Friday, April 20, 2018
Aaron Twerski has posted to SSRN The Demise of Drug Design Litigation: Death by Federal Preemption. The abstract provides:
For over half a century courts and commentators have disagreed as to the standards governing liability for drug design cases. In the last several years the United States Supreme Court decided two cases that will have a profound effect on whether drug design defect cases, in general, are federally preempted. In PLIVA v. Mensing and Mutual Pharmaceutical Co. v. Bartlett, the Court preempted product liability actions for failure to warn and design defect against the manufacturers of generic drugs that met the FDA standard for the name-brand drug. In these cases the court made wide ranging statements that are applicable to name-brand drugs as well. This essay finds the Court’s reasoning in Bartlett erred in having misread New Hampshire law. At the same time its reasoning has opened a debate as to the scope of federal preemption for name-brand drugs. This essay argues that the sweeping language in these two cases leads to the conclusion that common law drug design cases in name-brand drugs will fall prey to federal preemption.
Friday, April 13, 2018
Cathy Sharkey has posted to SSRN Field Preemption: Opening the "Gates of Escape" from Tort Law. The abstract provides:
Richard Epstein remains a (lone) staunch defender of field preemption of state tort laws in drug failure-to-warn and design defect cases. Field preemption blocks state efforts to regulate within that field even where there is no explicit conflict with federal regulation.
Epstein’s position squares with his libertarian predilections. He has decried how concurrent federal and state regulation ratchets up governmental control so that the most intrusive regulator always wins. Moreover, his sharp critique of more moderate conflict preemption approaches, such as my “agency reference model” that harnesses key interpretive tools of administrative law to shed light on the preemption question, follows from his distrust of, and disdain for, the burgeoning administrative state.
Far less examined is the extent to which Epstein’s normative vision of tort law — and how far it deviates from the reality of the expansion of tort liability and rejection of contractual defenses since the 1960s — drives his fervent embrace of field preemption. Seen in this light, field preemption compensates for the systemic errors of tort law.
Framing Epstein’s case for field preemption in this way has two significant implications. First, his critiques of the “agency reference model” are overdetermined. No amount of evidence either that courts are moving in this direction or that they are equipped to scrutinize the administrative regulatory record in deciding whether a state law failure to warn or design defect claim should be foreclosed matters, if the first best position is wholesale eradication of these expansive product liability causes of action.
Second, whereas Epstein has rightly emphasized the high stakes when the issue is whether federal law will preempt state law causes of action that have vastly expanded since the adoption of the Restatement (Second) of Torts in 1966, we might invert the line of inquiry to examine the prospects for adoption of a far more restrictive tort liability standard for drug and device manufacturers, such as the 1998 Restatement (Third) of Products Liability § 6(c). That provision met with a chilly reception in the courts, and most (Epstein included) read this as evidence of the insatiable appetite for ever-expansive state tort liability. But it may well be that the rise of preemption of products liability claims — which incidentally took flight almost at the very same time as the promulgation of the Third Restatement — stunted the evolution of state tort law standards. If that is so, then field preemption is as much to blame for perpetuating the need for a gate of escape from poorly developed concepts of tort liability against drug and device manufacturers.
Monday, April 9, 2018
Ben Zipursky has posted to SSRN his Monsanto Lecture Online Defamation, Legal Concepts, and the Good Samaritan. The abstract provides:
Federal and state courts around the country – aided by academics on almost all sides – have completely misread the Communications Decency Act [“CDA”] § 230(c). This widely cited provision was designed to protect Internet service providers and certain Internet users from liability for the defamatory statements posted by others online. Congress did not want these actors to face a defamation-law equivalent of a duty to rescue strangers -- an affirmative duty to remove third parties’ defamatory statements about others. And it certainly did not want a service provider’s efforts to protect a stranger’s reputation to backfire by suddenly creating liability for everything the service provider failed to remove. So, like every state legislature has done for off-duty medical personnel who act as good Samaritans, Congress in 1996 created a law saying that good faith efforts to filter offensive or defamatory material do not create an affirmative duty to remove such material and do not open them up to liability. For good measure, the statute also laid down a basic rule that there is no liability simply for being the conduit of what others have posted or for failing to remove such postings from one’s own site, and it preempts any state law that does otherwise. The CDA thus ensures that states’ defamation law runs roughly parallel to duty-to-rescue doctrine in the common law of negligence as amended by good Samaritan statutes. Indeed, that is why “Good Samaritan” is in the title of CDA § 230(c).
Under the sway of a talented First Amendment bar and in an academic culture hostile to common law concepts, judges around the country have selected an entirely different and misguided interpretation of § 230(c). They read the statute as, in effect, an abrogation of libel law’s classic republication rule, which states that a person who republishes a defamatory statement is liable as if she were the one who first said it. According to the overwhelmingly dominant interpretation of courts today, once someone says something defamatory, anyone who reposts it enjoys complete immunity from all state and federal law, even if the republisher knows the statement to be false and defamatory. Those academics who have rejected this interpretation tend to swing to the other extreme, advocating that website owners who have notice of a defamatory posting should be liable for failure to remove it. This too misses the point of the statute’s text. Through a detailed examination of libel doctrine and a close analysis of the case (Stratton Oakmont v. Prodigy) that generated the development of a protective federal statute, the article displays the correct reading of the statute and the importance of retaining a robust version of the republication rule online.
Monday, April 2, 2018
Ken Abraham & Bob Rabin have posted to SSRN Automated Vehicles and Manufacturer Responsibility for Accidents: A New Legal Regime for a New Era. The abstract provides:
The United States is on the verge of a new era in transportation, requiring a new legal regime. Over the coming decades, there will be a revolution in driving, as manually-driven cars are replaced by automated vehicles. There will then be a radically new world of auto accidents: most accidents will be caused by cars, not by drivers. Thus far, however, proposals for reform have failed to address with precision the distinctive issues that will be posed during the long transitional period in which automated vehicles share the roadway with conventional vehicles, or during the succeeding period that will be dominated by accidents between automated vehicles. A legal regime for this new era should more effectively and sensibly promote safety and provide compensation than the existing tort doctrines governing driver liability for negligence and manufacturer liability for product defects will be able to do. In a world of accidents dominated by automated vehicles, these doctrines will be anachronistic and obsolete. We present a proposal for a more effective system, adopting strict manufacturer responsibility for auto accidents. We call this system Manufacturer Enterprise Responsibility, or “MER.” In describing and developing our proposal for MER, we present the first detailed, extensively analyzed approach that would promote deterrence and compensation more effectively than continued reliance on tort in the coming world of accidents involving automated vehicles.
Friday, March 30, 2018
Al Calnan has posted to SSRN Torts as Systems. The abstract provides:
This article offers a science-based answer to an old philosophical question, “What is the essential nature of torts?” Building on the “process theory” of torts and my own general theory of “jurisilience,” the proposed answer emerges from a neglected natural fact: torts is a complex system. Like all such systems, torts is both shaped by and composed of various subsystems. Mankind’s biological, neuro-psychological, and socio-cultural subsystems create selfish, social, and ratio-moral conflicts that influence torts’ history, content, and practice. This inner tension also accounts for torts’ adversarial structure, which includes three systems in one—a dispute resolution system, a lawmaking system, and the social value system at large.
The discordant form of these features reveals torts’ true function. To manage complexity, torts continuously coordinates its friction points, using its trilateral subsystems to harmonize its disparate goals and values and reconcile society’s interpersonal disputes.
Though tort law constrains this coordinative process, it does not control it. Rather, like every other complex system, torts’ coordinative process is decentralized, spontaneous, and synergistic. This can be seen horizontally across tort theories, as “core” distinctions among intentional torts, negligence, and strict liability progressively erode and transform. It also is evident within each theory’s “indispensable” elements, which are constantly adjusted, informed, or blurred by other key concepts. These emergent patterns even extend vertically in the development of important fields like pure emotional distress, premises liability, and strict products liability, where system dynamics can take different trajectories and produce unplanned and unpredictable results.
In this sense, torts is not a stable concept that can be comprehended solely by studying its prominent components, as tort theorists have long supposed. Instead, it is really a false façade for the turbulent vortex of conflict and change animating the complex systems beneath.
Thursday, March 29, 2018
Ken Abraham and Ted White have posted to SSRN The Puzzle of Dignitary Torts. The abstract provides:
In recent years there has been much greater legal attention paid to aspects of dignity that previously have been ignored or treated with actual hostility, especially in constitutional law and public law generally. But private law also plays an important role. In particular, certain forms of tort liability are imposed in order to protect individual dignity of various sorts, and to compensate for invasions of individual dignity. Defamation, invasion of privacy, intentional infliction of emotional distress, and even false imprisonment fall into this category. Despite the growing importance of dignity, this value has received very little self-conscious or express attention in the tort cases or torts scholarship. The absence of a robustly-articulated conception of the interest in dignity that tort law protects is a puzzle. Why have notions of dignity and of dignitary torts been little more than labels, reflecting a value that has gone unanalyzed and undebated, despite its obvious and growing importance? The answers to these questions lie in the structure of the common law of torts, in the history of twentieth-century tort law scholarship, in the jurisprudence of doctrinal boundaries, and – perhaps surprisingly – in developments in constitutional law during the last four decades of the twentieth century. In the first analysis of the dignitary torts as a whole in half a century, this Article explores the puzzle of the dignitary torts. It argues that these torts have been under-theorized because of the very nature of the common law system, which poses a powerful obstacle to any doctrinal reorientation of tort law toward the understanding or creation of a unified species of dignitary torts. The law of torts may be fully capable of protecting the forms of dignity that our world increasingly recognizes and honors, but it turns out that it must do so in the same manner that it has always protected the interests that are central to our values, cause-of-action by cause-of-action.
Thursday, March 22, 2018
Doug Rendleman has posted to SSRN Rehabilitating the Nuisance Injunction to Protect the Environment. The abstract provides:
The Trump administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This article advocates more vigorous state environmental tort remedies for nuisance and trespass.
An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’s decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue public health and environmental protection and militate against effective private-law remedies for environmental torts.
This article advocates flexible and pragmatic common-law techniques instead of doctrinal law-and-economics analysis. Moreover, behavioral economists’ studies have undermined and qualified many law-and-economics theories. In addition to arguing for more and better injunctions, this article criticizes the law-and-economics mindset that nuisance-trespass parties’ post-injunction negotiation will convert an injunction into an excessive money settlement. It also shows that the Cathedral article’s vocabulary and four-rule organization are both too long and too short as well as confusing and misleading.
This article maintains that courts’ private-law environmental injunctions should utilize judicial techniques from public-law structural injunctions in what it calls the standards injunction. In addition, courts ought to broaden nuisance and trespass plaintiffs access to punitive damages and restitution. The author hopes that this argument for more and more detailed private-law injunctions and remedies will percolate upward to augment environmental protection leading to more effective private- and public-law remedies against environmental torts and other environmental violations including global warming, and climate change.
Tuesday, March 20, 2018
Marc Ginsberg has posted to SSRN Informed Consent: No Longer Just What the Doctor Ordered? Revisited. The abstract provides:
As the law of informed consent has developed and courts have recently considered different informed consent issues unrelated to the typical required disclosure. In light of these decisions, I have concluded that it is time to revisit the unconventional and other selected topics of informed consent.
Monday, March 19, 2018
Friday, March 16, 2018
Tsachi Keren-Pez & Richard Wright have posted to SSRN Liability for Mass Sexual Abuse. The abstract provides:
When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even many thousands of injurers, with multiple and often overlapping victims of each injurer. Courts (and lawyers) struggle with these situations for a simple reason: they insist on applying tests of causation that fail when the effect was over-determined by multiple conditions. The failure to properly understand the causation issue has exacerbated failures to properly understand and distinguish the injury, legal responsibility and allocation of liability issues.
All of these issues, plus other significant issues, arose in Paroline v. United States (2014), in which the Supreme Court considered the statutory liability of a convicted possessor of child pornography to a victim whose images he possessed for the pecuniary losses that she suffered due to her knowledge of the widespread viewing of those images. In this article we critique the Justices’ opinions in Paroline as part of a broader discussion that is intended to clarify and distinguish the causation, injury, legal responsibility and allocation of liability issues in general and as applied in particular to situations involving mass sexual abuse, while also criticizing the Court’s ill-considered dicta that would make any compensatory award in civil as well as criminal cases subject to the Constitutional restrictions on criminal punishment.
Wednesday, March 14, 2018
Ken Abraham has posted to SSRN Tort Luck and Liability Insurance. The abstract provides:
Important features of both the incidence and magnitude of tort liability depend heavily, and therefore arbitrarily, on luck. One of a number of examples is the eggshell-plaintiff rule, which imposes liability for all the physical injury a defendant causes, even if the amount of that injury was unforeseeable. In each instance, tort liability hinges on chance in a way that bears only an attenuated relationship, or no relationship, to the degree of responsibility that can fairly be attributed to the party in question. Despite the arguable injustices that tort luck reflects, it remains in the background, largely uncontroversial. Tort luck would be surprising, intolerable, or both, if it were not enmeshed in a system that relies so heavily on liability insurance to cushion its impact. Liability insurance reconciles, ameliorates, or eliminates many of the anomalies and contradictions in tort doctrines that might long ago have disappeared if it were not for liability insurance. This Article analyzes the ways that liability insurance interacts with tort luck, identifying the pervasive presence of insurance in tort liability, from both qualitative and quantitative perspectives. It then examines the tort doctrines and practices that make liability hinge, arguably arbitrarily, on luck, and the ways in which insurance ameliorates this tort luck. Finally, the Article develops a counter-history of tort law, exploring the shape that tort law might have taken if liability insurance had not been available to play a role in ameliorating tort luck.
Tuesday, March 13, 2018
Benjamin Cardozo's 1921 opinion for the Court of Appeals of New York in Wagner v. International Railway Co. has been called the "seminal case imposing liability on a tortfeasor for harm suffered by a person who came to the rescue of another." The case is indeed seminal, but it did not become so on its own. Rather, in Wagner, Cardozo took a question on which there already was substantial precedent, and re-answered the question in a new, inimitable, and memorable way. As Cardozo put it in a now-canonical phrase, "Danger invites rescue." Then, precisely by virtue of the way Cardozo did this re-answering, Wagner became the leading decision on the subject. In this Article we analyze Cardozo's accomplishment, and show how his opinion in Wagner foreshadowed what he later accomplished in his even more celebrated opinion in Palsgraf v. Long Island R.R. Co.
Thursday, March 8, 2018
David Partlett has posted to SSRN Remedies for Breach of Privacy: A Study of a Different Hedgehog. The abstract provides:
This article was written as stating and commenting on the American law of remedies in the tort law of privacy. It will appear in a book edited by Jason Varuhas and Nicole Moreham to be published in 2018 by Hart Publishing (UK). After examining the theoretical basis of American remedies law with its differences from, and similarities to, the theoretical foundations in other common law and civil law jurisdictions, the paper probes the remedies as shaped by the substantive interests of protection of property and the autonomy enhancing purposes of privacy protection. Each of the traditional categories of the tortious protection of privacy as fashioned by William Prosser touch free speech interests. To the extent that privacy protections trench on those free speech interests, as realized in the US Supreme Court’s aggressive first amendment jurisprudence, the remedies are thus quite idiosyncratic compared with remedies elsewhere. For example injunctive relief is crimped and damages are constricted. The remedial law must be understood against the first amendment to which every other interest bends its knees.
Wednesday, March 7, 2018
Hillel Levin & Michael Wells have posted to SSRN Qualified Immunity and Statutory Interpretation: A Response to William Baude. The abstract provides:
In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.
Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law method.
Friday, March 2, 2018
Benjamin McMichael & Kip Viscusi have posted to SSRN Taming Blockbuster Punitive Damage Awards. The abstract provides:
Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a broader level, the Supreme Court has announced a general limitation on punitive damages under the Due Process Clause of the Fourteenth Amendment, which applies to all cases and contains very few exceptions. Under State Farm v. Campbell, punitive damages awards that exceed the accompanying compensatory award by more than a factor of ten will generally violate due process. However, this limit is substantially higher than the punitive damages caps that some states have put in place.
This Article provides the first empirical analysis of the effect of state punitive damages caps on blockbuster awards and offers the first comparison of the effect of these reforms with the effect of the Supreme Court’s current constitutional doctrine on punitive damages. Understanding the roles of these legal regimes in how the largest punitive damages awards are imposed provides unique insight into how different factors affect courts’ decisions to award punitive damages. Relying on this insight, as well as previously developed empirical evidence, we argue that it is time for a new constitutional doctrine on punitive damages. In particular, we argue that the Supreme Court should incorporate the lessons learned from the different effects of state punitive damages caps to lower the limit placed on punitive damages under the Due Process Clause. For cases involving financial loss, punitive awards more than three times the size of the accompanying compensatory award will generally violate due process. For cases involving severe injuries, such as wrongful deaths, the total value of punitive damages and compensatory damages should not exceed economic estimates of the value of a statistical life, which is an economic deterrence measure. This proposed structure would better achieve the Court’s goal of returning predictability to punitive damages awards, blockbuster and otherwise.
Wednesday, February 21, 2018
Tuesday, February 20, 2018
Ori Herstein has posted to SSRN Legal Luck. The abstract provides:
Explaining the notion of "legal luck" and exploring its justification. Focusing on how legal luck relates to "moral luck," legal causation and negligence, and to civil and criminal liability.
Friday, February 16, 2018
Lauren Miller (Student, Maryland) has posted to SSRN Taking a Chance on Patient Life: Suicidal Patients, Involuntary Admissions, and Physician Immunity in Maryland. The abstract provides:
Maryland jurisprudence exempts from liability any physician that elects not to involuntarily admit a mentally ill patient into treatment. This article explores through both statutory and case law jurisdictional differences in the duty owed by physicians to their foreseeably suicidal patients. These findings are applied to Chance v. Bon Secours Hospital and used to advocate against expanding statutory immunity to physicians that recklessly release involuntarily admitted patients from treatment before improvements to their mental health are achieved.
Monday, February 5, 2018
Bob Rabin has posted to SSRN Accommodating Tort Law: Alternative Remedies for Workplace Injuries. The abstract provides:
In this paper, I explore the often-contested territory that tort occupies within the more expansive domain of worker’s compensation. This exploration reveals that, far from being substitutes, tort and worker’s compensation are, in fact, deeply and inextricably joined: A complementarity that underscores the trade-offs intrinsic to each system. Whatever the source and scale of harm, the incentives to pursue a third-party tort suit—in light of the bar on a direct claim against the employer—are straightforward. Worker’s compensation no-fault benefits feature stringent caps on economic loss beyond medical expenses, and bar non-economic recovery altogether. By contrast, tort provides the prospect of recovery for total wage loss, as well as pain and suffering, which is considerably more remunerative than worker’s compensation benefits—particularly in the case of more serious injuries or workplace-related fatalities.
These tort claims, in turn, can raise a related question that again demonstrates the inextricable tie between worker’s compensation and tort: Whether the third-party product manufacturer, if responsible in tort, can recover a portion of the tort award through a contribution claim against the employer, despite the ban on a direct employee tort claim against the employer. Correlatively, there is the prospect of the employer seeking to recapture worker’s compensation benefits paid to the employee through a subrogation claim against the third-party tort defendant.
These intersecting claims most frequently involve accidental harm in the workplace, rather than intentional misconduct or reckless disregard for the safety of workers. But in the latter cases of egregious employer misconduct, most states recognize an exception from the bar on tort recoveries. As a consequence, these are situations where tort recovery may be a substitute for worker’s compensation rather than standing side-by-side with tort, as in accidental harm cases. Similarly, Title VII claims for sexual harassment in the workplace stand as a distinct tort-type source of recovery entirely apart from the worker’s compensation system.
Monday, January 22, 2018
Richard Lewis has posted to SSRN Humanity in Tort: Does Personality Affect Personal Injury Litigation?. The abstract provides:
This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid?
A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here.
The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.