TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, August 23, 2016

Hylton on Patent Infringement Damages

Keith Hylton has posted to SSRN Enhanced Damages for Patent Infringement:  A Normative Approach.  The abstract provides:

In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.

August 23, 2016 in Damages, Scholarship | Permalink | Comments (0)

Monday, August 22, 2016

JOTWELL Torts: Bublick on Nolan on Preventive Damages

Over at JOTWELL, Ellie Bublick reviews Donal Nolan's Preventive Damages.

August 22, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Friday, August 5, 2016

Dillbary, Edwards & Vars on the Costs of Suicide

Shahar Dillbary, Griffin Edwards, and Fredrick Vars have posted to SSRN The Costs of Suicide.  The abstract provides:

This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide—the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.

August 5, 2016 in Scholarship | Permalink | Comments (1)

Tuesday, August 2, 2016

Schwarcz on a Unified Theory of Insurance Law

Daniel Schwarcz has posted to SSRN A Unified Theory of Insurance Law:  The Clarification, Production, and Dissemination of Coverage Information.  The abstract provides:

The central goal of insurance law is to clarify, produce, and disseminate information about the scope of insurers’ coverage obligations to policyholders. This Article examines how insurance law and regulation seek to achieve these objectives, and to what ends. To do so, it distinguishes among three different types of coverage information: (i) purchaser information, or coverage information that is communicated to policyholders at the time they purchase coverage; (ii) policy information, or coverage information that is contained within the four corners of the insurance policy; and (iii) judicial information, which is coverage information that is ascertainable only after researching judicial opinions resolving coverage disputes. The Article shows how each of these three forms of coverage information can promote more efficient insurance markets, frequently in ways that are largely overlooked or under-appreciated by courts and commentators. This framework not only helps illuminate the underlying structure of insurance law. It also sheds new light on various long-standing disputes in the field, which often require prioritization and trade-offs among the three different types of coverage information. For instance, the Article suggests that one important reason for embracing a sophisticated policyholder exception to the ambiguity rule is that doing so produces judicial information at the expense of policy information, a sensible tradeoff with respect to sophisticated policyholders. Similarly, the Article argues that, contrary to the ordinary rule, courts should generally refuse to admit extrinsic evidence to disambiguate policy language when it comes to consumer-oriented policies, because doing so can undermine the production of policy information when purchaser information is present. Yet these two types of information serve very different purposes in the insurance context. More generally, the Article suggests that a substantial number of perennial disputes in insurance law can be helpfully analyzed by reference to their impact on purchaser information, policy information, and judicial information.

August 2, 2016 in Scholarship | Permalink | Comments (0)

Monday, August 1, 2016

Steinitz & Gowder on Transnational Litigation as Prisoner's Dilemma

Maya Steinitz and Paul Gowder have posted to SSRN Transnational Litigation as a Prisoner's Dilemma.  The abstract provides:

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.

August 1, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, July 27, 2016

Hnylka on Recklessness in Sports Injury Litigation in California

Joseph Hnylka has posted to SSRN California Drops the Ball:  The Lack of a Clear Approach to Recklessness in Sports Injury Litigation.  The abstract provides:

California jurisprudence lacks a uniform, clear, and manageable approach to recklessness in sport injury cases. In Knight v. Jewett, 3 Cal. 4th 296 (1992), the California Supreme Court adopted a unique “duty” approach for primary assumption of risk cases involving sports. The Court ruled that a plaintiff’s subjective knowledge and awareness of risks were irrelevant. Instead, the Court noted that the focus of the inquiry should be whether “in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff.” Under the new duty approach, although there is no duty to protect a plaintiff from risks inherent in the sport itself, participants, coaches, and instructors will be liable for intentionally injuring the plaintiff or engaging in conduct that is “so reckless as to be totally outside the range of ordinary activity involved in the sport.” In the past two decades, California recklessness cases involving coaches and sport participants have become confusing. Courts lack a uniform approach and continue to apply different standards for recklessness.

First, courts have difficulty applying the California Supreme Court’s definition of recklessness, which requires courts to determine whether conduct is “totally outside the range of ordinary activity involved in the sport.” This standard provides no guidance to the court or to the trier of fact who must distinguish reckless conduct from negligent or careless conduct.

Second, courts are confused by the relationship between the concepts of recklessness and inherent risk. The concept of inherent risk is critical to the application of the primary assumption of risk doctrine. Inherent risk defines duty, and a defendant has no duty to protect plaintiff from risks inherent in the sport. However, because recklessness requires conduct “totally outside the range of ordinary activity involved in the sport,” does a finding that plaintiff was injured by a risk inherent in the sport preclude a finding of recklessness? When a court rules that a risk is not inherent, is the court also saying the risk is “totally outside the range of ordinary activity involved in the sport”?

Third, California’s courts are confused by the relationship, if any, between recklessness and the defendant’s duty not to increase the risk. Are these duties essentially the same when defendant is a coach or sport participant? If not, may courts and plaintiff’s attorneys use the duty not to increase the risk as a vehicle to bypass the intentional/reckless standard and instead apply a negligence standard to coaches and participants in sport injury cases?

Fourth, some courts of appeal, perhaps frustrated by the lack of a clear standard for recklessness, have traveled beyond the California Supreme Court’s recklessness definition and have used different standards to determine whether a defendant’s conduct was reckless. Some courts have used the Restatement of Torts to define recklessness in sports injury cases. Other courts have used a policy-based test for recklessness.

The confusion can be significantly decreased, and perhaps eliminated, if the courts adopt a uniform, policy-based approach to inherent risk and use the Restatement standard for recklessness in sport injury cases. Under the policy-based approach to inherent risk, a risk is inherent if the prohibition of the defendant’s conduct would neither chill vigorous participation in the sport or activity nor alter the nature of the sport or activity. California courts also should use the Restatement standard for recklessness in sport injury cases. The Restatement approach can be used as a recklessness standard in sport injury cases without difficulty if the question of recklessness is raised, as it should be, after the court has applied the policy-based test for inherent risk, suggested above. Finally, the courts should abandon the defendant’s duty not to increase the risk beyond what is inherent in a sport. The duty not to increase the risk is unnecessary and only increases confusion.

July 27, 2016 in Scholarship, Sports | Permalink | Comments (0)

Monday, July 18, 2016

Most-Cited Torts/Products Liability Scholars (2010-2014)

Brian Leiter has posted the most-cited torts and products liability scholars in the period 2010-2014.  The data is drawn from a 2015 study led by Gregory Sisk.

Rank

Name

School

Citations

Age in 2016

1

John C.P. Goldberg

Harvard University

  550

55

2

Benjamin Zipursky

Fordham University

  470

56

3

Tom Baker

University of Pennsylvania

  450

57

4

Robert Rabin

Stanford University

  410

77

5

Catherine Sharkey

New York University

  400

46

6

Kenneth Abraham

University of Virginia

  350

70

7

Anita Bernstein

Brooklyn Law School

  290

55

 

Stephen Sugarman

University of California, Berkeley

  290

74

9

David Rosenberg

Harvard University

  270

73 (est.)

10

Michael Green

Wake Forest University

  240

66

   

Other highly-cited scholars who work partly in these areas

   
 

Richard Epstein

New York University; University of Chicago

2680

73

 

Steven Shavell

Harvard University

1340

70

 

Saul Levmore

University of Chicago

  550

63

 

Keith Hylton

Boston University

  440

56

July 18, 2016 in Scholarship, TortsProfs | Permalink | Comments (0)

Thursday, July 7, 2016

Sharkey on the Relationship Between the Administrative State and the Common Law

Cathy Sharkey has posted to SSRN The Administrative State and the Common Law:  Regulatory Substitutes or Complements?  The abstract provides:

The modern administrative state looms larger than ever, and grows at an ever-accelerating pace. Not everyone is pleased with these developments. Four such individuals — Chief Justice Roberts, Justices Thomas, Alito, and the late Justice Scalia — have expressed their displeasure, indeed their alarm, with consistency, clarity, and vigor. They warn that the rise of administrative agencies, and the attendant ascendance of doctrines of mandatory judicial deference to agency interpretations of federal law, signals no less than the end of our government’s separation-of-powers structure, and our right to live our lives without fear of bureaucratic encroachment at every turn. Their opinions and dissents sounding this theme reverberate with seemingly unprecedented urgency in the face of a never-before-encountered threat.

As it turns out, however, the same alarm bell was sounded decades ago — by Roscoe Pound. Pound viewed administrative action as lawless, capricious, and marred by prejudice. He warned that agencies were self-interested, too powerful, and ever grasping for even more power.

After outlining the uncannily similar attitude towards agencies expressed by Pound and our Supreme Court’s conservative core, this Article probes how those views diverge. For Pound, the ideal regulatory alternative to agency action was the common law of torts, which he characterized as the last bastion of a democratic society. This is decidedly not the view of the conservative core. Their antagonism towards the common law of torts, which apparently runs even deeper than their hostility towards agencies, is on full display in their federal preemption decisions. How, then, to fill the regulatory void the conservative core seems to leave agape? This Article proposes one possible path to the answer.

Drawing inspiration from the views of Pound himself, as well as the work of Guido Calabresi, this Article proposes that courts should adopt an altogether new approach, one whereby they effectively incorporate input from federal agencies, while at the same time ensuring that such agencies do not overreach. This need not entail the wholesale rejection of agency interpretive authority espoused by the conservative core in its non-preemption decisions. Instead, and as even Pound recognized, courts can and should exercise oversight to ensure that agency interpretations and conclusions are backed by responsible rulemaking procedures and empirical support. This approach can lead to an effective tort-agency partnership, where the administrative state and common law can operate as regulatory complements.

July 7, 2016 in Scholarship | Permalink | Comments (0)

Friday, July 1, 2016

JOTWELL Torts: Chamallas on Swan on Bystanders and Bullies

Martha Chamallas reviews Sarah Swan's Bystander Interventions at JOTWELL.

July 1, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, June 27, 2016

French on Gawker and the $140M Hulk Hogan Verdict

Christopher French has posted to SSRN Sex, Videos, and Insurance:  How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict.  The abstract provides:

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most people for: 1) the shockingly high verdict amount of $140 million awarded to a celebrity adulterer who was filmed having sex with his best friend’s wife, and 2) the battle between what constitutes the outer boundaries of what is considered “news” under the First Amendment and a celebrity’s right to privacy. The case also should be remembered, however, for the lesson it provides business owners: instead of facing a damage award that forced Gawker to file for bankruptcy and to now seek relief on appeal, Gawker actually could have avoided paying any portion of the damage award. How could Gawker have obtained that result? Insurance. This article debunks the conventional wisdom that insurance does not cover intentional torts such as invasion of privacy or punitive damage awards and that it is against public policy to allow insurance to cover intentional torts and punitive damages. Consequently, if Gawker had purchased appropriate insurance, then it may have been able to avoid paying any portion of the ultimate damage award.

June 27, 2016 in Current Affairs, Scholarship | Permalink | Comments (0)

Tuesday, June 14, 2016

Twerski & Farber on Comparative Fault and Consent

Aaron Twerski & Nina Farber have posted to SSRN Extending Comparative Fault.  The abstract provides:

This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative fault principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This article focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.

June 14, 2016 in Scholarship | Permalink | Comments (0)

Monday, June 13, 2016

Golanski on Personal Jurisdiction in Mass Tort Litigation

Alani Golanski (Weitz & Luxenberg) has posted to SSRN Why Daimler Accommodates Personal Jurisdiction in Mass Tort Litigations.  The abstract provides:

National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.

June 13, 2016 in MDLs and Class Actions, Scholarship | Permalink | Comments (0)

Thursday, May 26, 2016

JOTWELL Torts: Geistfeld on Eisenberg & Engel on Empirical Data and Negligence

Monday, May 23, 2016

Shmueli & Sinai on Paying Damages TO the Tortfeasor

Ben Shmueli & Yuval Sinai have posted to SSRN Victim Pays Damages to Tortfeasor:  The When and Wherefore.  The abstract provides:

Is there a reality in which the victim pays damages to the tortfeasor? This article analyzes Calabresi and Melamed’s liability rule for the damaging party (Rule 4), where the damaged party has the right to prevent pollution if the polluter is compensated first. Under the conventional application of this rule, the victim first collects the money and compensates the injurer, and only then is the injurer required to eliminate the nuisance (ex ante). There is no reference to a possibility of the injurer first eliminating the nuisance and only then receiving compensation (ex post). We argue that the timing of the payment should be changed when the activity causing the nuisance has social and economic value. Each version of the rule advances the aggregate welfare in some sense, but also harms it in another.

The primary aim of the present article is to introduce a new model for Rule 4 that would guide legislators, regulators, and judges in deciding when to order compensation as a condition for eliminating the nuisance and when to order the injurer to remove the nuisance first and only then collect the funds.

This article also introduces a comparative perspective that reveals the potential use of the ex post version of Rule 4, as manifest in sources of the Jewish legal tradition. This comparison further bolsters our proposal in favour of a division between ex ante and ex post versions of the rule.

Ultimately, offering two versions for the implementation of Rule 4 would better enable the adaptation of a suitable solution according to the circumstances and thus would widen the possibilities for the rule’s use.

May 23, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, May 18, 2016

Mueller on MDL Products Settlements

Christopher Mueller (Colorado), who has a terrific Evidence casebook, has posted to SSRN Taking Another Look at MDL Product Liability Settlements:  Somebody Needs to Do it.  The abstract provides:

This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.

May 18, 2016 in MDLs and Class Actions, Scholarship | Permalink | Comments (0)

Wednesday, May 11, 2016

Miller on Torts and Human Rights Abuses

Nathan Miller has posted to SSRN Human Rights Abuses as Tort Harms:  Losses in Translation.  The abstract provides:

This Article examines the normative challenges posed by bringing international human rights claims in state courts under the common law of torts. It argues that the normative structure of the private law of torts cannot adequately address the very different concerns at stake when addressing public harms. Torts address issues that arise between two parties and those parties alone. But public law addresses harms done simultaneously to individuals and to the body politic. Redress for public harms should encompass both individual and systemic remedies, but tort law offers only the former. Instead of advancing tort claims, advocates should urge state courts to exercise their concurrent jurisdiction over the customary international legal norms incorporated into the federal common law to hear claims for violations of international human rights.

May 11, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, May 4, 2016

Sharkey on the Economic Loss Rule in Products Cases

Cathy Sharkey has posted to SSRN The Remains of the Citadel (Economic Loss Rule in Products Cases)The abstract provides:

Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise of implied warranty earlier in the century, was of great doctrinal import — a moment when strict liability threatened to erase altogether the boundary between tort and contract in the context of defective products cases and move those cases firmly into the tort realm. The economic loss rule emerged as a crucial new levee against a flood of potentially limitless tort liability. It forged a new dividing line, keeping cases involving pure financial losses within the domain of con-tract by denying recovery for such losses under any theory of tort. Seen in this light, the economic loss rule emerged to protect the “remains” of the citadel of privity.

William Prosser, so intently focused on the dramatic siege on the citadel of privity, overlooked a few, highly significant cases, where courts continued to require privity in order for the plaintiff to recover for negligently inflicted economic losses by defective products. Over the two decades that followed Prosser’s The Fall of the Citadel, the debate over the economic loss rule in products cases continued to unfold, culminating in the U.S. Supreme Court’s embrace in East River Steamship. That case ensured the economic loss rule would keep contract from “drowning in a sea of tort” and that the wall between the “separate spheres” of tort and contract law could not be breached.

After an exploration of the evolution of, and rationales for, the economic loss rule in products cases, this Article examines whether the citadel’s last bastion should be preserved. It con-cludes that the economic loss rule in products cases may be best justified as a means to induce the putative victims — here, the parties with superior information regarding risk of financial loss — to protect themselves.

May 4, 2016 in Products Liability, Scholarship | Permalink | Comments (0)

Monday, May 2, 2016

Dagan & Dorfman on Ripstein's "Private Wrongs"

Hanoch Dagan & Avi Dorfman have posted to SSRN Against Private Law Escapism:  Comment on Arthur Ripstein, Private Wrongs.  The abstract provides:

Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that his theory fails to meet such a test.

The Comment proceeds in four stages. We first lay out the basic structure of Ripstein’s theory of the justice of tort law and the nature of the argument he deploys in developing this theory (Part I). We then suggest that, and explain why, his effort to derive the content of the justice of tort law by taking legal doctrine at face value must fail (Part II). The next two stages of the argument consider an alternative reading of Private Wrongs (Part III) and a broader assessment of the justice of tort law against the background of public law (Part IV).

May 2, 2016 in Scholarship | Permalink | Comments (0)

Friday, April 29, 2016

Two by Goldberg & Zipursky

John Goldberg & Ben Zipursky have posted two pieces to SSRN.  First, from this year's AALS Torts Panel, The Myths of MacPherson.  The abstract provides:

For a symposium marking the centenary of Macpherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.

Next, Triangular Torts and Fiduciary Duties.  The abstract provides:

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. “Triangular torts,” as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.

(Via Solum/LTB)

April 29, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, April 26, 2016

JOTWELL Torts: Engstrom on Radin on Boilerplate

Over at JOTWELL, Nora Engstrom reviews Margaret Jane Radin's Boilerplate:  The Fine Print, Vanishing Rights, and the Rule of Law.

April 26, 2016 in Books, Scholarship, Weblogs | Permalink | Comments (0)