Wednesday, November 19, 2014
Omari Scott Simmons (Wake Forest) has posted to SSRN Muted Deterrence: The Enhanced Attribution of Tort Liability to U.S. Higher Education Institutions for Student Safety. The abstract provides:
A key challenge facing modern universities is ensuring student safety. This task inevitably involves deterring risky behavior. The existing law on campus safety, however, inadequately addresses this challenge. This essay argues that an overemphasis on tort litigation fails to (i) adequately deter risky individual and institutional behaviors; (ii) provide incentives to higher education institutions to create safe campuses; and (iii) provide higher education institutions with the resources, know-how, and overall capacity to improve campus safety. Recognising the limitations of adversarial tort litigation in the student safety context, this essay, proposes a more collaborative, less adversarial, regulatory framework for making US campuses safer learning environments.
Wednesday, November 12, 2014
James Hackney (Northeastern) has posted to SSRN Guido Calabresi and the Construction of Contemporary American Legal Theory. The abstract provides:
This article was written as a contribution to a symposium honoring Judge Guido Calabresi on the occasion of his 80th birthday, and recognizing his contributions to law and economics. It situates Judge Calabresi’s academic writings, starting with his initial contributions to law and neoclassical economics, against the broader backdrop of American legal theory. The article begins with a brief biographical sketch highlighting the author’s personal connection with Judge Calabresi. It then lays out the historical relationship between legal realism and law and neoclassical economics (commonly referred to as law and economics). This provides the background for Judge Calabresi’s initial major intervention — in the form of his historic book, The Costs of Accidents — into the discourse of American legal theory. The article then discusses what the author argues is a fundamental axis around which debates concerning the meaning of law revolve: the science-politics divide. This sets the groundwork for articulating the ways in which the three dominant strands of legal theory in the 1980s — law and economics, critical legal studies, and liberal-rights theory — were centered on the issue of whether law (and legal theory) was fundamentally a political or scientific enterprise. The article ends with an extended discussion of the ways in which Judge Calabresi’s post-The Costs of Accidents writings, too often overlooked, respond to the science-politics debate in a philosophically pragmatic way that reflects (and has paved the way for) the current state of American legal theory.
Tuesday, November 11, 2014
Claudia Haupt (Columbia) has posted to SSRN Professional Speech. The abstract provides:
Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.
First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.
Friday, November 7, 2014
Maya Steinitz (Iowa) has posted to SSRN The Case for an International Court of Civil Justice. The abstract provides:
This Essay aims to start a conversation on a novel institutional solution to the problem that de facto (not de jure) there is today no forum in which foreign plaintiffs can obtain enforceable judgments against American corporations that commit mass torts overseas. That solution is the establishment of an International Court of Civil Justice (ICCJ).
The Essay starts by describing what the author refers to as "the problem of the missing forum" – the global absence of an effective court for cross-border mass torts. It then provides a blueprint for an ICCJ. In so doing, it explains why an ICCJ is politically viable and may, specifically, appeal to rather than repel corporate America.
Friday, October 31, 2014
Wei Zhang (Singapore Management University) has posted to SSRN two pieces that provide a primer to Chinese tort law. First up is The Evolution of the Law of Torts in China: The Growth of a Liability System. The abstract provides:
During the “Reform and Opening-up” years, tort disputes have become one of the main types of cases litigated in Chinese courts, and tort law has been playing a significant role in carving out the incentives of businesses and individuals in China. Since the formal legal rules on torts came into being in 1986, a large number of changes have occurred in the law of torts. The transformation of the rules, however, has eluded previous introductory works on Chinese tort law written in English. This paper is devoted to delineating these changes, which present the growth of a liability system moving predominantly in favor of tort victims. Unlike most existing English literature on Chinese tort law that survey primarily the major civil statutes, this paper places commensurate emphasis on the rules dealing with tort liabilities embedded in the administrative laws and regulations as well as the judicial interpretations. In addition, this paper also makes a rough assessment of the efficiency implications of the evolution of tort law in China. Given the exceptionally low point where the increment of victim protection in tort law started, the change of rules in China is, by and large, moving in the direction of cost internalization as required by efficiency. However, the potential improvement in efficiency is perhaps a byproduct of the development of tort law in China. The motivation behind the rule change is more likely to be loss redistribution rather than efficiency upgrade. In light of the policy-implementing orientation of the Chinese legal system and the collectivistic propensity rooted in the law of torts, political and institutional perspectives might bring us better insights into the driving force of change of law in China.
Second, Understanding the Law of Torts in China: A Political Economy Perspective. The abstract provides:
In this paper, I tried to connect the text of the Chinese tort law with the institutional context of lawmaking in China from a political economy perspective. Two determinants, political influence and populist pressure, were identified for the tort law legislation in China, and a simple spatial model was presented to demonstrate the mechanism through which these determinants might have affected the text of the law. In particular, my research suggested that, when injurers’ political influence kept constant, the populist pressure on the injurer group tended to push the tort law rules toward the pro-victim end. On the contrary, with the similar populist pressure, the politically influential injurers could induce legal rules to their advantage. Even within a particular type of torts, the subgroup of injurers who were better organized to exert political influence would be rewarded with more favorable rules on torts than their fellow injurers, especially where populist pressure was moderate. Hopefully, this research will inspire more efforts among students of Chinese law to explore the operation of law at the microscopic level against the macroscopic institutional backdrops of this country.
Monday, October 27, 2014
Wednesday, October 22, 2014
The AALS Torts & Compensation Systems Section Newsletter is available here: Download Torts_Newsletter_2014. Section Secretary Leslie Kendrick drafted it, with the help of Kristin Glover, Research Librarian at UVa Law.
Monday, October 20, 2014
Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli have posted to SSRN Deterrence of Wrongdoing in Ancient Law. The abstract provides:
Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.
Tuesday, October 14, 2014
Keith Hylton (Boston University) has posted to SSRN Nuisance. The abstract provides:
This essay sets out the law and the economic theory of nuisance. Nuisance law serves a regulatory function: it induces actors to choose the socially preferred level of an activity by imposing liability when the externalized costs of the activity are substantially greater than the externalized benefits or not reciprocal to other background external costs. Proximate cause doctrine plays a role in supplementing nuisance law.
Tuesday, October 7, 2014
Mark Geistfeld (NYU) has posted to SSRN Risk Distribution and the Law of Torts: Carrying Calabresi Further. The abstract provides:
In a seminal article written almost 50 years ago, Guido Calabresi explained that risk distribution is an ambiguous concept that can refer to the manner in which tort liability affects the allocation of scarce resources, the spreading of losses across society, or the attainment of normatively desirable distributive outcomes. The first two conceptions are combined in the (now) conventional economic analysis of tort law, a methodological approach that is routinely associated with Calabresi. In contrast, the remaining conception of risk distribution that Calabresi identified — the attainment of normatively desirable distributive outcomes — is not ordinarily associated with the economic analysis of tort law, and yet this conception is the one that Calabresi has repeatedly invoked as being of decisive importance. In doing so, Calabresi has described how economic analysis can inform distributive questions within tort law, although he never fully developed this approach.
In this article, I try to carry Calabresi further by more rigorously showing how distributive economic analysis can be relevant to the normative evaluation of tort law. In contrast to Calabresi’s conclusion about the “pointlessness of Pareto,” I first argue that the Pareto principle embodies an autonomy-based compensatory norm that tort law can rely on to implement corrective justice under nonideal conditions that foreclose fully consensual compensatory exchanges. Within the context of these forced exchanges, a compensatory payment satisfies a compensatory obligation, which in turn is defined by the correlative compensatory right. Consequently, I next identify the substantive properties of a compensatory tort right and show how the right holder’s compensatory demands can be fully satisfied by the duty holder’s exercise of reasonable care in a wide range of cases. A compensatory norm can be fully implemented by the distribution of risk without an entitlement to compensatory damages in the event of injury, a conclusion that sheds new light on Calabresi’s original insight about the varied meanings of risk distribution within tort law.
Finally, I employ distributive economic analysis to show how the tort system can be conceptualized as a compensatory mechanism. Tort compensation is not merely a form of accident insurance as assumed by the conventional economic analysis of tort law; it fits readily into Calabresi’s taxonomy of desirable legal innovations that shift the Pareto frontier outwards. By expanding the feasible set of fully compensatory outcomes that can be attained under existing social conditions, the tort system enables individuals to engage in new risky activities while adequately compensating those who are disadvantaged by the risky behavior. The tort system has a normative dimension that is brought into sharp relief by the type of distributive economic analysis that has been championed by Calabresi but neglected by the conventional economic analysis of tort law.
Monday, September 22, 2014
Sunday, September 21, 2014
A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs. The study is available for purchase here. The L.A. Times's "The Economy Hub" discusses the study here.
Wednesday, September 17, 2014
Steve Hedley (University College Cork) has posted to SSRN Obligations: (Local) Politics or (Universal) Reason?. The abstract provides:
Obligations is both a local institution, influenced by politics, and a universal institution, influenced by reason. It is a distraction to ask which vision should be allowed to predominate: neither truth should be allowed to obscure the other. The real question is how best to accommodate both. This paper approaches the question by comparing two very different descriptions of private law: Ernest Weinrib’s "The Idea of Private Law" (a universal description not expressly tied to any legal system, beyond that it is based on the common law) and Merkin and Steele’s "Insurance and the Law of Obligations" (which is explicitly tied to the legal system of England/Wales). While there are considerable differences between the two (and I imagine that neither approach seems to value the other very much) there are also some surprising similarities between them, raising questions as to the proper perspective from which to describe private law.
Tuesday, September 16, 2014
John Oberdiek (Rutgers-Camden) has posted to SSRN Introduction: Philosophical Foundations of the Law of Torts. The abstract provides:
This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters. Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.
Thursday, September 4, 2014
Marc Rodwin (Suffolk) & Justin Silverman have posted to SSRN Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall. The abstract provides:
Concerns that medical malpractice premiums continue to grow unabated has led to numerous proposals to change liability rules and reform tort laws. Not only would proposed legislation make lawsuits more difficult for plaintiffs, but the bills do not address the real source of the problems they intend to solve. Premiums are not rising as claimed and even if they were, other factors are contributing to the plight of physicians. But in fact, the claim that malpractice premiums are an unbearable burden for most physicians is myth, not fact.
The first section of this article will examine how this myth began and the proposed legislative remedies it spawned. It will show that junk data has been used to support legislation and it will then introduce more reliable data bearing on these issues. Next, this article will describe other factors that are rarely mentioned but that have important effects on the cost of medical practice and physician income. If doctors are truly closing up shop, it’s not because of malpractice insurance premiums. This article will then examine one AMA-declared “crisis state” to see if there are indeed crises in some selected states, even if there is no crisis nationally. As will be explained, there are not. The study of individual states reveals that there are premium cycles, that recent premium increases reflect these cycles, and that rates will probably fall as they have in the past following an increase. Finally, this article will offer insight into why physicians continue to perceive a crisis despite the data presented and what the future may hold for reform.
Wednesday, September 3, 2014
John Goldberg (Harvard) has posted two pieces to SSRN. First up is Inexcusable Wrongs. The abstract provides:
Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why — or in what sense — are torts inexcusable wrongs?
This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.
Scholars ranging from Holmes to Posner have supposed that, when judges and scholars treat tort as a law for the redress of wrongs, they embrace primitive ideas of vengeance, or empty and sanctimonious notions of morality. This supposition is mistaken. In order to make sense of tort law, one must appreciate that it identifies wrongs and provides rights of action not in the name of vengeance or piousness, but to enable us to hold each other accountable for injuries that we wrongfully inflict on one another.
Next, co-authored with Gabriella Blum (Harvard), is War for the Wrong Reasons: Lessons from Law. The abstract provides:
In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is morally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.
Tuesday, September 2, 2014
Richard Wright (Chicago-Kent) has posted to SSRN Moore on Causation and Responsibility: Metaphysics or Intuition?. The abstract provides:
This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.
However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.
Yet, Moore believes, intuitions come into conflict with metaphysics when considering omissions or other absences as causes, which is routinely assumed to be true in law and life but which Moore insists is fundamentally erroneous from a metaphysical standpoint. His insistence on this point, while admirable from an intellectual integrity standpoint, completely undermines the fundamental premise of his book -- that causation is the pervasive and dominant determinant of legal responsibility -- since omissions/absences are part of every causal chain involving human action and many not involving human action.
In this paper, I defend a specific "generalist" account of causation (the NESS account) and criticize Moore's primitivist singularist account. Along the way, I address a number of issues regarding causation and legal responsibility, including the metaphysical basis for treating omissions as causes.
Thursday, August 28, 2014
Nicholas McBride (Cambridge) has posted to SSRN Tort Law and Human Flourishing. The abstract provides:
This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).
In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.
I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.
Monday, August 25, 2014
Jason Solomon has posted two pieces to SSRN. First is a symposium introduction to The Civil Jury as Political Institution. The abstract provides:
More than two hundred years after the Seventh Amendment enshrined the civil jury right, the debate over the role of the civil jury in the United States continues unabated. But even as questions about the civil jury’s competence as an adjudicative institution continue, questions surrounding the civil jury’s justification and role as a political institution are under explored.
To explore these questions in contemporary society, the Bill of Rights Institute and Law Review at William & Mary Law School hosted a symposium on The Civil Jury as a Political Institution. For two days in February 2013, scholars from an array of disciplines gathered to consider the extent to which the civil jury played a meaningful role as a political institution historically, whether it still serves that purpose today and, if so, what measures can or should be taken to ensure its continuing significance.
This short essay is the introduction to the symposium issue of the William & Mary Law Review on this topic. The essay provides a brief summary and exploration of some of the themes that arose in the papers and during the discussion.
Second is Juries, Social Norms, and Civil Justice. The abstract provides:
At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.
This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.
First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.
In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.
Friday, August 22, 2014
The paper is not yet available, but I want to advertise the forthcoming piece by Ken Abraham & Ted White for the Journal of Tort Law tribute to Jeffrey O'Connell. The abstract for Prosser and His Influence provides:
This Article focuses on the rhetorical strategies employed by William L. Prosser in presenting overviews of tort law doctrines in his celebrated Handbook of the Law of Torts, which was first published in 1941 and went through three additional editions between that date and 1971. We devote special attention to Prosser’s treatment of two relatively novel actions, intentional infliction of emotional distress and privacy, in which Prosser’s conceptualization of the elements and scope of each of the actions was influential in their adoption by numerous jurisdictions.
We also explore the sources of Prosser’s influence among his contemporaries in the legal profession in the three decades beginning in the 1940s. Prosser was unquestionably the leading torts scholar of his time: his Handbook was regarded as the authoritative torts treatise of his day, his Torts casebook was the most widely adopted in the nation, and he was the principal Reporter for the Second Restatement of Torts, which was first published in 1965. We survey the reaction of reviewers to the first edition of his treatise, which was uniformly favorable, serving to establish Prosser’s Handbook as the equivalent of a masterpiece. We also attempt to demonstrate, through a close reading of the paragraphs in which Prosser sought to make generalizations about tort doctrines, the way in which he sought to create an impression of doctrinal order that was not quite consistent with the cases he cited as support for his doctrinal propositions. Finally, we contrast the implicit criteria for scholarly visibility and influence under which Prosser forged his reputation with the quite different criteria operating in the contemporary legal academy, and seek to provide explanations for the origins of those sources of influence.
Update:: The draft is now available here.