma and Richard Payne, an elderly couple, were startled awake when an explosion in their basement dislodged their Ohio home from its foundation. Their homestead for more than a half-century was completely destroyed due to nearby hydraulic fracturing (“fracking”) operations. In a similar instance in 2010, high levels of methane were discovered in a Pennsylvania family’s basement. The discovery came after Michael Leighton found his drinking water bubbling over the top of his 100-foot well and twenty small geysers on his property spewing water mixed with methane into nearby streams. Again the likely culprit was a nearby fracking operation. Such events epitomize just some of the risks associated with fracking, which have led many concerned citizens to vehemently voice their opposition to the practice in the Marcellus Shale region. Analyzing those risks, this comment argues that unconventional horizontal fracking should be considered an "abnormally dangerous" activity in Pennsylvania because such a classification is both legally appropriate and paramount in mitigating the future harms of fracking. Part II(A) describes the geological characteristics of the Marcellus shale deposit, including its potential gas reserves and the technological challenges of extracting it. Part II(B) provides a detailed description of the recently pioneered fracking procedure and the environmental risks it presents. Part III discusses the current regulatory framework that applies to fracking in Pennsylvania and discusses the failures of that framework to sufficiently protect the public. Part IV traces the common law development of strict liability, applies the current rule to fracking, and discusses the negative results of alternatively analyzing fracking under a negligence regime. Part V concludes that fracking will become increasingly safer through the imposition of strict liability, which will mitigate the negative environmental impacts of the industry, and in time, allow for expanding gas production through safer methods.
Monday, December 22, 2014
Claudia Landeo (Alberta-Department of Economics) has posted to SSRN Law and Economics and Tort Law: Theory and Experiments. The abstract provides:
In tort litigation, delayed settlement or impasse imposes high costs on the parties and society. Litigation institutions might influence social welfare by affecting the likelihood of out-of-court settlement and the potential injurers' investment in product safety. An appropriate design of litigation institutions and tort reform requires good knowledge of the factors that affect litigants' behavior. The combination of theoretical and experimental law and economics, which represents the cornerstone of the application of the scientific method, might enhance our understanding of the effects of litigation institutions and tort reform on settlement and deterrence.
We evaluate the interaction between theoretical and experimental law and economics in the study of tort litigation institutions. Special attention is devoted to liability, litigation and tort reform institutions, and behavioral factors that might affect impasse. Our analysis suggests a productive interaction between theoretical and experimental law and economics. In particular, findings from experimental economics work on litigation institutions indicate the presence and robustness of cognitive biases, and provide evidence of the effects of litigants' biased beliefs on the likelihood of impasse. These findings have motivated the construction of new economic models of litigation involving more empirically-relevant assumptions about litigants' beliefs. As a result of the application of the scientific method, the contributions of law and economics to the design of legal institutions might be strengthened.
Friday, December 19, 2014
Sean Williams (Texas) has posted to SSRN Dead Children: Tort Law and Investments in Child Safety. The abstract provides:
Should tort law treat cases of dead children differently than cases of dead adults? A diverse set of research — including bioethics studies, contingent valuation, and analyses of consumer behavior — all suggest that the answer is Yes. That research coalesces around a single pattern: people are willing to invest about twice as many resources in protecting children as they are in protecting adults, even when each are equally vulnerable to the relevant risk. This pattern extends to non-fatal risks as well, even those as mundane as the risk of catching a cold. These investment patterns suggest that, as a prima facie matter, a deterrence-oriented tort system should impose standards of care that are about twice as stringent for children as for adults, and award tort damages that are about twice as high for child victims. These insights — generated by focusing solely on deterrence — remain robust when we instead view tort law through the lenses of corrective justice or civil recourse. Each of these individual justice accounts of tort law is consistent with child exceptionalism, although some require fewer caveats than others. Such child exceptionalism is also consistent with plausible and attractive moral theories despite the fact that it could be framed as a deviation from formal equality. In addition to laying out the empirical and normative cases for heightened standards of care and heightened damages, the Article offers a set of tools that courts and legislatures can use to move tort law toward these goals.
Wednesday, December 10, 2014
Deborah Brake (Pittsburgh) has posted to SSRN Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation. The abstract provides:
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.
Tuesday, December 9, 2014
Michael Stein (W&M), Christopher Guzelian (Thomas Jefferson) & Kristina Guzelian (Thomas Jefferson) have posted to SSRN Expert Testimony in Nineteenth Century Malapraxis Actions. The abstract provides:
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.
Wednesday, December 3, 2014
If you have 7 or fewer years of teaching experience, you are eligible for the Yale/Stanford/Harvard Junior Faculty Forum, this year including Torts as a subject matter. The deadline is March 1, 2015. Details are here: Download JFF final call for submissions