Friday, July 21, 2017
Kyle Graham and I have posted to SSRN The Prosser Letters: Scholar as Dean. The abstract provides:
Examining a previously unexplored trove of letters, this article sheds new light on the thinking and work of William L. Prosser, the past century’s leading torts scholar. In these letters to family written while dean of the University of California, Berkeley School of Law, Prosser candidly describes his approach to scholarship; the development of his casebook, the second edition of Prosser on Torts, and some of his most well-known and influential articles. Moreover, Prosser provides his often-cynical impressions of the legal process; his views of his peers at Berkeley and at other institutions; and his work as dean. The letters also demonstrate some of Prosser’s limitations, including his craving for attention, a sometimes petty personality, and racial and ethnic biases. In all, the letters capture a scholar at the zenith of professional accomplishment in his field, who nevertheless showed signs of the insecurity that would later trigger his resignation from the Berkeley deanship and retreat from the forefront of torts scholarship.
Thursday, July 20, 2017
Jill Lens has posted two pieces to SSRN. First, An Undetectable Constitutional Violation; the abstract provides;
In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.
Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin to try to apply Philip Morris’s reprehensibility-punishment distinction. The Article then both criticizes the protection most lower courts have used—vague limiting instructions—and suggests alternative protections. A new rule governing the admissibility of nonparty harm should be used because of the constitutional implications of the admission of the evidence. Courts should also include explanations within their limiting instructions and aggressively review awards for possible Philip Morris violations despite the use of limiting instructions.
Second, Justice Thomas, Civil Asset Forfeitures, and Punitive Damages; the abstract provides:
For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.
This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction.
The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.
Tuesday, July 11, 2017
Monday, June 12, 2017
James Goudkamp has posted to SSRN the Introduction to his book Tort Law Defences. The abstract provides:
The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.
Wednesday, June 7, 2017
Friday, June 2, 2017
James Goudkamp has posted to SSRN The Birth of a Tort: A Practical Perspective on the Tort of Malicious Prosecution of Civil Proceedings. The abstract provides:
The law of torts periodically spawns a new cause of action. For example, Wilkinson v. Downton  2 QB 57 established the tort of wilful infringement of personal safety. The Protection from Harassment Act 1997 created the tort of harassment. Tort law sometimes also grows by absorbing a cause of action that was previously understood to pertain to another branch of the law. Thus, the action in breach of confidence, which was for centuries understood exclusively as a species of equitable wrongdoing, has been acknowledged, at least in cases that involve a breach of privacy as opposed to the divulgement of secret information, as a “tort” (see, e.g., Douglas v. Hello! Ltd  UKHL 21;  1 AC 1  (Lord Nicholls)). The newest addition to the stable is the tort of malicious prosecution of civil proceedings. The Supreme Court recognised that action in its landmark decision in Willers v. Joyce  UKSC 43;  3 WLR 477. In doing so, the Court thereby gave the ancient tort of malicious prosecution of criminal proceedings a sibling. This article addresses the decision in Willers.
Friday, May 26, 2017
Sabrina Safrin has posted to SSRN The C-Section Epidemic: What's Tort Reform Got to Do with It?. The abstract provides:
Today one in three babies in the United States comes into the world by cesarean section. The cesarean section has become the most commonly performed operating room procedure in the United States. Conventional wisdom holds that malpractice liability bears primary responsibility for the cesarean section epidemic and that tort reform, which caps physician liability, holds the key to its reduction. This article presents new aggregate empirical data that debunks this view. For the first time, it provides a national cesarean rate for births subject to damage caps and a national cesarean rate for births without damage caps. This data shows that a woman is not less likely to give birth by cesarean section in a state with damage caps than in one without. Thus, either damage caps are insufficient to address physicians’ concerns or other explanations better account for the overuse of the procedure. The empirical analysis will assist policy makers and advocates seeking to reduce the cesarean rate as well as contribute to consideration of the efficacy of medical malpractice reform as a means to reduce the broader problem of medical overtreatment.
The article then outlines three policy initiatives to reduce the cesarean section rate. First, it suggests upending the current payment practice for deliveries. Contrary to the present norm, it proposes that obstetricians receive more rather than less to deliver vaginally to compensate them for the extra time that vaginal delivery takes compared to cesarean delivery. Second, rather than looking to tort reform to reduce cesarean section rates, the article explores whether malpractice insurance providers themselves are contributing to the cesarean section epidemic and advocates two novel medical malpractice insurance reforms to address this problem. Third, it advocates public disclosure of hospital and physician cesarean section rates so that women can make informed decisions when selecting their health care providers and when determining whether to have a cesarean section.
Tuesday, May 23, 2017
Today the ALI's membership will be asked to review the proposed final draft of the Restatement of the Law, Liability Insurance for approval. Jeffrey Thomas has a piece examining a portion of the Restatement entitled Extra-Contractual Liability in the Restatement of the Law, Liability Insurance: Breach of the Duty to Settle or Bad Faith?. The abstract provides:
This paper focuses on the Restatement’s treatment of an insurer’s duty to settle and the duty of an insurer to act in good faith in handling liability claims. The duty to settle is framed as an objective “duty to the insured to make reasonable settlement decisions.” At the same time, however, a separate claim is retained for an insurer’s “bad faith” breach of its duties (including the duty to settle). Further, a subjective element is adopted for the bad faith standard. To be liable for “bad faith,” an insurer must act “without a reasonable basis for its conduct” and must also act with “knowledge of its obligation to perform or in reckless disregard of whether it had an obligation to perform.” This use of the objective and subjective standards creates a new paradigm, one that distinguishes between the duty to settle and “bad faith” conduct and applies different standards for liability. This paper begins with a general description of the standards and the case law in support of them. It then turns to some implications of the new paradigm, both in terms of the damages available to insureds and the application of the standards to insurer conduct at the margins of reasonableness.
Monday, May 22, 2017
Cathy Sharkey has posted to SSRN The Anti-Deference Pro-Preemption Paradox at the U.S. Supreme Court: The Business Community Weighs In. The abstract provides:
Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies. But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look. The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation of its own regulations under Auer is at issue.
This Article examines the extent to which the business community is involved in, and is perhaps even playing a role in perpetuating, this paradox. It also remains to be seen how, if at all, this will affect the Court going forward.
Tuesday, May 16, 2017
Wednesday, May 10, 2017
Israel Gilead and Mike Green have posted to SSRN Positive Externalities and the Economics of Proximate Cause. The abstract provides:
Should drug manufacturers be liable to consumers who overall benefited substantially from a drug for unavoidable and reasonable negative side-effects, just because the drug is defective with regard to other side-effects or other consumers? Should a surgeon be liable for a typical and reasonable risk that materialized during the surgery just because another risk, an unreasonable one, that did not materialize, rendered the treatment problematic?
Common sense and fairness point to a negative answer: actors should be liable for the unreasonable risks created not for reasonable risks. The Third Restatement of Torts embraced this traditional view of proximate cause (scope of liability) by excluding foreseeable reasonable risks from the scope of negligence liability, imposing liability only for unreasonable tortious risks. This is the harm within the tortious risk standard -- HWTRS.
But is there also economic justification for the HWTRS? Is it also welfare enhancing? Leading scholars in the field, like Robert Cooter and Ariel Porat, have argued that the HWTRS is inefficient. Efficiency, they argue, requires that liability should be imposed on all foreseeable harms that were considered by the court, without excluding reasonable harms, and therefore the Third Restatement’s HWTRS, which provides otherwise, is inefficient.
In response, this article provides the missing economic explanation for the desirability of HWTRS with respect to reasonable risks. The exclusion of reasonable risks from the scope negligence liability by the HWTRS is welfare-enhancing because these reasonable risks often involve “externalized benefits” -- social benefits that actors disregard because they do not benefit from them. As the economic aim of tort law is to internalize externalities, it should also internalize the benefits of reasonable risks, to avoid over-deterrence. The HWTRS, this article shows, does exactly that -- it internalizes the externalized benefits of reasonable risks. Moreover, this "internalized-benefits analysis" provides additional economic support for the exclusion, by the HWTRS, of other kinds of risks from the scope of liability, including unforeseeable and background risks.
The proposed "internalized-benefits analysis," though, also draws the lines and limits of the efficiency of the HWTRS in excluding different kinds of risks from the scope of liability. Another insight of this analysis is that the iconic Hand Formula, the cornerstone of economic analysis of tort law, should be limited to determining whether the actor was negligent and should not be employed to determine the scope of liability.
Tuesday, May 9, 2017
John Goldberg & Henry Smith have posted to SSRN Wrongful Fusion: Equity and Tort. The abstract provides:
Equity and Tort appear to be strangers. Beyond historically making equitable relief available in some cases, equity did not intervene in tort law to the extent it did in contract and some aspects of property. And yet substantive equity focuses on wrongful conduct and affords persons the opportunity to seek remedies for such conduct through the courts. Are there ‘equitable wrongs’, and, if so, how if at all do they differ from torts? We focus on a particular function loosely associated with historic equity jurisdiction: equity supplements the law where it fails to address problems that are difficult to handle on the same ‘level’ on which they arise. In situations of conflicting rights, party opportunism, and interacting behavior, it is difficult to formulate solutions that do not make reference to the ordinary (primary level) set of rights and rules. Thus, it is often more effective to frame ‘abuse of rights’ in terms of what one can do with rights rather than formulate the right to make it resistant to abuse.
We distinguish three scenarios at the intersection of equity and tort:
(i) tort law itself contains a second-order element to deal with problems such as coming to the nuisance;
(ii) equity solves an inadequacy of tort law, such as by reformulating privity, which is then incorporated into tort law going forward; and
(iii) equity maintains a limited but open-ended capacity to counteract inadequacies of tort law, especially involving hard-to-foresee manipulation of rules and conflicts of rights.
With the increasing fusion of law and equity, it has been difficult to maintain this second-order equitable function, but nowhere more so than at the equity-tort interface. Many of the interventions of equity, especially into areas of wrongful interference, invite redescription as torts, and have in fact induced courts to recognize new torts, for better and worse. On our account, this reformulation into tort is appropriate only where a problem is amenable to delineation in terms of general rights and fails where a degree of open-endedness is necessary to deal with party opportunism and new types of conflict. We also consider the diffusion of ‘flattened’ equitable notions into primary-level tort law, often in the form of balancing tests, which have in many ways rendered tort less coherent, stable, and law-like than is desirable.
Thursday, May 4, 2017
Lawrence Zacharias has posted to SSRN Justice Brandeis and Railroad Accidents: Fairness, Uniformity and Consistency. The abstract provides:
The aim of this essay is not to revisit Erie, but rather to show how Brandeis’s underlying concerns in Erie evolved over 20 years in the realm of deciding railroad accident cases, particularly under the Federal Employers’ Liability Act of 1908 (“FELA”). Brandeis’s characteristic style in introducing so many of these opinions seems to indicate that he had the intertwined problems of uniformity and consistency in mind long before he arrived at Erie. His first three opinions, including his dissent in Winfield, showed him concretely what was wrong with relying on the courts to smooth interstate regulation under the rubric of “uniformity.” Over the next two decades FELA provided him with a useful laboratory in which he tweaked the judicial processes of the states to render their litigation “consistent.” Once he perceived consistency, he gained confidence that a system of coordinated state-centric reforms could produce the kinds of regulatory uniformity that the national economy required and that the administration of law by state courts, and not some unifying federal common law, could best serve the nation.
Friday, April 28, 2017
Ronen Avraham and Kim Yuracko have posted to SSRN Torts and Discrimination. The abstract provides:
Current tort law contains incentives to target individuals and communities based on race and gender. Surprisingly, the basis for such targeting is the seemingly neutral use of three different race- and gender-based statistical tables (for wages, life expectancy, and worklife expectancy) which, when used in tort damage calculations, result in a great disparity between damages awarded to whites versus blacks and men versus women. Thus, tort law’s remedial damage scheme perpetuates existing racial and gender inequalities by compensating individuals (especially children) based on their race and gender. Even worse, tort law creates ex-ante incentives for potential tortfeasors to engage in future discriminatory targeting of women and minorities. We provide the first full account of courts' existing discriminatory practices. We then address the deficiencies in the non-blended tables that courts use (tables that use race and gender as discriminating factors) and the reasons behind their continued use. We show how the various theories of tort law (corrective justice, distributive justice, and economic efficiency) have contributed to a misunderstanding of the proper damages calculation and illustrate how the very same theories can be used to engender a change in the current praxis. We then challenge the conventional wisdom that the use of race- and gender-based tables is justified on efficiency grounds, noting fatal flaws inherent in the tables, in how they are used in courts to calculate damages for individuals, and in the incentives they create. We reveal that similar discriminatory practices ironically exist in federal law, such as the Americans with Disabilities Act, the National Childhood Vaccine Injury Act, and even Title VII – whose goal is to combat gender and race discrimination. Finally, we propose a feasible, low-cost, logical solution that pushes toward a more efficient and less discriminatory tort law remedial system: courts should immediately terminate their use of non-blended tables.
“If the injured child were born to a mixed couple but looks black, like Barack Obama, I would use black tables [in the calculation of damages I present to the jury]. However, if he is educated, and his life style is similar to the average typical white, then I would be inclined to use white tables. It is all a matter of common sense.”
Tuesday, April 25, 2017
Andrea Curcio has posted to SSRN Institutional Failure, Campus Sexual Assault and Danger in the Dorms: Regulatory Limits and the Promise of Tort Law. The abstract provides:
Data demonstrates the majority of on-campus sexual assaults occur in dorm rooms. At many colleges, this fact receives little, if any, attention. This article discusses how schools' failure to raise awareness about, and develop risk reduction programs for, dorm-based assaults is another example of long-standing institutional failures when it comes to addressing campus sexual assault. Ignoring where most on-campus assaults occur provides students with a false sense of security in their dorms, limits the efficacy of bystander intervention programs, and results in scant attention and research directed at the efficacy of dorm-based awareness and risk-reduction efforts. This article suggests that just as Title IX claims have forced colleges to deal with how they handle sexual assault reports, negligence claims may motivate schools to address the issue of dorm-based assaults.
This article proposes framing claims against colleges for dorm-based campus sexual assault in a way that shifts the narrative from that of a few "bad boys" to one of institutional failure - a failure illustrated by schools' turning a blind eye to what is happening in their dorms. The article explores how this framing supports conceptualizing schools' duty to dorm residents based upon schools' superior knowledge about where the majority of assaults occur and their ability to exercise control over student living space. It suggests that tort negligence claims will bring attention to dorm-based assaults, and while certainly not solving the multi-faceted campus sexual assault problem, the threat of these claims may result in the development of additional effective campus sexual assault risk reduction efforts.
Friday, April 21, 2017
Kim Yuracko & Ronen Avraham have posted to SSRN Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages. The abstract provides:
In 2011, a young couple eagerly expecting the birth of their first child moved into an apartment in Brooklyn, New York, excited to have a new home for their growing family. Their child, a son, was born healthy soon thereafter. One year later, however, the couple received devastating news. A routine medical exam had detected lead in their young son’s blood. It turned out that the dust from lead paint in their new home had been quietly poisoning their baby. The family quickly moved out, but permanent damage to the baby’s central nervous system had been done. Over the next several years he would manifest significant cognitive delays as well as severe social and emotional impairments. The baby’s mother sued and the landlord was found negligent.
In calculating damages, the critical question for the jury was how much would this young child have earned over the course of his life had he not become injured. In answering this question, experts for both the plaintiff and the defendant took into consideration, albeit to different extents, the fact that the baby was Hispanic and used this fact to offer lower damage estimates than they would have had the baby been white. Relying on race-based data to calculate tort damages is, after all, standard practice. The only thing unusual about the case was that the judge, Jack Weinstein, of the Eastern District of New, refused to allow it.
Monday, April 17, 2017
Sunday, April 16, 2017
Wednesday, April 12, 2017
Nora Engstrom has posted to SSRN Retaliatory RICO and the Puzzle of Fraudulent Claiming. The abstract provides:
Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.
Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.
Friday, April 7, 2017
Cristina Tilley has posted to SSRN Tort Law Inside Out. The abstract provides:
For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.
This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement.
Tort law’s state goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community – closed and open – can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. A survey of American tort cases confirms that courts have been fluctuating intuitively between local morality norms and national efficiency norms for decades, without fully acknowledging or operationalizing this practice.
Pivoting from theory to practice, the Article suggests that tort law should embrace and refine its ability to toggle between local morality and national efficiency. The Article briefly sketches how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms – and therefore liability – would be expected to vary within adjudicative communities. Making this normative toggle explicit would both enhance the internal integrity of tort law and improve tort law’s external standing relative to other bodies of law such as the Constitution and federal statutes. Moreover, the Article concludes, understanding tort liability as an expression of particular community values might prevent the constitutional override of injury verdicts arising from protected behavior such as gun ownership or speech.