Tuesday, August 21, 2018
Jill Wieber Lens has posted to SSRN Tort Law's Devaluation of Stillbirth. The abstract provides:
In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth. This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim. The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.
Friday, August 17, 2018
Keith Hylton has posted to SSRN Information Costs and the Civil Justice System. The abstract provides:
Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features of the real world and probes its implications for compliance with the law, efficiency of law, accuracy in adjudication, trial outcome statistics, and the evolution of legal standards. The model’s claims are applied to and tested against the relevant empirical and legal literature.
Tuesday, August 14, 2018
Tuesday, July 31, 2018
Jill Fraley has posted to SSRN Liability for Unintentional Nuisances. The abstract provides:
The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: “an actor is no longer liable for accidental interferences with the use and enjoyment of land.”
Nearly forty years later, textbooks tend to teach the Restatement approach, but the majority of courts have never adopted this switch in the intent requirement for nuisance. In a number of states, accidental interferences remain actionable under nuisance law. The old approach to nuisance is not dying away quietly. In fact, in the new millennium courts have often gone to some trouble to explain and emphasize their resistance—and for good reason. This article defends the positions of those courts and argues that the Restatement got it wrong.
While the Restatement was correct that there had been “confusion” in the case law, the confusion was not about the conduct versus the interest invaded, but rather the muddling of the law of negligence with the law of nuisance. This article argues that nuisance was historically unique in tort law, because of its special role in protecting property rights. In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Restatement’s change then diminished our rights to private property.
Robert Chesney & Danielle Keats Citron have posted to SSRN Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security. The abstract provides:
Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.
While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well.
Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.
Monday, July 30, 2018
Tom Baker & Charles Silver have posted to SSRN How Liability Insurers Protect Patients and Improve Safety. The abstract provides:
Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey like this one cannot resolve. But, as we show, insurers make serious efforts to reduce their losses by encouraging and helping health care providers to do better in at least six ways. (1) Insurers identify subpar providers in ways that provide the opportunity for other institutions to act. (2) Insurers provide incentives for providers by charging premiums that are based on risk and by refusing to insure providers who are too high risk. (3) Insurers accumulate data for root cause analysis. (4) Insurers conduct loss prevention inspections of medical facilities. (5) Insurers educate providers about legal oversight and steps that they can take to manage their risks. (6) Finally, insurers provide financial and human capital support to patient safety organizations.
Tuesday, July 24, 2018
Richards Lewis has posted to SSRN Strategies and Tactics in Litigating Personal Injury Claims: Tort Law in Action. The abstract provides:
This article reveals some of the tactics which lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered here to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.
Friday, July 6, 2018
Monday, July 2, 2018
Donal Nolan has posted two pieces to SSRN. First, Strict Products Liability for Design Defects. The abstract provides:
A case note discussing the decision of Hickinbottom J in Wilkes v DePuy International Ltd  EWHC 3096 (QB);  3 All ER 589, which is now the leading case on the application of the Consumer Protection Act 1987 in the case of an alleged design defect. It is argued in the note that the approach taken by Hickinbottom J to the issue of defectiveness should be seen as complementing or supplementing the guidance given in A v National Blood Authority  3 All ER 289, and that taken together with that earlier decision – and provided that due attention is paid to the significance of the standard/non-standard product distinction that the facts of the two cases encapsulate – the decision in Wilkes represents a solid foundation for future analysis of that issue under the strict product liability regime laid down by the 1987 Act.
Second, Rights, Damage, and Loss. The abstract provides:
This article is an exploration of the relationship between the concepts of rights, damage and loss. The focus of the analysis is on the law of negligence, though some of the claims have wider ramifications. The article is divided into three main parts, with each part centred around a different relationship: first, the relationship between rights and damage; second, the relationship between rights and loss; and third, the relationship between damage and loss. In each of these three parts, a separate, but related, claim is made: (1) that a concept of damage is a necessary component of a plausible rights-based conception of negligence law; (2) that a right not to suffer loss is conceptually impossible; and (3) that damage and loss are fundamentally different concepts.
Monday, June 25, 2018
Martha Chamallas has posted to SSRN Feminist Legal Theory and Tort Law. The abstract provides:
Tort law in the US has failed to provide adequate protection against gender-related harms that disproportionately affect women. Because of the imposition of doctrinal and other restrictions on recovery, there is no reliable means of tort compensation for victims of domestic violence, rape and sexual assault. Only a small number of intentional tort cases have been brought directly against offenders, mainly leaving the criminal law to deal the problem. Although more negligence suits have been brought against institutional defendants for failure to prevent sexual violence, the developing law has not yet had an appreciable effect on cases of domestic violence or acquaintance rape. In the realm of reproductive harms affecting pregnancy, childbirth, and fertility, tort protection has also been precarious, with claims of women and other plaintiffs relegated to the disfavored tort of negligent infliction of emotional distress. The chapter connects these recent developments to feminist theory.
Note: This is a draft chapter. The final version will be available in Research Handbook on Feminist Jurisprudence, edited by Robin West & Cynthia Bowman, forthcoming 2018, Edward Elgar Publishing Ltd.
Thursday, June 14, 2018
John Goldberg has posted to SSRN Benjamin Cardozo and the Death of the Common Law. The abstract provides:
Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.
Tuesday, June 12, 2018
The Reporters for R3: Torts: Intentional Torts to Persons, Ken Simons & Jonathan Cardi, respond to critiques from prominent torts scholars in a symposium published in the Journal of Tort Law. Entitled Restating the Intentional Torts to Persons: Seeing the Forest and the Trees, the abstract provides:
The five thoughtful, incisive articles by Professors Bernstein, Chamallas, Geistfeld, Moore, and Sugarman offer a breathtaking range of perspectives on the Restatement, Third of Torts: Intentional Torts to Persons (“ITR”). Some view tort law from the widest vantage point, inquiring whether this forest deserves its own appellation or should instead be assimilated to the rest of tort’s greenery. Some focus more on the trees–on the distinct doctrines that characterize the torts and defenses that ITR is restating. In this response, we engage with the participants at both levels.
Our response also addresses two fundamental questions–the role of a Restatement and the significance of the “intentional tort” category. First, ITR is a Restatement of tort law. It is not a model code of tort law, nor is it an academic article committed to a particular vision of the proper purposes and principles of tort law. We see our task, not as creating a grand theory from which all of intentional tort doctrine can be deduced, but as a bottom-up endeavor, accurately characterizing developments in the case law and then providing the most sensible and persuasive justifications for extant doctrine. At the same time, however, we strive to provide intellectual coherence to this body of law. Thus, we examine not only the holdings in narrow doctrinal categories, but also the consistency of those holdings with more general tort law principles.
Second, what is distinctive about the intentional torts to persons? How do they differ from torts of negligence or from other intentional torts? These questions have no simple answer, because most of the intentional torts to persons have very long historical roots, and because the common law process of reformulating doctrine has played a vital role in defining the scope of these torts in current American law. It is thus not at all surprising to find tensions and apparent inconsistencies between some current doctrines.
Nevertheless, we believe that the contemporary formulations of these torts are indeed justifiable in principle. First, these intentional torts sometimes reflect a hierarchy of fault or culpability. Purposely injuring someone is more culpable, ceteris paribus, than negligently causing the same injury. Second, these torts sometimes protect distinct interests, such as the interest in avoiding emotional harm or in freedom of movement, that for various policy reasons are not protected by liability rules if they are only negligently invaded. Third, the intentional torts do not simply identify species of conduct that reflect greater fault or culpability than negligence. Comparing intentional torts is sometimes akin to comparing apples and oranges, because these torts protect a varied set of interests or protect them in varying ways. Fourth, the intentional torts express a pluralistic set of values and principles. No single principle (such as welfare, autonomy, or freedom) fully explains all of these torts. And fifth, although these intentional torts contain some reasonableness criteria, for the most part they reject the reasonableness paradigm of negligence, and thus reject the more flexible, less structured criteria of liability that that paradigm engenders.
Friday, June 8, 2018
F. Patrick Hubbard & Evan Sobocinski have posted to SSRN Crashworthiness: The Collision of Sellers' Responsibility For Product Safety with Comparative Fault. The abstract provides:
Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals like efficient reduction of accident costs or (2) “persons” entitled to fair treatment in the same way as humans.
Relying on an analysis of doctrine, history, and policy, this Article argues (1) that for-profit corporations are tools, not persons with moral rights, and (2) because these corporations are not “moral persons”, the concern for efficient reduction of accident costs by internalizing the cost of injuries from product defects to corporations should prevail over a concern for “fairness” to these corporations in allocating accident costs. Therefore, because reducing manufacturers’ liability for crashworthiness also reduces the efficient internalization to manufacturers of the cost of their failure to provide cost-effective safety, the plaintiff’s role in causing the initial accident should be irrelevant to plaintiff’s claim for defective crashworthiness. This concern for internalization also supports the expansion of plaintiff’s rights in other areas of liability for defective vehicle design.
Monday, June 4, 2018
John Goldberg has posted to SSRN The Fiduciary Duty of Care. The abstract provides:
Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, I argue, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.
Friday, June 1, 2018
Ronen Perry has posted to SSRN Tort Law. The abstract provides:
This book chapter systematically analyzes the fundamental principles of Israeli tort law. Given space limits it focuses on core areas, and does not profess to be comprehensive. Part II discusses fault based liability—intentional torts, negligence, and presumptions of negligence. Part III examines strict liability, including the special regimes pertaining to road accidents, defective products, and defamation, and the general tort of breach of statutory duty. Part IV discusses general defenses—particularly those deriving from the plaintiff’s fault or consent, and the special defenses afforded to the state, public authorities, and civil servants. Part V explains how the bilateral wrongdoer-victim model has been extended by allowing claims against or by third parties. Part VI examines the available remedies.
Tuesday, May 29, 2018
John Goldberg & Ben Zipursky have posted to SSRN From Riggs v. Palmer to Shelley v. Kraemer: The Continuing Significance of the Law-Equity Distinction. The abstract provides:
This chapter begins with a sharp distinction between two kinds of judicial authority — the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.
Tuesday, May 15, 2018
Tuesday, May 8, 2018
Mark Geistfeld has posted to SSRN Cost-Benefit Analysis Outside of Welfarism. The abstract provides:
Welfarism is the principle that the goodness of a social state is an increasing function of individual welfare and does not depend on anything else. As Gregory Keating convincingly argues in the lead article for this symposium, welfarism cannot account for important normative differences among different types of welfare losses or costs. Welfarism entails that all welfare losses and gains — regardless of their source — are to be rendered fungible and then compared within a cost-benefit analysis (CBA) of the welfare changes. According to Keating, liberal egalitarian principles such as equal freedom or self-determination normatively distinguish bodily injuries from harms to liberty and economic interests. Bodily integrity and related forms of security are necessary conditions for the meaningful exercise of liberty, and that normative difference must be fairly accounted for by legal standards that govern significant risks threatening human health and safety. Hence Keating concludes that liberal egalitarian principles rule out CBA for setting such safety standards.
Despite its apparent logic, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of fairness is mistaken. Tort law shows why a legal system that protects the individual right to physical security can be usefully guided by the methodology of CBA and distributive economic analysis more generally. The governing principle of substantive equality determines the appropriate use of CBA, thereby framing the issues that can be usefully addressed by distributive economic analysis. Welfare does not have to be the master value in order to be relevant. As fully illustrated by the normative framework that Keating otherwise persuasively defends, CBA has an integral role outside of welfarism.
Monday, May 7, 2018
Mark Geistfeld has posted to SSRN The Regulatory Sweet Spot for Autonomous Vehicles. The abstract provides:
Although federal legislation governing highly automated vehicle (“HAV”) technology has yet to be enacted, developments so far strongly indicate that Congress will finally settle upon a framework that establishes the same roles for federal regulatory law and state tort law that now exist for conventional motor vehicles. Like the HAV bills pending in Congress, the National Traffic and Motor Vehicle Safety Act of 1966 contains both an express preemption provision along with a saving clause, which says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” These two provisions of the 1966 Act were harmonized by the U.S. Supreme Court in Geier v. American Honda Motor Company, which held that the saving clause embodies a legislative purpose to retain a meaningful role for tort law that can be displaced by federal regulations only as a matter of implied preemption. Because the pending federal HAV bills establish the same roles for federal regulatory law and state tort law that exist under the 1966 Act, the Court’s interpretation of that Act in Geier should extend to the HAV legislation.
As fully illustrated by the safety issue involving the reasonably safe performance of fully functioning autonomous vehicles, federal regulators meaningfully preserve state tort law when they base a federal safety regulation on the associated tort requirement enforced by the majority of states. By complying with this type of regulation, manufacturers would fully satisfy the associated tort obligations in these states, making regulatory compliance a complete defense. In the remaining minority of states, regulatory compliance would foreclose tort liability as a matter of implied preemption. This framework would uniformly regulate HAV technology across the national market while maximally preserving state tort law, thereby hitting the regulatory “sweet spot” that optimally solves the federalism problem.
Thursday, May 3, 2018