Thursday, September 3, 2015
Howie Erichson has posted to SSRN Judge Jack Weinstein and the Allure of Antiproceduralism. The abstract provides:
In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor of substantive justice, but technicalities are in the eye of the beholder, and this Article asks what is lost when a judge steers around procedural constraints.
Wednesday, September 2, 2015
As part of the Clifford Symposium, John Goldberg has written a piece on Judge Weinstein, for whom he clerked. Entitled Judging Responsibility, Responsible Judging, the abstract provides:
This essay, published in the Twentieth Annual Clifford Symposium, sketches two ways in which Judge Jack Weinstein’s judicial performance raises issues of responsibility. First, it considers how he has deployed responsibility concepts that are central to tort law. Unsurprisingly, it concludes that, in his efforts to do “equity” through mass tort litigation, he has stretched these concepts quite far. This conclusion raises a second set of questions about responsibility—namely, questions about the role responsibilities of federal district court judges. As to these, the essay contends that Judge Weinstein’s tort decisions are consistent with a familiar and plausible account of judicial decision-making. It also notes ways in which he has been especially responsible in his handling of claims and claimants.
Tuesday, September 1, 2015
The AALS Section on Insurance Law will hold a program on Insurance and Litigation during the AALS 2016 Annual Meeting in New York. The program is scheduled for Sunday, January 9, 2016, from 10:30 AM to 12:15 PM. The program will feature a panel of leading research on the relationships between insurance and litigation. For a longer description of the topic, see below
Submissions: To be considered, a draft paper or proposal must be submitted by email to Ezra Friedman, Program Chair, at firstname.lastname@example.org. A proposal must be comprehensive enough to allow for a meaningful evaluation of the proposed paper. Submissions must be in Micorsoft Word or PDF format.
Deadline: The deadline for submissions is Friday, October 9. Decisions will be communicated by Friday, October 23.
Eligibility: Full-time faculty members of AALS member law schools are eligible to submit. Faculty at fee-paid law schools; foreign, visiting and adjunct faculty members; graduate students; fellows; and non-law school faculty are not eligible to submit. Papers may already be accepted for publication, provided that the paper will not be published before the AALS meeting.
Expenses: The panelist selected through this Call for Papers will be responsible for paying his or her own annual meeting registration fee and travel expenses.
Inquiries: Inquiries about this Call for Papers may be submitted to Ezra Friedman, Northwestern University, School of Law, email@example.com, (312) 503-0230.
“Insurance and Litigation, Risk and Incentives”
Appreciating the role that insurers and insurance plays in litigation is fundamental to understanding both insurance markets and the legal system. Insurers participate in litigation directly as parties to conflicts or as agents of their policyholders, and indirectly by affecting the financial stakes of the parties. Third party litigation finance firms act as de facto insurers of litigation outcomes. This session will address various subjects regarding the relationship between insurance, risk, and litigation. Possible questions include: How can law makers best address the conflicts of interest between insurers and policyholders in litigation? How does the prospect of litigation between the insurer and policyholder affect the drafting and performance of insurance contracts? What effects do the prospect of litigation have on the value and cost of providing Insurance? What can understanding insurance law and regulation tell us about how to regulate litigation finance?
Tuesday, August 25, 2015
This is a hot topic. Judge Weinstein issued a ruling in late July and Tony Sebok blogged about the decision at New Private Law. Now, in recent postings to SSRN, Ronen Avraham and Alberto Bernabe take up the topic.
Avraham's piece, Is Race- and Sex-Based Targeting Efficient? A Look at Tort Law's Discriminatory Damage Awards, has the following abstract:
Under traditional law and economics analysis, it is deemed efficient to target individuals and communities based on race and gender when doing so results in the lowest tort liability for a rational actor. This results in the targeting of low income minorities and women - a fact which law and scholars economics would stamp with analytical approval, but are likely embarrassed to admit. Surprisingly, the basis for this targeting is the seemingly neutral use of race- and gender-based statistical tables (for example life expectancy or worklife expectancy) which, when used in tort damage calculations, result in a large disparity between damages awarded to whites versus blacks, and men versus women. First, this paper provides a full account of courts' existing discriminatory practices, identifying both theoretical and actual examples of race and gender targeting. It then challenges the conventional wisdom that the use of race- and gender-based tables are justified on efficiency grounds, pointing out fatal flaws inherent in the tables, in how the tables are used in courts to calculate damages for individuals, and in the incentives they create. Under the status-quo, tort law’s remedial damage scheme both perpetuates existing racial and gender inequalities and creates ex-ante incentives for potential tortfeasers to engage in future discriminatory harm (discriminatory targeting) towards women and minorities. The paper then shows that similar discriminatory practices surprisingly and ironically exist in federal law such as the ADA and even Title VII. After discussing the legal and theoretical background, statistical shortcomings, and efficiency concerns associated with the use of race- and gender-based statistical tables, this paper proposes a feasible, low cost, and logical solution to save American courts as well as the law and economics movement from this great embarrassment, and push towards a more efficient, and fair tort law remedial system.
Bernabe's piece, Do Black Lives Matter?: Race as a Measure of Injury in Tort Law, has the following abstract:
Much of the current debate over race relations in the United States revolves around police brutality and legal injustice. However, prior to the events that made the phrase “black lives matter” the signature message of a protest movement against racism in the American justice system, the nation’s media was captivated briefly by another legal question: whether a child’s race should be used as a measure of injury to the child’s parents as part of a torts claim based on the “wrongful birth” of the child. Unfortunately, once the attention turned to the events that prompted the protests and the debate that has developed since, the discussion about whether someone’s racial identity could be used as a measure of injury faded.
Yet, the issues raised by the case are too interesting and important to be relegated to the background of the debate. The case not only offers the opportunity to discuss the issue of using race as an element in a tort law claim, it also poses interesting questions about the extent to which modern reproductive technologies change the way we think about injuries for purposes of tort law.
Obviously, there have been many wrongful birth and wrongful pregnancy cases in the past, but this one is different. Because the mother wanted to have a child and because the child was not born with a disability, the basis of the complaint is that the child’s race should be considered to be an injury to her and that the child’s existence should be considered to be an injury to the mother. If we are ready to recognize a claim in cases where the child is born with a condition that could have been avoided had the defendant not been negligent, should we also recognize a claim if the child turns out to have different physical traits than planned, or expected?
Martha Chamallas and Jenny Wriggins, who have focused on this topic for years, must be smiling.
Sunday, August 23, 2015
Robin West has posted to SSRN Gatsby and Tort. The abstract provides:
The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?
The first part of this piece discusses tort law during Gatsby’s decade -- the beginning of the “era of automobility” -- and explains tort law’s absence from the novel: Tort law is absent from The Great Gatsby, in part, because tort law itself was dysfunctional and could not provide meaningful access to the legal system. Tort victims of automobile accidents were largely unable to access legal avenues, and recovery was hindered by a host of rules, prominently the contributory negligence system. The piece then briefly describes a reform movement, led by progressive legal realists, to replace tort recovery for automobile accidents with a no-fault compensation scheme. One consequence of that movement, I suggest, was the loss of tort law’s traditional “moral center,” the idea of the law of torts as a “law of wrongs.” The second part of the piece then discusses the costs of this change, politically and conceptually, and briefly defends traditional “wrongs” and “justice-based” tort law against compensation-minded reforms. I conclude that while the moralistic tort law of Gatsby’s era expressed plenty of blame for tortfeasors, it failed to hold them accountable, thus contributing to the death of our understanding of the law of tort as a law of wrongs -- and only partly and fitfully replaced by compensation schemes.
(In writing my Prosser Letters piece in the spring, two legal historians, Ted White and Al Brophy, independently remarked that Prosser reminded them of Nick Carraway.)
Monday, August 17, 2015
George Conk has posted one of his older pieces to SSRN: Compared to What? Instructing the Jury on Product Defect Under the Products Liability Act and the Restatement (Third) of Torts: Products Liability. The abstract provides:
Products liability litigation relating to mechanical devices has centered on the concept of design defect, specifically, the unreasonable failure of a manufacturer to take advantage of current design capabilities that would reduce or even eliminate a product's potential dangers. The Restatement (Third) of Torts: Products Liability (Restatement (Third)), promulgated by the American Law Institute in 1997, places the focus of design-defect litigation on proof of the existence of an alternative, safer design for a product, which demonstrates that the product was not designed to be reasonably safe.
The Restatement rejects the long-dominant consumer expectations test of defect and asserts that the risk-utility analysis everywhere relied up must specify that the plaintiff prove as a fact that there was available a safer alternative design which, if omitted, renders the product not reasonably safe.
By concretizing the relevant design-defect considerations, we will be better able both to hold the designer to the ideal of prudence and to avoid the uncritical sympathy for the injured that courts have long seen as a danger of unclear limitations on liability. In case after case, courts uphold verdicts rooted in risk-utility proof and argument - on the balance of costs and benefits of improving the safety of a product's design - without inquiring closely into how to formulate the balance properly. The New Jersey Products Liability Act states that it is a complete defense if: "At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product."
Ken Simons (now at UC Irvine) has posted to SSRN Reluctant Pluralist: Moore on Negligence. The abstract provides:
Michael Moore has addressed the meaning and desirability of legal liability for negligence on several occasions. His early writings treat negligence as a consequentialist concept and as an appropriate basis for tort but not criminal liability. But in more recent writings, he is more pluralistic, recognizing that nonconsequentialist considerations play a proper role in tort negligence judgments, and tentatively endorsing negligence liability in criminal law as well. The evolution in his views is welcome. At the same time, neither Moore nor other scholars have yet provided a satisfactory account of this protean legal and moral concept. More attention should be paid to the questions whether negligence is a type of wrongdoing, a type of culpability, or both; and whether negligence differs from recklessness in kind or only in degree.
Wednesday, August 5, 2015
Joanna Schwartz has posted to SSRN How Governments Pay: Lawsuits, Budgets, and Police Reform. The abstract provides:
For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything towards settlements and judgments entered against them. But this finding begs another question — where does the money come from, if not from individual officers? The dominant view among those who have considered this question is that settlements and judgments are usually paid from jurisdictions’ general funds with no financial impact on the involved law enforcement agencies, and many have suggested that agencies would have greater financial incentives to improve behavior were they required to pay settlements and judgments from their budgets. But, beyond anecdotal information about the practices in a few large agencies, there has been no systematic inquiry into the source of funds used by governments to satisfy suits.
In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Through public records requests, interviews, and other sources, I have collected information about litigation budgeting practices in 100 law enforcement agencies across the country. Based on the practices in these 100 jurisdictions, I make two key findings. First, settlements and judgments are not always — or even usually — paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities. All told, half of the law enforcement agencies in my study financially contribute in some manner to the satisfaction of lawsuits brought against them. Second, having a department pay money out of its budget towards settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year towards settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage as a result of large payouts. These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role local government finance officials and insurers can and do play in efforts to promote risk management and accountability in policing.
Monday, August 3, 2015
Thursday, July 30, 2015
Bob Rabin has posted to SSRN Judge Jack Weinstein and the World of Tort: Institutional and Historical Perspectives. The abstract provides:
In this Article, I offer four representative illustrations of Judge Jack Weinstein’s creative efforts to recast traditional tort concepts in a fashion responsive, by his lights, to accident law claims that pressed against the boundaries of the conventional interpersonal tort law process. In the first of these cases, dealing with a cluster of blasting cap injuries to minors, Judge Weinstein addressed the puzzle of the indeterminate defendant. In the second, war veterans’ claims from Agent Orange exposure in Vietnam, he wrestled with indeterminacy of both defendants and plaintiffs. In the third, the handgun cases, the mass claims dimension so evident in Agent Orange was less salient than the public safety perspective that animated his doctrinal creativity. And finally, in the tobacco punitive damages class action, he returned to a concern for reaching closure in a seemingly intractable public health controversy that served as an underlying theme in Agent Orange, as well. Each of these cases, in its own way, served as a vehicle for Judge Weinstein to realign enterprise liability theory to give priority to risk spreading over risk allocation as an expression of his distinctive commitment to redress of injury victims. In a final section of this Article, I discuss how these judicial strategies mesh with Judge Weinstein’s published efforts in the academic sphere to articulate his vision of the role of tort law.
Thursday, July 16, 2015
Keith Hylton has posted to SSRN Information and Causation in Tort Law: Generalizing the Learned Hand Test for Causation Cases. The abstract provides:
This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of tort law.
Friday, July 10, 2015
Herb Kritzer & Neil Vidmar have posted to SSRN When the Lawyer Screws Up: A Portrait of Legal Malpractice Claims and Their Resolution. The abstract provides:
All professionals make mistakes and sometimes those mistakes harm the clients or patients. What happens when this occurs and the professional involved is a lawyer? Surprisingly, there is virtually no empirical research on legal malpractice. In contrast, there is an extensive empirical literature on medical malpractice and the legal handling of legal malpractice claims. This literature examines the frequency of medical malpractice claims, how they are handled, how they are resolved, and their impact on access to and cost of medical care. The absence of a similar literature concerning legal malpractice is at least somewhat surprising given that there are roughly equal numbers of private practice lawyers and patient care physicians in the United States.
In this paper we provide an empirical portrait of legal malpractice claims and their resolution. We draw on a wide range of data sources including reports published by the American Bar Association, reports from individual insurers, and data sets obtained from insurance regulators in Florida and Missouri. We examine a wide range of questions including the areas of practice producing large numbers of claims, the types of errors alleged in the claims, the practice settings and experience of the lawyers subject to the claims, the likelihood that claims are successful and the amounts paid in damages in successful claims and how the outcomes vary depending on factors such as the area of practice and the size of firm, and the frequency and outcomes of trials of legal malpractice cases including some comparisons to trials involving other types of professional malpractice.
A central finding of our analysis is that there are essentially two hemispheres of legal malpractice paralleling the two hemispheres of the bar identified by Heinz and Laumann in their study of the Chicago bar. In the personal services sector one finds mostly relatively small stakes cases often involving plaintiffs’ personal injury, real estate, family law, and collections and bankruptcy; much of the insurance coverage is provided by mutual insurers started by and/or affiliated with state bars. In the corporate sector stakes tend to be very large, and cases involve corporate matters, corporate litigation, and high stakes areas such as intellectual property and securities; insurance is provided by either by specialized insurers or through brokers who put assemble a group of insurers to cover a large law firm.
This is a related piece to work the pair released earlier this year.
Wednesday, July 8, 2015
Tuesday, July 7, 2015
Tuesday, June 30, 2015
Nora Freeman Engstrom has posted to SSRN A Dose of Reality for Specialized Courts: Lessons from the VICP. The abstact provides:
The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?
The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.
Monday, June 29, 2015
Leslie Kendrick has posted to SSRN Nonsense on Sidewalks: Content Discrimination in McCullen v. Coakley. The abstract provides:
What does it mean to say that the government may not “restrict expression because of its message, its ideas, its subject matter, or its content?” Whatever it means, how would one determine when it has occurred? First Amendment law has wrestled with these questions for more than forty years, and if McCullen v. Coakley is a reliable indicator, the debates have only become more fractious. At several points, the Justices viewed a single phenomenon in strikingly different terms. These conflicts demonstrate both the potential benefits of clear rules in the content discrimination context and their lurking futility.
Friday, June 5, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at firstname.lastname@example.org. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Please feel free to contact me if you have any questions.
Thursday, June 4, 2015
Ted White has posted to SSRN The Emergence and Development of a Law of Torts. The abstract provides:
This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.
Wednesday, June 3, 2015
Alberto Bernabe has published Setting Parental Controls: Do Parents Have a Duty to Supervise Their Children's Use of the Internet?. He answers "no" in a comment on last year's Georgia appellate decision in Boston v. Athearn (prior coverage here).
Tuesday, June 2, 2015
Heidi Hurd has posted to SSRN The Innocence of Negligence. The abstract provides:
This article defends the claim that negligence is not blameworthy, and that the system of accident law that dominates Anglo-American law is thus not, in fact, fault-based. Recognizing that this claim contradicts hundreds of years of case law and jurisprudential rhetoric, the article systematically examines five alternative bases upon which it might be tempting to predicate claims of fault in cases in which persons have inadvertently caused harm. On these accounts, we are entitled to blame, and therefore to transfer the costs of accidental injuries, to negligent actors because: (1) they deliberately chose to violate per se precautionary rules that exist to safeguard others from inadvertent injury, and in so doing they culpably engaged in objectively faulty conduct, even if they did not subjectively appreciate its risks; or, (2) they deliberately chose to do acts that they knew would make their later inadvertence to risks unjustifiably likely, and we can properly blame them for those prior culpable choices, even if we cannot blame them for the inadvertence that later attended their injurious actions; or (3) while they made no relevant choices with regard to the accidental injuries they caused, they possessed unexercised capacities, which if exercised, would have prompted them to choose a risk-free course of conduct; or, (4) they possessed defective motor skills, cognitive capacities, or volitional resources which were themselves morally blameworthy or which, if not themselves blameworthy, were causally significant to the accidental injury in ways that could have been prevented; or (5) they possessed defects of character which were themselves blameworthy, and which caused their failure to advert to the risks of their behavior, thus making such inadvertence blameworthy.
As I shall argue, none of these arguments succeed in grounding the claim that negligence is morally blameworthy. None thus provide a basis for thinking that negligence liability is fault-based. Absent any further account of how inadvertent injuries are culpably caused, tort law and tort theorists should confess that negligence liability is just another species of strict liability. Corrective justice theorists who are anxious to preserve the claim that tort law should be in the business of redressing culpable wrongs should thus either urge the doctrinal adoption of genuine culpability conditions or get on with the task of vindicating the morality of redistributing losses to those who have voluntarily caused them, however innocently.