Friday, November 20, 2015
Benjamin Shmueli has posted to SSRN Legal Pluralism in Tort Theory: Balancing Instrumental Theories and Corrective Justice. The abstract provides:
Unified-monistic theories of tort law focus on a single goal of tort law, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to produce a balance between various goals of tort law by integrating several of the considerations underlying the different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. The present article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law, that is, within the framework of tort law theory.
Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by current mixed-pluralistic approaches are identified, and a new mixed-pluralistic approach is proposed which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories on the basis of the profile of the defendant and the nature of his tortious act, concurrently striking a balance between the various goals of tort law, as the situation warrants. Thus the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories — that is, distributive justice and optimal deterrence. Hence, it actually offers a balance between deontological theories, that are interest in the moral aspect, and utilitarian theories, that are more interested in the consequentialist outcome of the tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.
The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.
Wednesday, November 18, 2015
Stephen Sugarman has posted to SSRN Misusing the "No Duty" Doctrine in Torts Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions. The abstract provides:
Courts misuse the “no duty” doctrine in torts cases when they really mean there has been “no breach” of the duty of care. "No duty” should be reserved for cases where a defendant can escape tort liability even if the defendant caused harm through unreasonable conduct. Whether the risk was foreseen or not does not go to “duty.” It is relevant to “breach.” Relying on the “duty” doctrine takes cases away from juries, sometimes inappropriately. The Restatement (Third) of Torts gets this right.
Tuesday, November 17, 2015
Monday, November 9, 2015
Craig Allen (University of Washington) has posted to SSRN Investigations and Litigation Follow S.S. El Faro Tragedy. The abstract provides:
On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin. The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act. Events leading up to the tragedy will be given strict scrutiny in the coming months.
Friday, November 6, 2015
Antonin I. Pribetic (Himelfarb Proszanski) and Marc J. Randazza (Randazza Legal Group) have posted to SSRN 'War of the Words': Differing Canadian and American Approaches to Internet Defamation. The abstract provides:
This article provides a comparative analysis of differing approaches to Canadian and American internet defamation law. It begins with a discussion of the elements of a cause of action and available defences. It then canvasses jurisdiction and choice of law issues. Following a review of notice requirements and limitation periods, it provides the mechanics for unmasking anonymous defendants – John Doe applications, Norwich Pharmacal orders, injunctive relief. Finally, the paper outlines the key legal issues in the recognition and enforcement of Canadian and American cyberlibel judgments abroad, within the context of the libel tourism debate.
Friday, October 30, 2015
James Hackney has posted to SSRN Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History. The abstract provides:
This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge.
Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation.
The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants. Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality.
Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War.
Wednesday, October 28, 2015
Betsy Grey & Gary Marchant have posted to SSRN Biomarkers, Concussions, and the Duty of Care. The abstract provides:
The United States is currently facing a “concussion epidemic.” Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports. The epidemic imposes huge costs on society. At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage. Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms. Our knowledge of long term implications of repetitive concussions is also limited. Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state.
These scientific developments will have enormous implications for questions of risk and loss distribution in society. In particular, they portend a major reexamination of fundamental tort issues of duty, breach, causation, and fault allocation. Applying the developing research to the legal landscape will shed light on duties, as well as causal issues, and may help substantiate latent injury claims. This article examines those questions in the context of youth sports. The development of biomarkers will modify responsibilities for mitigating risks, screening and monitoring players, and the ability of the player to assume risks, as well as implicate privacy interests. In general, the development of these biomarkers will shift responsibilities in the diagnosis and management of concussions, as well as long term injuries, to those most directly involved in the player’s participation.
Friday, October 23, 2015
Thomas Eaton and Mike Wells have posted to SSRN Attorney's Fees, Nominal Damages, and Section 1983 Litigation. The abstract provides:
Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.
We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how the plaintiff’s constitutional rights were violated. These complexities render Farrar a poor case upon which to frame a rule regarding the relationship between damage awards and the proper calculation of attorney’s fees. Second, the “low award, low fee” approach is inconsistent with congressional intent. When Congress enacted § 1988 it emphasized the public benefit of vindicating constitutional rights and deterring constitutional violations. No less important, it recognized that the harms caused by constitutional wrongs often are not easily measured in terms of traditional monetary remedies – a circumstance that would discourage attorneys from taking on the representation of plaintiffs in this important set of cases. The low award/low fee approach contravenes these purposes because it effectively discourages the bringing of large numbers of highly meritorious cases involving the abridgement of constitutional rights. Indeed, the effect of this approach is perverse, because it blocks the recovery of meaningful attorney’s fees in the very set of low damages-serious constitutional wrong cases in which the need to incentivize the provision of legal services is most pressing.
Updated: Comments from George Conk.
Wednesday, October 21, 2015
Monday, October 19, 2015
Lynn Baker has posted to SSRN Alienability of Mass Tort Claims. The abstract provides:
This Article was prepared for the 19th Annual Clifford Symposium on Tort Law and Social Policy, "A Brave New World: The Changing Face of Litigation and Law Firm Finance." It seeks to contribute to the larger conversation about whether the United States should permit innovative forms of litigation financing for personal injury claims by examining a hypothetical regime with expanded alienability of mass tort personal injury claims. The Article focuses on this subset of claims because arguments in favor of complete alienability of personal injury claims are strongest with regard to these claims, and many of the staunchest critics of alternative litigation financing have expressed particular concern about its implications in the mass tort context. Thus, those not persuaded by the Article's analysis are unlikely to be persuaded by arguments for expanding the alienability of personal injury claims more generally.
The Article begins by describing the current state of affairs for both clients and their lawyers regarding the alienability and prosecution of mass tort personal injury claims. Despite various longstanding restrictions on the alienability of personal injury claims in the United States, substantial alienability of these claims is permitted and is engaged in by both clients and their attorneys. Part II discusses the aspects of the prosecution of mass tort claims in the United States that make these claims especially good candidates for complete alienability.
Part III discusses the benefits and costs to mass tort claimants and their attorneys of a hypothetical regime under which a claimant could sell her entire claim to a law firm, rather than retain the firm to serve as her counsel on a contingent fee basis. This Part also discusses various practical issues that would need to be resolved before a claim-sale option for mass tort personal injury claims could become a reality. Part IV goes on to analyze the normative concerns that underlie the existing constraints on claim sales. It reveals that none of these concerns is a persuasive grounds for prohibiting mass tort claimants from selling their claims to an attorney (or, perhaps, to any other potential purchaser).
It is not at all clear that a market for mass tort personal injury claims would flourish even if the existing ethical and legal constraints were relaxed. But that possibility does not diminish the importance of the Article's larger conclusion that there are no compelling normative or economic reasons to prohibit the complete alienability of mass tort personal injury claims in the United States.
Friday, October 16, 2015
Lydia Nussbaum has posted to SSRN A Crucible for Corrective Justice: Legislative Experiments with ADR to Reform the Medical Malpractice System. The abstract provides:
The American tort system has been the target of medical malpractice reform efforts for close to fifty years. Using different “crisis” narratives, reform advocates argue that litigation costs must be contained, that alternative methods for compensating injured patients should replace the tort system, and that healthcare delivery systems must change to reduce the incidence of patient injury. In pursuit of these different reform objectives, state legislatures enact laws that, for medical malpractice claims, change both substantive tort doctrine and procedure. For procedural reforms, policymakers turn repeatedly to ADR to fix perceived problems with the medical malpractice system, enacting statutes that mandate or direct parties to utilize specific ADR processes. This Article argues that ADR procedural interventions have substantive reform goals in the medical malpractice context. Ironically, these successive generations of medical malpractice ADR demonstrate a diminishing primacy of tort, rendering ADR not only an alternative process but also a venue for alternative models of corrective justice.
Wednesday, October 14, 2015
Richard Wright has posted to SSRN The New Old Efficiency Theories of Causation and Liability. The abstract provides:
For the last forty years, efficiency theorists have attempted to demonstrate that tort liability in general and negligence liability in particular can best/only be explained by the hypothesis that judges are trying to maximize aggregate social welfare. Thirty years ago I published a pair of articles criticizing these attempts, noting especially the efficiency theorists' inability to explain and justify the factual causation requirement in tort law. Nevertheless, the efficiency theorists have continued to make the same arguments. In this paper, I canvass the old arguments and their current restatements, including the attempts by some of the leading theorists to equate ex post analysis of actual causation with ex ante analysis of negligent conduct and attempts by others to explain the actual negligence liability rules. None of the rules proposed by the efficiency theorists is consistent with the practice of the courts, and none of them would promote efficient deterrence. Worse yet, the least descriptively plausible negligence liability rule proposed by the efficiency theorists is the one likely to be the least inefficient in actual practice, while the one assumed by most efficiency theorists will be the most inefficient. The fundamental problem with the efficiency theories is that they assume that the focus of law should be and is on the maximization of aggregate social welfare, rather than justice -- the promotion of everyone's equal external freedom in their interactions with others.
Friday, October 9, 2015
Nicholas McBride (Cambridge) has posted to SSRN The Humanity of Private Law--An Introduction. The abstract provides:
This is a draft of the introduction to a book I am working on called The Humanity of Private Law – which book will attempt to present a new account of private law as centred around the promotion of a particular vision of human flourishing.
As well as introducing the main claims of the book, this introduction also discusses: (1) economic and Kantian explanations of private law; (2) the explanations of tort law put forward by John Goldberg and Benjamin Zipursky, and by John Gardner; (3) the nature of corrective justice; (4) the nature of morality; (5) the justifiability of strict legal duties to succeed; (6) the difference between explanations and evaluations of private law; and (7) three different models of human flourishing.
Tuesday, October 6, 2015
Friday, October 2, 2015
2016 AALS Annual Meeting, Torts & Compensation Systems Section panel; New York City; Friday, January 8, 2016 from 1:30-3:15 (room to be announced)
On March 14, 1916, New York’s high court issued its decision in MacPherson v. Buick Motor Co. Writing for the court, Judge (later Justice) Benjamin Cardozo held that product manufacturers must take care to manufacture products that do not injure consumers. A century later, MacPherson is considered a landmark of tort law, as well as an exemplar of common law reasoning. It is credited with, among other things, contributing to the demise of laissez-faire thinking in American law and laying the groundwork for the modern doctrine of strict products liability. Yet what the decision accomplished, both as a matter of tort doctrine and jurisprudence, also remains controversial. On the occasion of MacPherson’s centenary, a panel of renowned scholars will examine the significance and influence of the case from multiple perspectives, including its influence of the evolution of the “risk society”, its reception and influence in the United Kingdom and Europe, and its place in tort theory and private law in general.
Papers will be presented by:
Anita Bernstein, Brooklyn Law School
John C. Goldberg, Harvard Law School & Benjamin C. Zipursky, Fordham University School of Law
Franz Werro, Georgetown University Law Center
John F. Witt, Yale Law School
Moderator: Anthony J. Sebok, Benjamin N. Cardozo School of Law
Papers will be published in a forthcoming issue of the Journal of Tort Law
Wednesday, September 30, 2015
Olga Voinarevich has published An Overview of the Grossly Inconsistent Definitions of "Gross Negligence" in American Jurisprudence. The abstract provides:
On one side of the spectrum, certain courts, such as New York, define gross negligence as conduct that borders intentional wrongdoing. On the other side of the spectrum, courts continue to recognize the degrees of negligence and differentiate between various degrees of care. Between these two approaches, there is inconsistency. For instance, some Illinois decisions equate gross negligence to recklessness, while others define it as nothing more than “very great negligence.” This Article concludes that the latter may be the proper standard relied upon by a majority of the recent decisions interpreting Illinois law, but advocates for a uniform definition to ease the burden on the parties attempting to define this imprecise term. Lastly, it provides a table of various definitions of “gross negligence” among all fifty states.
Monday, September 28, 2015
Cristina Carmody Tilley (Loyola Chicago) has posted to SSRN Tort, Speech, and the Dubious Alchemy of State Action. The abstract provides:
Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to include the entire body of private law that had produced the verdict. This approach aggrandized the Court’s authority to replace state generated common-law tort rules with its own quasi-statutory scheme that tied tort liability to the identity of the plaintiff. The less public the plaintiff, the less important the speech about him was presumed to be, and the greater the tort recourse for injuries that the speech caused. This Article suggests the Sullivan scheme is failing. As the boundaries of the “public” plaintiff category have expanded, tort liability for genuine speech injuries has grown elusive and private law is increasingly understood to signal that speakers have no duty of care towards those they discuss. Further, the Court’s desire to create more robust civic speech has been thwarted as the media has used its constitutional latitude to fixate on celebrity coverage at the expense of hard news. The Article concludes that a more modest state action approach in Sullivan could have prohibited the judicial enforcement of verdicts that imposed local community speech norms onto the nation without destabilizing centuries of dignitary tort law to dubious effect.
Friday, September 25, 2015
Ben Zipursky has posted to SSRN Reasonableness In and Out of Negligence Law. The abstract provides:
The word “reasonable” and its cognates figure prominently in innumerable areas of the law – from antitrust and contract law to administrative and constitutional law, from the common law of nuisance to an assortment of rules in statutes and regulations. While some thinkers have equated “reasonableness” with “rationality,” others have looked to “justifiability,” and others still have decided that “reasonableness” means virtually nothing at all, but serves the important function of allocating decisionmaking authority. The reality is that the term “reasonable” is both vague and ambiguous, and thus plays many different roles in the law. As with terms such as “rights” and “responsibility,” we will benefit from an analysis of “reasonable” that admits that different meanings take center stage in different legal contexts. This broad, ‘varietal’ analysis of reasonableness in the law comprises the first half of the article.
Turning to negligence law, the second half of the article offers a broad critique of the Hand formula conception of reasonableness. The article criticizes both the Posnerian/economic interpretation of the Hand formula and the more basic idea (in the Restatement (First)) that the “unreasonableness” of risk is the core of negligence law. The breach element of negligence law is focused first and foremost not on a level of risk but on a kind of person – a reasonably prudent person or a reasonable person. By attending closely to the role of reasonableness concepts in various aspects of negligence doctrine, and comparing them to reasonableness concepts in other parts of the law, the article constructs and defends a “moderation and mutuality” conception of reasonableness in negligence law.
Wednesday, September 23, 2015
Ronen Perry has posted to SSRN Getting Incentives Righter. The abstract provides:
This book review critically evaluates Robert Cooter & Ariel Porat's "Getting Incentives Right" (Princeton University Press, 2014). The review makes four general arguments, each addresses the book from a different angle.
First, the book provides universally applicable theoretical insights, but limits the critical evaluation of existing law, and the consequent reform proposals, to the United States. It thereby gives up accuracy, vigor, and audience. While this observation applies to the entire book, I provide several examples for the possible benefits of a comparative legal perspective.
Second, C&P seem to miss problematic incentives that implementing their proposals might entail. Specifically, some of the most innovative proposals for reform involve upward or downward adjustments of the scope of damages for the purpose of securing injurers' (and sometimes also victims') efficient conduct. I show that in adjusting damages to properly incentivize injurers, these reforms may also create adverse incentives that the book overlooks.
Third, the book is committed to classical economic analysis of law, and is therefore insensitive to empirical findings concerning human behavior. Behavioral studies give rise to serious doubts about the assumptions of classical economic analysis, and therefore pose challenges to most of its conclusions. I explain the general weaknesses of the book's methodology, and then demonstrate how some of its more concrete arguments could benefit from integrating existing behavioral research. In addition, I advocate empirical testing of C&P's theoretical arguments. Because the book aims to encourage desirable human behavior, the actual — empirically observed — impact of proposed legal reforms on human behavior is much more important than the theoretical prediction. Empirical testing obviously goes beyond the book's proclaimed goals, but without it all assumptions, conclusions, and recommendations remain inherently suspect.
Fourth, in many contexts C&P propose legal reforms which aim to provide more efficient deterrence, but complicate the law to such an extent that the additional administrative costs may exceed the benefit of the modification. If promoting social welfare is the ultimate goal of private law, the tradeoff between more efficient deterrence and greater administrative costs is highly important. Yet the book generally overlooks or understates these costs. I provide several examples for inefficiencies that might ensue.
Tuesday, September 15, 2015