Tuesday, February 9, 2016
Doug Richmond has posted to SSRN Fraud and Misrepresentation Claims Against Lawyers. The abstract provides:
When lawyers allegedly err in the course of clients’ representations, or, worse, allegedly engage in deliberate misconduct of some sort, aggrieved clients may sue for professional negligence, commonly described as legal malpractice, or for breach of fiduciary duty. A lawyer who treats a client dishonestly may face liability on one of these theories. Lawyers’ alleged dishonesty in their practices exposes them to potential liability to third-parties as well. For example, if a lawyer knowingly and substantially assists or encourages a client’s wrongdoing, those who are harmed by the client’s misconduct may sue the lawyer in tort for allegedly aiding and abetting the client’s misdeeds. Yet, while the consequences of lawyers’ alleged dishonesty should be apparent, lawyers seldom think themselves to be at risk for liability based on fraud or misrepresentation arising out of clients’ representations. This perspective probably traces at least in part to common notions of litigation practice, where parties generally cannot base fraud claims on opposing lawyers’ misrepresentations. Any comfort lawyers derive from this impression, however, overlooks three key points. First, lawyers may be sued for fraud or negligent misrepresentation by adversaries in litigation in some instances, as where, for example, they knowingly misrepresent material facts in negotiations. Second, transactional practice is such that business lawyers are natural targets of fraud and misrepresentation claims by third-parties based on false statements and failures to disclose information. Third, clients may sue their own lawyers for alleged fraud and negligent misrepresentation in appropriate cases.
In fact, fraud and misrepresentation are common theories of liability in suits against lawyers by both clients and third-parties. These claims pose an array of challenges for the targeted lawyers. Fraud claims may support punitive damage awards in cases where such damages would not otherwise be recoverable, or open the door to discovery that a court might refuse if only the lawyer’s professional negligence was in dispute. Because the presence of fraud normally is a question of fact, well-pleaded fraud claims are difficult for defendants to defeat at the motion to dismiss stage. Similarly, a claim for negligent misrepresentation is ordinarily one for a jury, unless the undisputed facts are so clear as to permit only one conclusion, thus devaluing a motion to dismiss as a defense tactic in many cases. Again because fraud and negligent misrepresentation claims are fact-intensive, a plaintiff may be able to avoid summary judgment and, by thus forcing the defendant to weigh the risk of trial, achieve a favorable settlement. Fraud and misrepresentation claims are particularly valuable to plaintiffs who cannot establish the existence of an attorney-client relationship with a lawyer-defendant because they avoid the general requirement of privity for liability based on professional negligence.
This Article examines lawyers’ and law firms’ potential civil liability for fraud and negligent misrepresentation. Part II provides an overview of the common law causes of action available to potential plaintiffs. After exploring these causes of action, it examines the role that rules of professional conduct play in establishing a standard of care or conduct, or the reasonableness of a plaintiff’s reliance on a lawyer’s misrepresentations. Part III discusses four illustrative negligent misrepresentation and fraud cases against lawyers, two arising out of litigation matters and two arising out of lawyers’ transactional practices. Finally, Part IV offers lawyers some practical advice on avoiding potential liability for fraud and negligent misrepresentations.
Monday, February 8, 2016
Bob Rabin has posted to SSRN Intangible Damages in American Tort Law: A Roadmap. The abstract provides:
This paper is meant to provide a succinct roadmap to the many pathways taken in providing recovery for intangible harm in tort. The paper was initially prepared for a comparative law conference, and in that setting, I assumed a lack of close familiarity with the historical origins and surprisingly broad expanse of recovery for intangible harm in American tort law. While succinctly presented, the present revised treatment, for those conversant with the US system, is meant to be comprehensive, addressing defamation and privacy, no-fault and tort reform, as well as the more conventional common law topics of intangible damages in cases of intentional and accidental harm.
Friday, February 5, 2016
Gijs Van Dijck (Tilburg University) has posted to SSRN Should Physicians Be Afraid of Tort Liability? Reviewing the Empirical Evidence. The abstract provides:
Do tort claims, or the fear of them, result in the adoption of practices aimed at protecting against tortious liability? Legislators, courts, and legal scholars often seem to think so, but is there empirical evidence to support this assumption? This article provides an answer to this question for the field of medical practice. An analysis of empirical studies on defensive medicine raises doubts as to whether the assumption holds true. The findings indicate that the empirical evidence is weak and that, if there is a concern about defensive practices, it seems to exist primarily in physicians’ minds. The results contribute to a better understanding of how tort law works, what effects it has on behaviour, and whether legal actors, especially at the intersection of law and medicine, should give credence to the defensive practices concern.
Tuesday, February 2, 2016
Alex Long has posted to SSRN The Lawyer as Public Figure for First Amendment Purposes. The abstract provides:
Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can also see more clearly some of the complexities the legal profession now faces and the sometimes uncertain nature of its role.
Monday, February 1, 2016
Anita Bernstein has posted to SSRN Gender in Asbestos Law: Cui Bono? Cui Pacat?. The abstract provides:
The large literature about liability for asbestos exposure has, for the most part, omitted gender. This omission matters. Men and women who sought redress in court fared very differently, and the two genders have shared unequally in the spoils of asbestos litigation and regulation. Here I ask: Cui bono? Cui pacat? In other words — English words — this Article investigates who has gained from and who has paid for the transfer of wealth put in motion by asbestos law.
Friday, January 29, 2016
Thursday, January 28, 2016
Anita Bernstein has posted Voluntary Recalls to SSRN. The abstract provides:
The voluntary recall of a defective product, whereby a manufacturer or seller encourages purchasers to return a defective item, looks like a much happier phenomenon than what it fends off: injury for the buyer, liability for the seller, burdens on regulators. Acknowledging these advantages, this Article reviews other aspects of the voluntary-recall fix. First, the term recall has no consistent definition or usage in the United States Code and the Code of Federal Regulations. Second, product recalls are not really voluntary: sellers and buyers alike do not make informed, uncoerced choices to participate in this remedy. The Article concludes with two sets of recommendations to reform the law of product recalls, the first modest and the second ambitious.
Tuesday, January 19, 2016
Erin Sheley (Calgary) and Ted Frank (Competitive Enterprise Institute) have posted to SSRN Prospective Injunctive Relief and Class Action Settlements. The abstract provides:
Despite much controversy and criticism, the class action is alive and well. In particular, the injunctive remedy, requiring the defendant to change some aspect of its business practice, has become a common feature of class action settlements. This article explores a taxonomically distinct remedial category of injunction that has, as of yet, not generally been considered by courts and scholars as such: the prospective injunctive remedy. We demonstrate how the prospective injunctive remedy operates and argue that, in light of the special policy and legal problems it creates, courts should observe a presumption against approving settlements that contain provisions for prospective injunctive relief. In Part I we show how the parties to a class action have, in general, no incentive to benefit either absent class members or society at large and therefore require courts to police them to ensure justice. In Part II we describe the public law underpinnings of prospective injunctive relief and provide three case studies of consumer class actions that demonstrate how and why courts fail to accurately police this relief in the private law context. We compare the approved relief in these cases to the regulatory regimes they disrupt to argue that courts in this way allow class action litigation to produce bad public policy. In Part III we explore the ways in which these prospective remedies likewise produce bad law: namely, through the inappropriate creation of regulatory preemption and the potential violations of attorney-client fiduciary duty, the adequacy requirement of Rule 23(a)(4), and constitutional standing requirements. In Part IV we consider counterarguments and in Part V we conclude.
Via Stier/Mass Tort Profs
Thursday, January 14, 2016
Jay Feinman has posted to SSRN The Restatement of the Law of Liability Insurance as a Restatement. The abstract provides:
This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.
This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.
The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.
Friday, January 1, 2016
Symeon Symeonides has posted his 29th annual choice-of-law survey to SSRN. The abstract provides:
This is the Twenty-Ninth Annual Survey of American Choice-of-Law Cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws, and is intended as a service to fellow teachers and to students of conflicts law, both inside and outside the United States.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2015, and posted on Westlaw by December 31, 2015. Of the 1,188 appellate cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law—and, particularly, choice of law. The following are some of the cases discussed:
--Three Supreme Court decisions, the first declaring unconstitutional all state laws against same-sex marriages, the second interpreting the commercial activity exception of the Foreign Sovereign Immunity Act, and the third further constricting the range of state law in matters relating to arbitration;
--A Second Circuit decision resuscitating for now that court’s theory that corporations are not accountable for international law violations under the Alien Tort Statute (ATS), and two decisions holding that the violations at issue did not “touch and concern the territory of the United States . . . with sufficient force”;
--Two cases refusing to allow a Bivens action for an extraterritorial violation of the Fourth Amendment and an intra-territorial violation of the Fifth Amendment, respectively, and several cases upholding the extraterritorial application of criminal statutes;
--Several cases refusing (and some not refusing) to enforce choice-of-law and forum-selection or arbitration clauses operating in tandem to deprive employees or consumers of their otherwise unwaivable rights;
--A New York Court of Appeals case explaining why a New York choice-of-law clause in a retirement plan did not include a conflicts rule contained in New York’s substantive successions statute;
--Several cases involving the “chicken or the egg” question of which law governs forum-selection clauses;
--A New Jersey decision ruling on actions for “wrongful birth” and “wrongful life,” and several other cases arising from medical malpractice, legal malpractice, deceptive trade practices, alienation of affections, and, of course, traffic accidents, along with products liability cases involving breast implants and pharmaceuticals;
--The first case granting divorce to a spouse married under a “covenant” marriage in another state, and a Texas case recognizing a Pakistani talaq;
--An Alabama Supreme Court decision refusing to recognize a Georgia adoption by a same-sex spouse on the ground that the Georgia court misapplied its own law regarding subject matter jurisdiction;
--A Delaware case holding that the Full Faith and Credit clause mandates recognition of a sister-state judgment that has recognized a foreign judgment, and does not allow examination of the underlying foreign judgment; and
--A case recognizing a foreign judgment challenged on the ground that the foreign country did not provide impartial tribunals or procedures compatible with due process.
Thursday, December 24, 2015
Veterans Law Review
Call for Submissions
Wednesday, December 23, 2015
Earlier this year the Rutgers Center for Risk and Responsibility hosted a conference on the ALI's Restatement of Liability Insurance (Tom Baker and Kyle Logue, Reporters). The Rutgers University Law Review has now published articles from the conference. Torts and liability insurance being intertwined, there is a strong representation of torts scholars in the lineup, including Ken Abraham, Mark Geistfeld, and Victor Schwartz.
Monday, December 14, 2015
Doug Rendleman has posted to SSRN The Triumph of Equity Revisited: The Stages of Equitable Discretion. The abstract provides:
Every judge’s discretion includes equitable discretion. For a symposium in Steve Subrin’s honor, this article examines equitable discretion beginning with Steve’s classic article How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective.
In How Equity Conquered Common Law, Steve charged that Equity was amorphous, unfocused, and diffuse. This article analyzes equitable discretion in depth to evaluate Steve’s argument, to discover times when a judge needs equitable discretion, to develop principles of confinement, and to prune excesses.
Equity can be analyzed under three headings: substantive, procedural, and, this article’s main topic, remedy. A judge’s equitable discretion may vary depending on the source of the plaintiff’s substantive right, whether found in constitution, statute, or common law. Equitable discretion includes declining a remedy altogether, choosing the remedy, and shaping the remedy.
This article reviews the origins and development of a judge’s equitable discretion both as a technique to adjust the margins and as an ethical default. It summarizes a lawsuit’s stages and equitable decision points: pleadings, motions, discovery, substantive law, place of trial, interlocutory equitable relief, injunction bond, equitable defenses of laches and unclean hands, jury trial, injunction terms, attorney fees, contempt, stay of an injunction on appeal, collection of a money judgment, and the appeal including the scope of review. It reviews the judge’s equitable discretion for adjudicating its main remedy, an injunction, as well as for other Equitable remedies - receiver, specific performance, constructive trust, salvor, rescission-restitution, legal and equitable restitution, subrogation, and declaratory judgment.
The tension between specific, predictable rules and flexible justice for a discrete dispute is inevitable and universal. This article seconds some of Steve’s points; it favors administering the judge’s equitable discretion with principles, standards, and rules except when the judge must consider context to fashion a specific non-precedential remedy for a lawsuit’s facts and circumstances.
Tuesday, December 8, 2015
Eric Lindenfeld & Jasper Tran have posted to SSRN Strict Liability and 3D-Printed Medical Devices. The abstract provides:
Despite the strong promise that 3D printing holds for the future healthcare, there are critical concerns, and deep unknowns regarding the framework for potential tort liability. And while there has been only a single product liability lawsuit involving a 3D-printed product to date, there are tremendous concerns that 3D printing will present significant safety concerns for the first wave of consumers. While an application of traditional product liability principles may seem to be straightforward, those familiar with the framework realize that an application of those principles to 3D printing is complicated and unique. The question then exists – who is the manufacturer of a product created by a 3D printer as contemplated by the Restatement? Could a hospital be considered a manufacturer of a defective 3D-printed product or as “engaging in the business” of selling the product?
3D printing, in effect, will serve as one of the first technological advances to disrupt the product liability regime first envisioned, and eventually instituted by Justice Traynor. To avoid such an undesirable result, it is imperative that courts make a concerted effort to redefine the boundaries of product liability law to account for new technologies and to make room for liability to those supply chains which do not engage in traditional manufacturing. More specifically, the most realistic approach to the problem would be for courts to uniformly hold software designers responsible for the defects in 3D-printed products. Hospitals, or 3D printing manufacturers, should not be held strictly liable for any defect in the medical product.
Prior case law dealing with the development of product liability generally, and the line of cases which has established the denial of strict, product liability against software designers, support strict liability against software designers. Other circuit courts’ opinions that entertained the idea of holding software designers liable for defects in their products have had it correct. Ultimately, an imposition of strict liability against designers of software does not necessarily run against any of the policy considerations of strict liability and apportionment of fault, and will place the burden upon those who are in the best position to prevent the injury in the first place.
Monday, December 7, 2015
Nicholas McBride (Cambridge) has posted to SSRN The Humanity of Private Law-Chapter1. Building Blocks. The abstract provides:
In this draft of the first substantive chapter from The Humanity of Private Law, I set out a (more or less) complete grammar of private law, explaining how fundamental private law concepts like right, duty, obligation, wrong, liability, power, disability, interest, and property relate to each other, while noting the occasions when the ways in which these concepts are used will be affected by what account of private law one endorses – so that, for example, the notion of someone having a ‘right to’ something is indispensable under a Kantian account of private law, while non-Kantians need not make use of such an idea and should not, if they want to avoid confusion.
Among the cases discussed in this chapter are Hedley Byrne v Heller, Spartan Steel & Alloys Ltd v Martin, Bradford v Pickles, Armory v Delamirie, Vincent v Lake Erie, and Rylands v Fletcher. Among the issues discussed are: (1) the nature of legal duties, and what makes a particular legal duty a private law duty; (2) the nature of the rights set out in the European Convention on Human Rights; (3) the distinctions between different kinds of private law liabilities, and private law powers; (4) whether there is a duty to pay damages to the victim of one’s wrong, or make restitution to someone at whose expense you have been unjustly enriched; (5) the proper analysis of awards of damages in lieu of an injunction; and (6) the nature of property, interests in property, and rights arising out of having an interest in property.
Friday, November 20, 2015
Benjamin Shmueli has posted to SSRN Legal Pluralism in Tort Theory: Balancing Instrumental Theories and Corrective Justice. The abstract provides:
Unified-monistic theories of tort law focus on a single goal of tort law, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixed-pluralistic theories attempt to produce a balance between various goals of tort law by integrating several of the considerations underlying the different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. The present article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law, that is, within the framework of tort law theory.
Starting from a position of support for the mixed-pluralistic thesis, the advantages offered by current mixed-pluralistic approaches are identified, and a new mixed-pluralistic approach is proposed which is adapted to the multitude of significant changes that have affected contemporary common tort law in recent years. This new approach divides (mostly negligence) issues into two principal categories on the basis of the profile of the defendant and the nature of his tortious act, concurrently striking a balance between the various goals of tort law, as the situation warrants. Thus the suggested mixed-pluralistic approach offers a new and actual balance between corrective justice and instrumental theories — that is, distributive justice and optimal deterrence. Hence, it actually offers a balance between deontological theories, that are interest in the moral aspect, and utilitarian theories, that are more interested in the consequentialist outcome of the tort action. The proposed approach will be implemented through the presentation of a number of tort issues, some traditional and classic and others modern and novel.
The suggested approach challenges the study of both law and economics and corrective justice by trying to delimit their dominance as sole goals. It also corresponds with other pluralistic approaches to the study of torts.
Wednesday, November 18, 2015
Stephen Sugarman has posted to SSRN Misusing the "No Duty" Doctrine in Torts Decisions: Following the Restatement (Third) of Torts Would Yield Better Decisions. The abstract provides:
Courts misuse the “no duty” doctrine in torts cases when they really mean there has been “no breach” of the duty of care. "No duty” should be reserved for cases where a defendant can escape tort liability even if the defendant caused harm through unreasonable conduct. Whether the risk was foreseen or not does not go to “duty.” It is relevant to “breach.” Relying on the “duty” doctrine takes cases away from juries, sometimes inappropriately. The Restatement (Third) of Torts gets this right.
Tuesday, November 17, 2015
Monday, November 9, 2015
Craig Allen (University of Washington) has posted to SSRN Investigations and Litigation Follow S.S. El Faro Tragedy. The abstract provides:
On October 1, 2015, the U.S. flag cargo ship El Faro sank with all hands in the Atlantic Ocean east of The Bahamas, during Hurricane Joaquin. The casualty is under investigation by the U.S. Coast Guard and the National Transportation Safety Board. In response to claims by families of some of the 33 crew member, the vessel owner invoked the U.S. Shipowner Limitation of Liability Act. Events leading up to the tragedy will be given strict scrutiny in the coming months.
Friday, November 6, 2015
Antonin I. Pribetic (Himelfarb Proszanski) and Marc J. Randazza (Randazza Legal Group) have posted to SSRN 'War of the Words': Differing Canadian and American Approaches to Internet Defamation. The abstract provides:
This article provides a comparative analysis of differing approaches to Canadian and American internet defamation law. It begins with a discussion of the elements of a cause of action and available defences. It then canvasses jurisdiction and choice of law issues. Following a review of notice requirements and limitation periods, it provides the mechanics for unmasking anonymous defendants – John Doe applications, Norwich Pharmacal orders, injunctive relief. Finally, the paper outlines the key legal issues in the recognition and enforcement of Canadian and American cyberlibel judgments abroad, within the context of the libel tourism debate.