Wednesday, August 20, 2014

Calabresi on Liability Rules

Guido Calabresi (Yale, Second Circuit) has posted to SSRN A Broader View of the Cathedral:  The Significance of the Liability Rule, Correcting a Misapprehension.  The abstract provides:

Recent years have seen a resurgence of Torts viewed as a purely private legal arrangement: whether described in terms of compensatory justice — the right of an injured party to be made whole — or of redress for civil wrongs — the right of an injured person to get back at the one who injured him. These positions reject the approach of the system builders (to use Izhak Englard’s felicitous phrase), those who see torts as part of a legal-political-economic structure of a polity. This latter, “public,” view of torts has been dominant, at least since my first article, and Walter J. Blum and Harry Kalven’s answer to it, aptly titled "Public Law Perspectives on a Private Law Problem." It is of the relationship between these approaches, and of the inevitability of the public-law (and hence, in part, economic) view of torts that I wish to write today. In doing so, however, I mainly want to correct an error that many system builders have made: that is, of viewing the liability rule (in torts and in its cognates) as a “second best” way of mimicking markets when markets “will not work,” or “are not available.” I want to claim a more significant economic role for the liability rule, and hence for torts, than that. For reasons that will be clear in due course, I call this "A Broader View of the Cathedral."

August 20, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

Long on Consent in Defamation and Employment Reference Cases

Alex Long (Tennessee) has posted to SSRN The Forgotten Role of Consent in Defamation and Employment Reference Cases.  The abstract provides:

As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references.  However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance.   Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history.  The Restatement (Second) of Torts has been highly influential in shaping the development of the defense of consent in the defamation context.  This article looks at the consent defense within the context of employment reference cases.  Specifically, the article examines the consent defense as described in the Restatement from an historical perspective and argues that the authors fundamentally misstated the law in a manner that has had negative consequence for employees who have been the victims of defamatory references.

August 19, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 18, 2014

Harris & Peeples on Demographic and System Variables in Med Mal

Catherine Harris  (Wake Forest-Sociology) & Ralph Peeples (Wake Forest) have posted to SSRN Medical Errors, Medical Malpractice and Death Cases in North Carolina:  The Impact of Demographic and System Variables.  The abstract provides:

A Study of hospitals in North Carolina from January 2002 to December 2007 reports that there was no statistically significant decrease in medical errors during this period, in spite of efforts to reduce them (Landrigan et al. 2010).  Our study utilizes a medical liability insurer's archive of death cases in North Carolina from 2002 to 2009 (156 cases involving 401 physician-defendants.  Given the implications of medical error for health care delivery, we consider whether demographic variables (age, gender, marital status and race) and system variables (hospital involvement and number of physician-defendants) are predictive of higher risk of death.  Our dependent variables are three major categories of error associated with patient death in the archive (diagnostic, treatment and surgical.  We find that men are significantly more at risk for diagnostic errors.  There is evidence that age and number of defendants is predictive of treatment errors.  Policy implications are discussed.

August 18, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

Dorfman & Jacob on Trespass

Avi Dorfman (Tel Aviv) & Assaf Jacob (The Interdisciplinary Center Radziner School of Law) have posted to SSRN Trespass Revisited:  Against the Keep-Off Theory of Property and for Owner-Responsibility.  The abstract provides:

The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property.  In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders.  This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own.  In this article, we argue that this view is mistaken.  We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question.  A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability.  On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.

--CJR

August 11, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2014

JOTWELL Torts: Bublick on Goudkamp's "Tort Law Defences"

Ellen M. Bublick (Arizona) has a Jot on James Goudkamp's 2013 book, "Tort Law Defences."

- SBS

August 8, 2014 in Scholarship, TortsProfs, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

Do Physicians Respond to Liability Standards?

Michael Frakes (Northwestern), Matthew Frank (Harvard student), & Seth Seabury (RAND) have posted to SSRN Do Physicians Respond to Liability Standards?.  The abstract provides:

In this paper, we explore the sensitivity in the clinical decisions of physicians to the standards of care expected of them under the law, drawing on the abandonment by states over time of rules holding physicians to standards determined by local customs and the contemporaneous adoption of national-standard rules.  Using data on broad rates of surgical interventions at the county-by-year level from the Area Resource File, we find that local surgery rates converge towards national surgery rates upon the adoption of national-standard rules.  Moreover, we find that these effects are more pronounced among rural counties.

--CJR

August 4, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Haack on "Evidence Matters: Science, Proof and Truth in the Law"

Of interest to TortsProfs is Evidence Matters: Science, Proof and Truth in the Law by Susan Haack (Miami), recently published by Cambridge University Press.   The abstract provides:

Is truth in the law just plain truth – or something sui generis? Is a trial a search for truth? Do adversarial procedures and exclusionary rules of evidence enable, or impede, the accurate determination of factual issues? Can degrees of proof be identified with mathematical probabilities? What role can statistical evidence properly play? How can courts best handle the scientific testimony on which cases sometimes turn? How are they to distinguish reliable scientific testimony from unreliable hokum? The dozen interdisciplinary essays collected here explore a whole nexus of such questions about science, proof, and truth in the law. With her characteristic clarity and verve, in these essays Haack brings her original and distinctive work in theory of knowledge and philosophy of science to bear on real-life legal issues. She includes detailed analyses of a wide variety of cases and lucid summaries of relevant scientific work, of the many roles of the scientific peer-review system, and of relevant legal developments.

 

Hat tip Richard Wright.

- SBS

 

 

July 29, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Oberdiek on Proximate Cause

John Oberdiek (Rutgers-Camden) has posted to SSRN Putting (and Keeping) Proximate Cause in Its Place.  The abstract provides:

This is a draft contribution to a forthcoming fetschrift in Michael S. Moore's honor, to be published by Oxford University Press.  The chapter takes on an aspect of Moore's important work on causation in law.

Before one can recover for an injury sounding in negligence, one must establish that the defendant more likely than not proximately caused the injury. That the positive law of negligence imposes this requirement is beyond controversy. What is more controversial is whether the requirement is conceptually and morally defensible. Michael Moore, singly as well as in tandem with Heidi Hurd, powerfully argues that it is neither. Specifically, Moore contends that the harm-within-the-risk test of proximate causation, despite its venerable history in tort law and reaffirmation in the latest Restatement, is “incoherent” and “morally undesirable.” It is bad enough, on Moore’s view, that negligence law bifurcates its causal inquiry, distinguishing as it does the question of actual causation from that of proximate causation, rather than pursuing a unified naturalistic inquiry into the substantiality of causal contribution. What is worse is that tort law can’t even get its own misguided causal inquiry half-right.

I do not share Moore’s jaundiced view of the harm-within-the-risk test of proximate cause – what I will call the “risk rule” for short. I begin by questioning his understanding of the risk rule as it figures in tort law, and go on to argue that neither his conceptual nor his moral criticism of the risk rule is decisive. In the course of rebutting Moore’s criticisms, I outline what I take to be the most compelling account of the risk rule in the law of torts. What emerges is a conception of proximate cause that is thoroughly moralized. Of course moral premises must be invoked to defend the risk rule’s moral merit, but, I argue, they must also be invoked to defend its conceptual coherence. In my view, the risk rule is both morally and conceptually sound.
 
Via Solum/LTB.
 
--CJR

July 29, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Chamallas on Comparative Vicarious Liability

Martha Chamallas (Ohio State) has posted to SSRN Two Very Different Stories:  Vicarious Liability Under Tort and Title VII Law.  The abstract provides:

Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees.

This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law.

The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.

--CJR

July 28, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2014

Erica Goldberg on Emotional Duties

Erica Goldberg (Climenko Fellow - HLS) has posted "Emotional Duties" to SSRN. The abstract provides:

The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on the hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by modern scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries. 


This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law.

- SBS

 

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

Tuesday, July 22, 2014

Tejani on Torts & Federalism

Riaz Tejani (University of Illinois Springfield-Department of Legal Studies) has posted to SSRN National Geographics:  Toward a 'Federalism Function' of American Tort Law.  The abstract provides:

This Article defends current contours in the federalization of tort law wherein norms have been federalized in discrete substantive areas although remaining shielded from federal incursion in others.  As suggested here, it becomes the task of judges to develop and refine these contours in the same fashion that they serve public law needs elsewhere through adjudication.  In support of this claim, this Article develops what I term the “federalism function” — the capacity for torts disputes to implicate the balance of federal and state authority and thereby reinforce or recalibrate that balance in large or small measure.  Indeed, as problems of scale cut increasingly across political persuasion and economic worldview,  the balance of central and local power through federalism becomes a key implication of many torts disputes today. This discussion is overdue in light of wider debates about federal preemption and state sovereignty.  Immigration reform and marijuana regulation are but two hot-button issues that illustrate the contemporary struggle over federalism.  More than tort law, these areas implicate what many have come to describe as “global governance” — the effort to assert uniform norms across ever-wider geographic and political distances.   Because immigration and marijuana policies necessarily affect the flow of people and things across the international border, they more understandably implicate and undermine the idea of states’ rights.  Tort law, meanwhile, still deals in cognizable, individual harms to person and property and has been the domain of state authority for centuries.  Nevertheless, tortious conduct increasingly flows across state boundaries via mass-market actors and increased communication technologies.  Adjudication in tort disputes increasingly takes the form of “public” or “regulatory” law.  It is then, in light of federalism’s widespread influence in policy discussions across the spectrum, not surprising to find the integrity of state common law up for reconsideration in many tort cases.  This reconsideration forms the federalism function.

--CJR

July 22, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 16, 2014

Hyman & Silver on Med Mal Litigation Trends

David Hyman (Illinois) and Charles Silver (Texas) have posted to SSRN Double, Double Toil and Trouble:  Justice-Talk and the Future of Medical Malpractice Litigation.  The abstract provides:

It’s not easy being a lawyer.  “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed partners and practice groups.  Small and mid-sized firms and solo practitioners are facing similar challenges. Some of these developments are attributable to the financial crisis and the Great Recession. Others are the result of structural and technological changes affecting the market for legal services — and those changes have revealed new weaknesses in the business forms through which lawyers have traditionally delivered legal services. To most inhabitants of Biglaw, these changes and challenges are unprecedented, but to lawyers who do medical malpractice and personal injury litigation, market turbulence of this sort is old hat. Over the past three decades, there have been dramatic changes in the market (and demand) for such services. Some of these changes are clearly attributable to legislative action, including caps on noneconomic or total damages, and procedural hurdles such as screening panels, certification requirements, and interlocutory appeals of expert witness reports.  But, even in states that have not taken such steps, there has been a long-term secular decline in the volume of medical malpractice litigation.  Apart from the highly visible public brawl over the merits of damage caps, these developments have attracted little attention. However, the dynamics are clear to those who wish to pay attention to them. In this Article, we explore these trends, highlight the ways in which they have interacted with one another, and then briefly discuss why it is not helpful to analyze these developments in terms of their impact on “access to justice.”

--CJR

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

Tuesday, July 15, 2014

JOTWELL Torts: Sharkey on Twerski & Henderson

Cathy Sharkey (NYU) has a Jot on Twerski & Henderson's "Fixing Failure to Warn" here.

--CJR

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

Friday, July 11, 2014

Encarnacion on Corrective Justice

Erik Encarnacion has posted "Corrective Justice as Making Amends" to SSRN.  The abstract provides:

Many tort theorists claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, several tort theorists have criticized traditional corrective justice theories for, among other things, failing to account for key structural features of tort practice. This article outlines and defends an alternative conception of corrective justice called the making amends conception. By understanding corrective justice as just another name for the familiar moral phenomenon of making amends, and by viewing tort law as a formalization of that informal phenomenon, we can arrive at a conception of corrective justice that can resist the criticisms while providing an independently attractive picture of tort law.

- SBS

July 11, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

Bernabe on Injuries by Dog

Alberto Bernabe (The John Marshall Law School & Torts Blog) has posted to SSRN Civil Liability for Injuries Caused by Dogs after Tracey v. Solesky:  New Path to the Future or Back to the Past?.  The abstract provides:

Two years ago, the Maryland Court of Appeals issued an opinion in a case called Tracey v. Solesky in which it modified the common law of the state related to strict liability in cases involving injuries caused by dogs.  Although Solesky was neither a big departure from the applicable law at the time nor an adoption of the alternative, and more prevalent, view in other jurisdictions, the Maryland legislature eventually abrogated its holding entirely.  As a result, the current applicable doctrine is a collage of different approaches and it is difficult to see how it protects victims of dog attacks more than they were protected before Solesky.  This article reviews the tort law doctrines that operate to manage the costs of injuries caused by dogs and discusses the consequences of the approval of the new statute in Maryland.  It concludes that instead of reverting back to the common law predating Solesky, a more careful balancing of the interests involved should have resulted in either adopting the prevalent view in the majority of jurisdictions or in an understanding of how Solesky actually advanced a better public policy than the common law it modified.

--CJR

July 7, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Two by Keating

Greg Keating (USC) has posted two pieces to SSRN.  First, When Is Emotional Distress Harm?.  The abstract provides:

In 1968, the California Supreme Court decided Dillon v. Legg, to this day the most famous American negligent infliction of emotional distress (NIED) case. In a nutshell, Dillon ruled that, henceforth, the scope of liability for negligent infliction of emotional harm would be governed by the same principle of reasonable foreseeability which governs the scope of liability for the infliction of physical harm. In retrospect, Dillon brought to a close an important period of American negligence law. Early in the twentieth century, in his celebrated MacPherson and Palsgraf decisions, Benjamin Cardozo made reasonable foreseeability the cornerstone of both duty and scope of liability (proximate cause). In extending the principle of reasonable foreseeability to cover emotional distress as well as physical harm, Dillon was fulfilling the premise and promise of Cardozo’s great decisions. Yet within twenty years, it became clear to the very same court that, although reasonable foreseeability sets reasonable boundaries to liability for physical harm, it licenses too much liability for emotional distress. In an ironic development, the principle of reasonable foreseeability embraced by Dillon v. Legg was recast as an arbitrary rule in Thing v. LaChusa. Ever since, courts and commentators have struggled to articulate principled boundaries for liability for NIED.

For the most part, courts have rested on the unsatisfying principle that liability must have some limit and pretty much any limit will do. The conventional wisdom is that this kind of arbitrary limitation is unavoidable. This chapter, prepared for the Obligations VII conference on Challenging Orthodoxy in Private Law, argues that progress may be made toward articulating principled boundaries for emotional injury by pursuing two paths. The first is taxonomical. NIED is about scope of liability; it is properly understood as a matter of proximate cause, not duty. The duty breached in Dillon v. Legg, for example, was the long-established duty to exercise reasonable care when driving an automobile. The question before the court was whether liability for breach of that duty extended to persons who foreseeably suffered severe emotional distress. What is true of this particular case is true generally: NIED does not ground new duties of care, it extends liability for breaches of preexisting, independently recognized, duties of care. This itself places boundaries on liability. The second path toward articulating principled boundaries on NIED liability is to inquire into the concept of harm and ask just when emotional distress counts as harm. Liability for negligence is, at its core, liability for physical harm and physical harm has long been understood in the law of negligence to mean physical impairment. Physical impairment, for its part, is impairment of normal physical capacities.

There is progress to be made in discrimination among instances of emotional distress by extending this idea of impairment to emotional injuries. Some emotional harms are impairments; to suffer them is to be left with impaired psychological capacities. Childhood sexual abuse, for example, characteristically leaves its victims with impaired capacities for trust. The death of one’s small child — the harm at issue in Dillon — is a harder case, but it seems intuitively correct to say that the death of a child often impairs the life of the parent in a profound way. Parents who witness the deaths of their children are often “never the same.” Part of the parent dies with the child, because the child’s life represents such a deep and irreplaceable investment of the parent’s agency. By asking when and why emotional suffering is not transient distress but enduring impairment it may be possible to make progress in limiting NIED liability in a principled, non-arbitrary manner.

Second, Strict Liability Wrongs; the abstract provides:

Strict liability is an orphan among moral theorists of torts. They wish either to expunge it from the law of torts entirely, or to assimilate it to negligence liability. This chapter argues that strict liability torts are genuine wrongs. They involve violations of rights, and they delineate two distinctive domains of wrongful conduct. One domain — the territory of “harm-based” strict liabilities — involves the distinctive wrong of harming-without-repairing. The other domain — the territory of “sovereignty torts” — involves the distinctive wrong of violating core autonomy rights which confer on persons fundamental powers of control over their selves and their property.

--CJR

July 3, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

The Evolution of Asbestos Litigation at Tulane

The Tulane Law Review recently hosted "The Evolution of Asbestos Litigation:  Enduring Issues and the Administration of Trusts."  The articles are now available:

Edward F. Sherman, The Evolution of Asbestos Litigation, 88 Tul. L. Rev. 1021 (2014).

Georgene Vairo, Lessons Learned By the Reporter:  Is Disaggregation the Answer to the Asbestos Mess?, 88 Tul. L. Rev. 1039 (2014).

Lester Brickman, Fraud and Abuse in Mesothelioma Litigation, 88 Tul. L. Rev. 1071 (2014).

Joseph Sanders, The “Every Exposure” Cases and the Beginning of the Asbestos Endgame, 88 Tul. L. Rev. 1153 (2014).

Peggy L. Ableman, A Case Study From a Judicial Perspective:  How Fairness and Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims, 88 Tul. L. Rev. 1185 (2014).

Anita Bernstein, Gender in Asbestos Law: Cui Bono? Cui Pacat?, 88 Tul. L. Rev. 11211 (2014).

--CJR

July 1, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Articles from Perspectives on Mass Tort Litigation, Part II

The second set of articles from the April 2013 symposium at Widener, Perspectives on Mass Tort Litigation, are now available.

Christopher J. Robinette, Introduction, Part II Download Robinette Intro 2 - Ready for Pub. 6.21.14

Aaron Twerski & Lior Sapir, Sufficiency of the Evidence Does Not Meet the Daubert Standards:  A Critique of the Green-Sanders Proposal Download Twerski - Ready for Pub. 6.17.14

Michael D. Green & Joseph Sanders, In Defense of Sufficiency:  A Reply to Professor Twerski and Mr. Sapir Download Green - Ready for Pub. 6.18.14

William P. Shelley, Jacob C. Cohn & Joseph A. Arnold, Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update  Download Shelley - Ready for Pub. 6.19.2014 

Bruce Mattock, Andrew Sackett & Jason Shipp, Clearing Up the False Premises Underlying the Push for Asbestos Bankruptcy Trust "Transparency" Download Mattock - Ready for Pub. 6.18.14

Scott B. Cooper & Lara Antonuk, The Royal Nonesuch:  How Tort Reformers Are Pulling One Over on Pennsylvania Download Cooper & Antonuk - Ready for Pub. 6.18.14

Congratulations to the Widener Law Journal for two great issues.

--CJR

July 1, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Geistfeld on the Connection between Tort and Regulation

Mark Geistfeld (NYU) has posted to SSRN The Tort Entitlement to Physical Security as the Distributive Basis for Environmental, Health, and Safety Regulations.  The abstract provides:

In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance.  For example, different specifications of the entitlement can produce substantially different measures of cost that fundamentally alter the type of safety regulations required by cost-benefit analysis, even for ordinary cases involving low risks.  Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement to physical security in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation, thereby enabling federal regulatory agencies to conduct cost-benefit analyses that account for matters of distributive equity as required by Executive Order.  When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system.

--CJR

June 30, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2014

JTL: Tribute to Jeffrey O'Connell

Volume 6 of the Journal of Tort Law will contain a tribute to Jeffrey O'Connell, who died in January of 2013.  Contributors are:  Kenneth Abraham (Virginia), Nora Engstrom (Stanford), Mark Geistfeld (NYU), Bob Rabin (Stanford), Adam Scales (Rutgers-Camden), Tony Sebok (Cardozo), Zoe Sinel (Western Ontario), Ted White (Virginia), and me.  John Goldberg graciously arranged the issue, which will appear in spring 2015.

--CJR

June 17, 2014 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)