Thursday, December 1, 2016
Tuesday, November 22, 2016
John Goldberg & Ben Zipursky have posted to SSRN The Strict Liability in Fault and the Fault in Strict Liability. The abstract provides:
Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort law, we isolate “the fault in strict liability” — that is, the fault line between the wrongs-based form of strict liability that is frequently an aspect of tort liability and the wrongs-free form of strict liability that is found only within the very narrow domain of liability for abnormally dangerous activities. We conclude by defending these two features of the common law of tort: the strictness of the terms on which it defines wrongdoing and its begrudging willingness to recognize, in one special kind of case, liability without wrongdoing.
Thursday, November 17, 2016
Michael Wells has posted to SSRN What did the Supreme Court Hold in Heffernan v. City of Paterson?. The abstract provides:
As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan’s First Amendment rights despite the lack of speech on his part. Or it may have ruled that the City is liable on § 1983 “official policy” grounds, even though it violated no constitutional right. This article examines each of these and argues that neither withstands scrutiny. A more convincing rationale for the outcome is that the Court in effect recognized a constitutional common law right. Alternatively, the arbitrary demotion may support recovery under the Equal Protection Clause on a “class of one” theory, though Jeffrey Heffernan did not pursue that approach and current doctrine seems hostile to it.
Thursday, November 10, 2016
Tom Baker, Eric Helland, and Jonathan Klick have posted to SSRN Everything's Bigger in Texas: Except the Medmal Settlements. The abstract provides:
Recent work using Texas closed claim data finds that physicians are rarely required to use personal assets in medical malpractice settlements even when plaintiffs secure judgments above the physician's insurance limits. In equilibrium, this should lead physicians to purchase less insurance. Qualitative research on the behavior of plaintiffs suggests that there is a norm under which plaintiffs agree not to pursue personal assets as long as defendants are not grossly underinsured. This norm operates as a soft constraint on physicians. All other things equal, while physicians want to lower their coverage, they do not want to violate the norm and trigger an attack on their personal assets. This constraint should be less effective when physicians have other ways to shield their assets, such as through large personal bankruptcy exemptions like those available in Texas. Settlement data from the National Practitioner Data Bank indicate that settlements in Texas are abnormally low, just as they are in other jurisdictions with unlimited homestead exemptions in bankruptcy. Consistent with theory, we find that more generous exemptions are also associated with lower insurance prices and lower levels of insurance coverage. These results suggest that the large "haircuts" and low insurance limits observed in the Texas data may be driven by Texas's generous bankruptcy provisions. At a minimum, Texas is not generally representative of other jurisdictions. This weakens the case for extrapolating conclusions from Texas data to other jurisdictions.
Wednesday, November 2, 2016
Tony Sebok has posted to SSRN Actual Causation in the Second and Third Restatements: Or, the Expulsion of the Substantial Factor Test. The abstract provides:
This chapter contrasts the Restatement (Third) of Torts: Liability for Physical Harm’s Chapter Five (on Factual Cause) and Chapter Six (on Scope of Liability) with the treatment of causation in the Restatement (Second) of Torts’ Chapter 16 (“Legal Cause”). It was written for a book on causation in both common law and civilian jurisdictions.
The chapter examines in some detail the arguments that led the Reporters of the Third Restatement to reject the expression “substantial factor” and how the work done by this phrase in the domain of cause-in-fact was handled by and expanded conception but-for causation to which was added the idea of the “causal set model”, or NESS Test. The work done by the phrase “substantial factor” in the domain of proximate cause is now done by the concept of “scope of the risk” and variants of the risk rule.
The chapter emphasizes the seriousness with which the Third Restatement sought to remove from the question of cause-in-fact any subjective judgment it deemed a matter of proximate cause. The chapter points argues that this focus on rendering cause-in-fact judgments purely objective, when combined with the causal set model, produces a final product where much of the normative work that was once done in causation is now pushed off into questions of apportionment.
Tuesday, November 1, 2016
Thursday, October 27, 2016
Wednesday, October 26, 2016
Hillary Farber has posted to SSRN Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones. The abstract provides:
The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.
We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new technology, drones (or unmanned aircraft systems as they are commonly referred) are outpacing the law. Controversies over whether a drone can hover above one’s property, capture images of those on the ground without consent, destroy a drone that is invading one's privacy are ripe legal issues. The question being asked by lawmakers, practitioners, journalists, and the general public is whether existing laws provide adequate remedies or whether this technology falls through a legal gap? This article sets out to answer that question at a time when lawmakers are feverishly proposing drone specific legislation, possibly duplicating laws already in place.
At present, 45 states have considered legislation seeking to regulate drones. Twenty-five states have passed laws that limit the use of drones. The majority of these laws include civil causes of action for capturing images and recordings of individuals by a drone without consent. Before more incidents ripen in to lawsuits, we need to evaluate whether our long-standing common law torts - trespass, nuisance, intrusion upon seclusion, and publication of private facts, offer remedies of equal or greater value than the drone specific legislation being considered. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation.
Tuesday, October 18, 2016
Avi Dorfman has posted to SSRN Negligence and Accommodation. The abstract provides:
Whereas the Restatement of Torts as well as leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of proceeding resonates well with a powerful egalitarian idea of accommodating, rather than overlooking, relevant differences—that is, treating the plaintiff and the defendant differently is necessary for the duty of reasonable care to give effect to the qualitative difference between the life and limb of the former, on the one hand, and the autonomy of the latter, on the other. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, which is to say to relate as substantively equals.
Tuesday, October 11, 2016
Alex Stein has posted to SSRN The Domain of Torts. The abstract provides:
This Article advances a novel positive theory of the law of torts that grows out of a careful reading of the caselaw. My core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since the operation of the doctrines that determine individuals’ liability for accidents — negligence, causation and damage — is universally believed to be driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the caselaw, as I repeatedly demonstrate in the Article.
Specifically, I show that our tort system operates in two parallel modes — private and public — rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged tortfeasor. If the benefit sought by the tortfeasor is purely private, she will be held liable for the harm resulting from her actions whenever she exposes her victim to a nonreciprocal risk. The tort system never allows actors to inflict harm on others when the benefit they seek to derive from their activity is purely private, no matter how significant that private benefit is relative to the victim’s harm. The system consequently does not hesitate to discourage the production of private benefits even when they are economically more valuable than the victim’s safety. That is, in cases of private benefit tort law excludes cost-benefit analysis in favor of the reciprocity and equality principles. When the benefit that accompanies the harm-causing activity is public, by contrast, tort law adopts a strictly utilitarian approach and focuses exclusively on minimizing the cost of accidents and the cost of avoiding accidents as a total sum. Liability in such cases is imposed based on the famous Learned Hand formula (and similar formulations). Accordingly, if the benefit from the harm-causing activity is greater than the expected harm and precautions are too costly, no liability will be imposed. The consequent reduction in the victim’s protection is counterweighted by society’s need not to chill the production of public benefits that the victim enjoys on equal terms with all other members of her community.
This insight has far-reaching implications for tort doctrine and theory. Contemporary scholarly debates about our tort system’s goals interpret the system as promoting fairness and corrective justice or, alternatively, economic efficiency. I demonstrate, however, that this dichotomous view is fundamentally mistaken. Careful analysis of the caselaw reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode, and that when the system switches to the public mode it aims at achieving economic balance between victims’ safety and the production of public benefits. My analysis also demonstrates that tort doctrine is best understood as accident law because it focuses predominantly on individuals’ mutually unwanted interactions, identified as accidents, as opposed to mutually wanted and coercive interactions regulated, respectively, by contract law and criminal law. As I explain in this Article, switches between these regulatory regimes, and between torts and regulatory laws, only occur as a result of doctrinal migrations.
Monday, October 3, 2016
Jennifer Arlen has posted to SSRN Economic Analysis of Tort Liability for an Imperfect World. The abstract provides:
Tort liability generally is not justified by the presence of risk-producing activities alone. It tends to be justified by the combination of risk-producing activities and information costs that impede alternative solutions, such as private contracting or ex ante regulation. The observation that tort liability is justified by information costs impacts economic analysis of tort liability. It highlights that economic analysis of optimal tort rules should employ economic models where information is costly. In addition, it reveals the goals of optimal tort liability often should include providing optimal incentives to risk-imposers and others to invest in information needed to identify and provide optimal level of care. This chapter presents economic analysis of optimal tort liability focusing on the use of liability where information is costly. It shows that incorporating endogenous costly information alters tort liability’s optimal structure and incentive effects, both as applied to individual injurers and risk-imposers operating within organizations.
Thursday, September 29, 2016
John Goldberg & Ben Zipursky have posted to SSRN The Supreme Court's Stealth Return to the Common Law of Torts. The abstract provides:
In its famous 1938 Erie decision, the U.S. Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, invasion of privacy, and infliction of emotional distress, the other concerning the preemption of state products liability law – we explain how the Court has increasingly empowered federal courts to serve as fora in which repeat-player defendants are offered a ‘second bite at the apple.’ This is precisely the role for federal courts that Erie rejected.
Wednesday, September 28, 2016
Charles Silver, David Hyman, Bernard Black, and Myungho Paik have posted to SSRN Policy Limits, Payouts, and Blood Money: Medical Malpractice Settlements in the Shadow of Insurance. The abstract provides:
We now revisit our findings, using an extended dataset (1988–2005) that lets us study policies purchased through 2003, which encompasses the period during which Texas experienced a med mal insurance crisis (1999–2003) and adopted tort reform to limit med mal lawsuits (2003). Our updated findings are largely consistent with our original findings: policy limits continue to cap recoveries; physicians still rarely make OOPPs; most OOPPs are modest; and real policy limits continue to shrink. We also find evidence that, at the end of the extended period, physicians often purchased less coverage (i.e., policies with limits of $100,000–$200,000 instead of $500,000–$1 million).
Our findings have important policy implications. If physicians carry less real coverage over time, lawsuits should become less profitable. This will make it harder for injured patients to find plaintiffs’ lawyers willing to handle their cases; shift the cost of medical injuries away from providers and toward patients and first-party health insurers; weaken liability insurers’ incentives to monitor providers; and diminish the (already modest) deterrent effect of tort law. If these findings are representative, they may help explain the nationwide decline in med mal claiming that we document elsewhere. Finally, our findings raise questions about the explanatory power of Baker’s “blood money” norm, at least for med mal litigation.
Monday, September 26, 2016
Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race-based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.
Wednesday, September 21, 2016
Governments often require that products carry warnings to inform people about risks. The warnings approach, as opposed to the command and control approach to risk regulation, functions as a decentralized regulatory mechanism that empowers individuals to make decisions that take into account their own circumstances and preferences. Thus, individuals will be aware of the risks and the value of taking precautions, and they may avoid a product that others consume if they find the risk unacceptable. Ideally, warnings would allow individuals to assess both their personal level of risk and the benefits they will receive from another unit of consumption. Then those receiving positive expected benefits will consume more; those receiving negative net benefits will curtail their consumption. Only Pangloss would be happy with the current warning system. It fails miserably at distinguishing between large and small risks; that is to say between wolves and rabbits. Such a system is of little value, since people quickly learn to ignore a warning, given that rabbits, which pose little danger, are many times more plentiful than wolves. When a wolf is truly present, people all too often ignore the warning, having been conditioned to believe that such warnings rarely connote a serious threat. We illustrate the clumsy-discrimination issue with examples related to cigarette labeling, mercury in seafood, trans fat in food, and California’s Proposition 65. We argue that the decision to require a warning and the wording of the warning should be designed in a manner that will lead consumers to roughly assess their accurate risk level, or to at least distinguish between serious and mild risks. Empowering individuals to make appropriate risk decisions is a worthwhile goal. The present system fails to provide them with the requisite information.
Friday, September 16, 2016
Mark Geistfeld has posted to SSRN The Contractually Based Economic Loss Rule in Tort Law: Endangered Consumers and the Error of East River Steamship. The abstract provides:
The rule of strict products liability has been widely adopted in the U.S., subjecting manufacturers and other product distributors to strict tort liability for physical harms proximately caused by defective products. The scope of strict products liability has also been widely limited to bar tort recovery for cases in which the defect only damaged the product itself, causing pure economic losses such as repair costs and lost profits. In these cases, a growing majority of courts have followed the approach charted by the U.S. Supreme Court in East River Steamship Corp. v. Transamerica Delavel Inc., which barred tort recovery for stand-alone economic harms to ensure that contract law does not “drown in a sea of tort.” Relying on this reasoning, other courts have applied the rule to dismiss tort claims for pure economic losses caused by the negligent performance of a service contract.
As specified by East River Steamship, the economic loss rule is fully defined by two formal properties. If the form of the parties’ relationship permits the allocation of loss by contracting, and if the form of the alleged injury is for pure economic loss, then the rule bars tort recovery. Across the full range of tort cases, however, these two formal properties do not always determine whether tort law permits recovery for pure economic loss, creating a body of case law that appears to be in considerable disarray.
The economic loss rule is routinely justified with a contracting rationale, yet that rationale has never been substantively developed. Doing so shows that the availability of tort recovery for pure economic losses depends on whether the ordinary consumer has the requisite information to protect the relevant set of interests by contracting. In considering the allocation of liability for economic losses that only implicate economic interests in lost profits and the like, the ordinary consumer is sufficiently well informed to protect these interests by contracting. But as established by the substantive rationale for strict products liability, the ordinary consumer is unable to make informed contractual decisions about product risks threatening physical harm. The same contracting problem extends to certain types of pure economic loss, including the financial costs of medical monitoring and asbestos abatement. Consequently, the substantive contracting rationale justifies an intermediate economic loss rule that permits endangered consumers to recover tort damages for these types of pure economic loss while otherwise denying tort recovery for disappointed product users. The same conclusion applies to service contracts. This contractually based intermediate economic loss rule explains the full body of case law while being substantively consistent with the widely adopted rule of strict products liability, unlike the East River Steamship formulation.
Friday, September 9, 2016
Yonathan Arbel & Yotam Kaplan have posted to SSRN Tort Reform through the Backdoor: A Critique of Law & Apologies. The abstract provides:
In this Article we show how the biggest tort reform of the last decade was passed through the backdoor with the blessing of its staunchest opponents. We argue that the widely-endorsed apology law reform — a change in the national legal landscape that privileged apologies — is, in fact, a mechanism of tort reform, used to limit victims’ recovery and shield injurers from liability. While legal scholars overlooked this effect, commercial interests seized the opportunity and are in the process of transforming state and federal law with the unwitting support of the public.
Friday, August 26, 2016
Hart Publishing has published James Edelman and Elise Bant's Unjust Enrichment. From the blurb:
Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors' thinking, responding to novel issues and circumstances that have arisen in the maturing case law, has required many chapters of the book to be completely rewritten. The scope of the book is also much broader. It concerns the principles of the law of unjust enrichment in Australia, New Zealand, England and Canada. Major decisions of the highest courts of these jurisdictions in the last decade provide a fertile basis for examining the underlying principles and foundations of this subject. The book uses the leading cases, particularly in England and Australia, to distil and explain the fundamental principles of this branch of private law. The cases discussed are current as of 1 May 2016 although the most recent could only be included in footnotes.
For a 20% discount, download this flyer: Download Edelman_Bant
Hart has also published Alan Beever's A Theory of Tort Liability. From the blurb:
This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.
For a 20% discount, download this flyer: Download Beever
Michael Sant'Ambrogio and Adam Zimmerman have posted to SSRN Inside the Agency Class Action. The abstract provides:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.
A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.
This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.