Monday, September 25, 2017
Steve Sugarman has posted to SSRN Restating the Tort of Battery. The abstract provides:
This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would a) do away with complex and unneeded doctrinal details now contained within battery law, b) pave the way to a sensible regime of comparative fault for all such physical injuries, c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.
Friday, September 22, 2017
Nadia Sawicki has posted to SSRN Choosing Malpractice: A New Narrative for Limiting Physician Liability. The abstract provides:
Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to contractually modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases – dealing with experimental medical treatment and Jehovah’s Witness blood refusals – lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.
Thursday, September 21, 2017
Steve Sugarman has posted to SSRN Torts and Guns. This piece is an expansion of his remarks at last year's AALS Torts Section panel and will appear in volume 10:1 of the Journal of Tort Law. The abstract provides:
When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCCA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.
Tuesday, September 19, 2017
Mark Geistfeld has posted to SSRN Protecting Confidential Information Entrusted to Others in Business Transactions: Data Breaches, Identity Theft, and Tort Liability. The abstract provides:
Tort litigation over data breaches — defined here as the theft of one’s confidential information entrusted to another in a business transaction — most commonly involves the negligence cause of action. These claims turn on a number of issues that require searching analysis, including the manner in which the economic loss rule affects the tort duty, the relation between the negligence standard of care and strict liability, and the appropriate forms of compensable loss. Substantive analysis of these issues shows that they all can be resolved in favor of the negligence claim, which in turn justifies a rule of strict liability. The economic loss rule does not provide a substantive rationale for barring tort claims because customers do not have the information necessary to adequately protect their interests by contracting. Moreover, the common-law tort duty can be independently justified by the legislative policy decisions embodied in statutes that regulate data breaches. To prove a breach of the duty to exercise reasonable care, the victims of identity theft will often face considerable evidentiary difficulties stemming either from the complexity of data-security systems or the unreliability of other relevant evidence involving the conduct of defendant’s employees. For reasons recognized by tort law in analogous contexts, the evidentiary difficulties of proving negligence can justify a rule of strict liability for enforcing the tort duty to exercise reasonable care. Finally, the important forms of damages caused by identity theft — the cost of credit-monitoring services and the like, unauthorized charges, and any significant loss of time and emotional distress — are all compensable as a matter of basic tort principles. Strict tort liability in these cases ultimately finds justification in the important public policy of maintaining the integrity of market transactions.
Wednesday, September 13, 2017
Issue 2017:2 of the Journal of Tort Law is devoted to a symposium on the Restatement of Intentional Torts to Persons. Authors include Anita Bernstein, Ellie Bublick, Martha Chamallas, Nancy Moore, Steve Sugarman, and Richard Wright. The Reporters, Ken Simons and Jonathan Cardi, will draft a response. Mark Geistfeld's contribution to the issue, Conceptualizing the Intentional Torts, has just been posted to SSRN. The abstract provides:
According to the most recent draft of the Restatement (Third) of Torts: Intentional Torts to Persons, the intentional torts protect the rightholder’s interests differently from negligence-based rules and strict liability, placing them into a distinct substantive category. This conceptualization, however, does not provide courts with adequate guidance on how to formulate the element of intent. Different formulations can protect the rightholder’s interests differently from negligence and strict liability, so something else must determine the appropriate way to formulate the element of intent.
The draft Restatement’s reasoning can be easily extended to provide a more useful conceptualization of the intentional torts. The practice of tort law involves the enforcement of behavioral norms, and so the substantive categories of tort law should correspond to normatively distinguishable categories of behavior. For tort purposes, three different paradigmatic forms of social behavior are relevant: aggressive interactions; interactions of mutual advantage; and the remaining nonaggressive, risk-creating interactions that are not motivated by an expectation of mutual benefit. Within this normative framework, the category of intentional torts is defined by aggressive interactions, which involve intentional harms that are normatively different from accidental harms. The intentional torts accordingly protect different interests in a distinctive manner as per the rationale in the draft Restatement.
This normative framework straightforwardly explains a number of established rules while also resolving two questions of intent that have vexed courts and commentators. Difficult issues of intent involve hard questions about how the conduct is best categorized for tort purposes. Once the categories have been conceptualized in behavioral terms, the element of intent has a clear substantive purpose: it determines whether or not an interaction is aggressive and properly governed by the intentional torts.
Monday, September 11, 2017
Hanoch Dagan & Roy Kreitner have posted to SSRN The Bureaucrats of Private Law. The abstract provides:
Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory bureaucracies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this collectivist mold, but not all. A significant subset of the regulatory practice deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people. This Essay focuses on these private law bureaucracies, which regulatory theory marginalizes or neglects.
Our mission is threefold. Descriptively, we show that many agencies are indeed best understood as devices that supplement or even supplant the role of courts in addressing horizontal, rather than vertical or collectivist, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal interactions in core social settings, such as the workplace or the marketplace.
Normatively, we argue that the seeming consensus among theorists of both private law and regulation, in which these tasks belong to judges, rather than administrators, is misguided. In many contexts – increasingly prevalent in contemporary society – agencies, rather than (or in addition to) courts, may well be the (or at least an additional) appropriate institution for the articulation, development, and vindication of our interpersonal rights.
Finally, jurisprudentially, we offer some initial steps towards a theory of private law bureaucracies. We demonstrate the regulatory implications – in both substance and form – of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction and advance a preliminary account of the regulatory toolkit appropriate to this horizontal task.
Friday, September 8, 2017
Aaron Twerski and Jon Shane have posted to SSRN Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls. The abstract provides:
Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard for reasonable policing. Most courts place heavy emphasis on the foreseeability by the mall management of the likelihood of criminal activity to take place on the grounds of the mall. In doing so they rely on the testimony of security experts who intuit as to the adequacy of the staffing. This article challenges the case law on several grounds. First, experts fail to utilize objective data as to the workload of security officers on the mall. The article will demonstrate that such data is available and provides an objective measure as to adequate staffing. Second, foreseeability of crime is too uncertain a measure as to the adequacy of staffing. The question of how much foreseeability is sufficient to trigger a duty of security has bedeviled the courts. Third, courts have struggled to determine whether better security would have avoided harm to a particular crime victim. Thus, even if security is found to be inadequate it is often impossible for plaintiffs to prove causation. This article argues that once a court, based on objective data, sets the standard of reasonable care that the burden of proof that additional security would not have averted the crime to the victim should shift to the defendant management of the mall.
Tuesday, September 5, 2017
Foreword: Tort Law as Regulatory Tool
Torts and Guns
Sugarman, Stephen D.
Any Weapon to Hand? An Essay on Gun Regulation and the Limits of Insurance
Scales, Adam F.
Products Liability As Enterprise Liability
Keating, Gregory C.
The Prosser Letters: Scholar as Dean
Robinette, Christopher J. / Graham, Kyle
Wednesday, August 30, 2017
James Goudkamp & Eleni Katsampouka have posted to SSRN Punitive Damages: Perception and Reality. The abstract provides:
Compensatory damages are awarded to compensate the claimant for loss suffered. By contrast, punitive damages are awarded in order to punish the defendant for his or her contumelious disregard of the claimant’s rights and to deter the defendant and others like him or her from acting similarly in the future. This article summarises the results of an investigation into punitive damages (see ‘An Empirical Study of Punitive Damages’, James Goudkamp and Eleni Katsampouka (2018) Oxford Journal of Legal Studies (forthcoming)). The study, which is the first of its kind in the UK, uncovers important evidence regarding punitive damages. This evidence comports with certain widely held views regarding punitive damages and casts doubt on others.
Tuesday, August 29, 2017
Tony Sebok has posted to SSRN Unmatured Attorneys' Fees and Capital Formation in Legal Markets. The abstract provides:
Attorneys in the United States are under increasing pressure to change and adopt practices commonly found in the world of finance and business. Over the past thirty years the bar and legal academics have debated what to do; the focus of this debate has been over changes to MRPC 5.4 to allow partnerships between attorneys and non-lawyers or partnerships owned by non-lawyer shareholders.
One of the reasons attorneys are debating changes in Rule 5.4 is that the practice of law depends on capital, and the old methods for raising capital are no longer sufficient. Rather than raise capital from non-lawyers by partnering with them or selling equity to them, I recommend that attorneys look to their own fees as a source of capital.
I argue that there is confusion among state bar ethics committees and some ethics commentators about whether the sale of future, or unmatured, fees is unethical. The argument that lawyers may not sell unmatured fees is based on the claim that it would be fee-splitting. I argue that those who think that the sale of unmatured fees is fee-splitting are relying on a theory of Rule 5.4 called the Direct Relation Test, which takes as its premise that it is unethical for an attorney to allow a non-lawyer to invest in her productive capacities with the aim of earning a profit. I argue that the Direct Relation Test is incoherent, and cannot be consistently maintained in a system, like ours, that allows attorneys to factor their earned fees. I also argue that the Direct Relation Test is a deontological principle that lacks normative appeal.
I conclude that ethics committees, courts, and legal ethicists should reject the Direct Relation Test and recognize that the sale of unmatured fees is not fee-splitting.
Monday, August 28, 2017
Victor Goldberg has posted to SSRN The MacPherson-Henningsen Puzzle. The abstract provides:
In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?
Monday, August 21, 2017
Matthew Dyson has posted to SSRN What Does Risk-Reasoning Do in Tort Law?. The abstract provides:
This chapter is a draft of the conclusion to an edited collection on how private law (particularly tort law) conceives of risk, generates liability from risk and seeks to use liability to control risk. It is made up for 18 substantive chapters, two each from England, France, Sweden, Italy, Spain, the Netherlands, Chile, South Africa and Brazil. The volume will be published later in 2017 by Intersentia. This chapter sets out the main findings from the volume, analyses them comparatively, and shows what risk-reasoning does within tort law.
Wednesday, August 16, 2017
Cathy Sharkey has posted to SSRN Can Data Breach Claims Survive the Economic Loss Rule?. The abstract provides:
Data security breach cases are fertile ground to explore the impact of the economic loss rule and to challenge the conceptual underpinnings of this judge-made doctrine. The extent to which the economic loss rule serves as a formidable barrier to credit card data security breach cases depends upon the underlying state law; in particular, whether a state adopts the majority or minority position on the rule, as well as how it defines various exceptions thereto. Upon closer examination, it becomes clear that the rule operates in a fundamentally distinct manner in the “stranger paradigm” as compared to the “contracting parties paradigm.” What makes the credit card data security breach cases so vexing is that they often straddle the stranger/contracting parties paradigms. The credit card data breach cases can be reframed in a coherent way that defers to contractual allocation of risk and responsibility but nonetheless allows tort liability to be deployed when needed to ensure the internalization of third-party costs. Seen from a broader regulatory perspective — especially taking into account state statutory provisions relating to enforcement of private industry standards in the credit card arena — the economic loss rule functions as a boundary-policing doctrine between tort and regulation as alternative mechanisms to regulate private parties. Moreover, as a more robust third-party liability insurance market emerges in response to a greater threat of tort liability, insurers will engage in further risk management, exerting more potent regulatory control.
Wednesday, August 9, 2017
Southwestern Law School is hosting a symposium on January 26, 2018 entitled "Fake News and Weaponized Defamation Global Perspectives". Abstract are due on September 25, 2017 and final papers are due January 5, 2018. Information is available here: Download Call for Papers - email (3)
Monday, August 7, 2017
Bob Rabin has posted to SSRN Perspectives on Privacy, Data Security and Tort Law. The abstract provides:
The continuing problems of data breaches, data misuse, and the consequent failure of current laws to adequately deal with these problems is widely acknowledged. In this article, I provide an overview of the regulatory enforcement and information disclosure strategies for addressing the problem before turning to the main theme of the paper: An assessment of the pathways available through tort remedies.
Friday, August 4, 2017
James Henderson has posted to SSRN The Impropriety of Punitive Damages in Mass Torts. The abstract provides:
Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.
Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.
Wednesday, August 2, 2017
Martha Chamallas and Lucinda Finley are co-editors of the torts volume of Cambridge University Press's Feminist Judgments series. The series involves rewriting legal opinions as if the judge were writing from a feminist perspective. They are seeking authors for both rewritten opinions and commentaries on key cases regarding most facets of tort law. The editors have identified approximately 16 relevant cases for discussion. The deadline to express interest is August 25th. Deadlines for the final product are in March 2018 for the opinions and April 2018 for the commentaries. More information is available here: Download Call for Authors Feminist Torts Judgments
Thursday, July 27, 2017
Douglas Kysar has posted to SSRN The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism. The abstract provides:
Against the backdrop of contemporary climate change lawsuits, this article presents preliminary research findings regarding a remarkable and underappreciated moment in the common law pre-history of modern environmental, health, and safety regulation. The findings complicate the conventional academic story about the limited capabilities of tort law and its inevitable displacement by more institutionally robust and sophisticated forms of regulation. Part I offers a brief introduction, followed in Part II by a review of existing academic literature on the pros and cons of utilizing tort law as a regulatory device. As will be seen, the consensus view seems to be that tort law is a clumsy and imperfect mechanism for addressing most environmental, health, and safety risks. Part III argues that the debate over tort law’s potential as a risk regulation mechanism ignores the distinctively private law history and character of that body of law, essentially asking tort to serve a purpose for which it was neither intended nor designed. Part IV then presents a case study of nuisance litigation in which the tort system achieves a remarkable and underappreciated risk regulation effect precisely by focusing narrowly on the traditional task of adjudicating alleged wrongs between private parties. Part V concludes.
Friday, July 21, 2017
Kyle Graham and I have posted to SSRN The Prosser Letters: Scholar as Dean. The abstract provides:
Examining a previously unexplored trove of letters, this article sheds new light on the thinking and work of William L. Prosser, the past century’s leading torts scholar. In these letters to family written while dean of the University of California, Berkeley School of Law, Prosser candidly describes his approach to scholarship; the development of his casebook, the second edition of Prosser on Torts, and some of his most well-known and influential articles. Moreover, Prosser provides his often-cynical impressions of the legal process; his views of his peers at Berkeley and at other institutions; and his work as dean. The letters also demonstrate some of Prosser’s limitations, including his craving for attention, a sometimes petty personality, and racial and ethnic biases. In all, the letters capture a scholar at the zenith of professional accomplishment in his field, who nevertheless showed signs of the insecurity that would later trigger his resignation from the Berkeley deanship and retreat from the forefront of torts scholarship.
Thursday, July 20, 2017
Jill Lens has posted two pieces to SSRN. First, An Undetectable Constitutional Violation; the abstract provides;
In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.
Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin to try to apply Philip Morris’s reprehensibility-punishment distinction. The Article then both criticizes the protection most lower courts have used—vague limiting instructions—and suggests alternative protections. A new rule governing the admissibility of nonparty harm should be used because of the constitutional implications of the admission of the evidence. Courts should also include explanations within their limiting instructions and aggressively review awards for possible Philip Morris violations despite the use of limiting instructions.
Second, Justice Thomas, Civil Asset Forfeitures, and Punitive Damages; the abstract provides:
For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.
This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction.
The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.