TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, October 6, 2015

AALS Torts Section 2015 Newsletter

is here:  Download AALS Tort Section Newsletter 2015.  Thanks to my co-author Jessica Smeriglio.  We appreciate the assistance of Widener Commonwealth librarians Pat Fox and Ed Sonnenberg.

October 6, 2015 in Conferences, Scholarship, TortsProfs | Permalink | Comments (0)

Friday, October 2, 2015

AALS Torts Panel: "MacPherson at 100: Perspectives on its Influence and Meaning"

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

October 2, 2015 in Conferences, Scholarship | Permalink | Comments (0)

Wednesday, September 30, 2015

Voinarevich on Gross Negligence

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.

September 30, 2015 in Scholarship | Permalink | Comments (0)

Monday, September 28, 2015

Tilley on Defamation and State Action

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.

September 28, 2015 in Scholarship | Permalink | Comments (0)

Friday, September 25, 2015

Zipursky on Reasonableness

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.

(Via Solum/LTB)

September 25, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, September 23, 2015

Perry Reviews Cooter and Porat's "Getting Incentives Right"

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.

September 23, 2015 in Scholarship | Permalink | Comments (0)

Tuesday, September 15, 2015

JOTWELL Torts: Keating on Dorfman on Negligence

Monday, September 14, 2015

Gifford & Jones on Race and Tort Doctrine

Don Gifford and Brian Jones have posted to SSRN Keeping Cases from Black Juries:  An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law.  The abstract provides:

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law.  Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury.  We examine why some, mostly Southern states did not join this trend. 

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury.  We then conduct a multivariate analysis that finds strong correlations between a state’s JADI and two factors: (1) the percentage of African Americans in its largest cities, and (2) its history as a former slave-holding state. 

These findings suggest that some appellate courts, particularly those in the South, afraid that juries with substantial African-American representation would redistribute wealth or retaliate for grievances, struck preemptively to prevent cases from reaching them.  Surprisingly, we do not find a consistent association between a state’s JADI and either income inequality or its political leanings.  In other words, race and region, rather than economic class or politics, explain the failure to embrace pro-plaintiff changes that occurred elsewhere.

We suggest, therefore, that states that declined to discard antiquated anti-jury substantive doctrines between the mid-1960s and the mid-1980s should acknowledge that these precedents were tainted by their predecessors’ efforts to keep tort cases from African-American jurors and refuse to accord them deference.

I read an early draft of this piece and it is sure to attract attention.

September 14, 2015 in Scholarship | Permalink | Comments (0)

Friday, September 11, 2015

Logan on Tort Reform

David Logan has posted to SSRN Judges, Juries, and the Politics of Tort Reform.  The abstract provides:

The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.

This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”

Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.

The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.

September 11, 2015 in Scholarship | Permalink | Comments (0)

Thursday, September 3, 2015

Erichson on Weinstein

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.

September 3, 2015 in Conferences, Scholarship | Permalink | Comments (0)

Wednesday, September 2, 2015

Goldberg on Weinstein

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.

September 2, 2015 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, September 1, 2015

CFP: AALS Insurance Law Section

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  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,, (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?

September 1, 2015 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, August 25, 2015

More on Race and Tort Damages

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.

August 25, 2015 in Damages, Scholarship | Permalink | Comments (0)

Sunday, August 23, 2015

West on Gatsby and Tort

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.)

August 23, 2015 in Scholarship | Permalink | Comments (0)

Monday, August 17, 2015

Conk on Comparative Products Liability Jury Instructions

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."

August 17, 2015 in Products Liability, Scholarship | Permalink | Comments (0)

Simons on Moore on Negligence

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.

August 17, 2015 in Scholarship | Permalink | Comments (0)

Wednesday, August 5, 2015

Schwartz on How Governments Pay for Claims Against Law Enforcement

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.

August 5, 2015 in Current Affairs, Scholarship | Permalink | Comments (0)

Monday, August 3, 2015

JOTWELL Torts: Chamallas on Priaulx

Martha Chamallas reviews Nicky Priaulx's Injuries That Matter:  Manufacturing Damage in Negligence at JOTWELL.

August 3, 2015 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, July 30, 2015

Rabin on Weinstein

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.

July 30, 2015 in Scholarship | Permalink | Comments (0)

Thursday, July 16, 2015

Hylton on the Hand Test and Causation

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.

July 16, 2015 in Scholarship | Permalink | Comments (0)