Friday, February 24, 2017
Saul Levmore & Frank Fagan have posted to SSRN Semi-Confidential Settlements in Civil, Criminal, and Sexual Assault Cases. The abstract provides:
Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and at much lower cost to the legal system. The argument does not transfer well to most criminal cases, where the defendant might pay not to avoid other claims but to avoid incarceration, which offers no direct benefit to the settling victim. It is further complicated in sexual assault cases, where the plaintiff might settle too quickly in order to protect her privacy. The discussion works toward the idea that in some settings semi-confidentiality – the disclosure of the substance of settlement but not the magnitude of monetary payments – is superior to both secrecy and transparency. The right amount of confidentiality is a function of the parties’ interest in privacy, the likelihood that the wrongdoing is part of a pattern unknown to the settling plaintiff, and the accuracy of the litigation process that settlement seeks to bypass. We are able to identify cases where law ought to allow (even) criminal cases to be settled privately and confidentially, and also cases where even sexual assault victims should be steered away from confidential settlement and toward translucency.
Tuesday, February 14, 2017
Monday, February 13, 2017
Does Evidence of Common Insurance of the Defendant and Defense Expert Demonstrate Expert Bias in Med Mal Cases?
Marc Ginsberg has posted to SSRN Does Evidence of Common Insurance Demonstrate Relevant Expert Witness Bias in Medical Negligence Litigation?. The abstract provides:
Does "common insurance" shared by the defendant-physician and the medical expert-witness establish an expert bias? In the past ten to fifteen years, the common insurance question has received attention by the state courts. It has been well understood that "evidence" of the presence or absence of liability insurance is simply inadmissible to prove fault pursuant to the Federal Rule of Evidence 411. Rule 411, however, is not a complete bar to admissibility and allows the trial court to admit evidence of liability insurance to prove a witness's bias or prejudice. This paper explores the various "models" of common insurance evidence, the theory of common insurance "bias" and the professional risk potentially assumed by expert witnesses who give false testimony.
Tuesday, February 7, 2017
Mike Wells has posted to SSRN Harmonizing European Tort Law and the Comparative Method: Basic Questions of Tort Law from a Comparative Perspective. The abstract provides:
This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.
This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.
Monday, January 30, 2017
The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States. It offers several advantages to those submitting scholarship. First, your work will be reviewed by peers. This is particularly important for more technical pieces. Second, there is no submission cycle. Articles can be submitted at any time. Third, the Journal routinely publishes high-quality articles. The two issues to be published in 2017 are great examples. Volume 10, Issue 1 will publish articles from the Torts and Compensation Systems Section's panel at the AALS Annual Meeting. Covering "Gun Regulation and Private Law," authors include Leslie Kendrick (UVa), Adam Scales (Rutgers), and Steve Sugarman (Berkeley). The issue will also contain an article by Greg Keating (USC). Volume 10, Issue 2 will feature a symposium on the Restatement of the Law Third: Intentional Torts to Persons. Reporters Ken Simons (UC Irvine) and Jonathan Cardi (Wake Forest) will respond to commentary from Anita Bernstein (Brooklyn), Ellie Bublick (Arizona), Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Mike Green & Bill Powers (Wake Forest/Texas), Nancy Moore (Boston University), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Steve Sugarman (Berkeley), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).
Submission information is available here. The Journal has adopted a policy that authors will have either a decision or an update within 45 days of submission.
Sunday, January 29, 2017
Lauren Sterrett has posted to SSRN Products Liability: Advancements in European Union Product Liability Law and a Comparison between the EU and U.S. Regime. The abstract provides:
In recent years, the product safety regime in the European Union (“EU”) has been amended to provide increased stability for producers and more protection for consumers. The framework seeks to balance the interest of consumers in having access to safe products with the interest of producers in avoiding costly litigation due to differing national standards. There are currently three prominent EU directives designed to protect the health and safety of consumers. These three directives are the Product Liability Directive (the “Directive”), the European General Product Safety Directive (the “GPSD”), and the Product Warranty Directive.1 This paper will focus on the impact of the Directive and the GPSD in the EU and will compare these two directives with product liability law in the United States (“U.S.”). This paper will also explore the newly proposed Product Safety and Market Surveillance Package (the “Package”), expected to replace the GPSD as soon as 2015, and the impact that the Package will have on product liability law in the EU.
The combination of the Directive and the GPSD provide a comprehensive scheme for product liability law in the EU. When compared with U.S. product liability law, these two directives achieve greater harmonization across member states than the current U.S. product liability regime. Although both the EU and the U.S. have similar product liability laws, the current EU regime often affords consumers greater access to redress and maintains strict requirements in regards to product labeling. The proposed Package will introduce even more harmonization into the EU, making it harder on economic operators who sell or produce defective products to escape liability. However, the EU product liability regime is not without problems and there are multiple areas in which the U.S. product liability framework offers better alternatives and provides less confusion for manufacturers and consumers.
Wednesday, January 25, 2017
Scott Hershovitz has posted to SSRN The Search for a Grand Unified Theory of Tort Law. The abstract provides:
Thursday, January 12, 2017
Monday, January 9, 2017
John Goldberg & Ben Zipursky have posted to SSRN Hohfeldian Analysis and the Separation of Rights and Powers. The abstract provides:
At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III.
Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.
(Via Solum/LTB, where it is the Download of the Week)
Tuesday, January 3, 2017
Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs. The abstract provides:
This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.
Wednesday, December 14, 2016
Agnieszka McPeak (Toledo) has posted to SSRN Sharing Tort Liability in the New Sharing Economy. The abstract provides:
The new sharing economy is forcing policymakers to reexamine current legal structures for several highly regulated industries, including taxi services. But in addition to regulation, tort law’s ability to adapt to the new sharing economy is an equally important concern, and one that few scholars have examined to date.
Although many sharing-economy companies, like ridesharing service Uber, merely purport to connect individuals to each other for the purposes of exchanging specific services, many of these companies are monetized, for-profit businesses that exert some level of control over the underlying commercial transaction. When an individual service provider, like an Uber driver, commits a tort, the victim may be under-compensated if that individual provider alone is liable. Holding the sharing-economy company vicariously liable may be appropriate for ensuring fairness for tort victims.
Fortunately, pre-existing tort principles — particularly vicarious liability concepts of respondeat superior, liability for independent contractors, and joint enterprise liability — already provide the framework for applying retrospective common law remedies in the sharing-economy context. Even though sharing-economy companies challenge the status quo with their innovative and non-traditional business approaches, pre-existing principles suffice to clarify tort liability in this new context. By liberally using the basic analysis and underlying policy rationales of existing vicarious liability concepts in particular, courts can ensure fairness under modern tort law, and policymakers can proceed with a holistic understanding of how retrospective remedies are well-poised to address some of the unique issues raised by the new sharing economy.
She's also blogging at Prawfs.
Tuesday, December 13, 2016
Benjamin McMichael, Lawrence Van Horn, and Kip Viscusi (all Vanderbilt) have posted to SSRN Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk. The abstract provides:
State apology laws offer a separate avenue from traditional damages-centric tort reforms to promote communication between physicians and patients and to address potential medical malpractice liability. These laws facilitate apologies from physicians by excluding statements of apology from malpractice trials. Using a unique dataset that includes all malpractice claims for 90% of physicians practicing in a single specialty across the country, this study examines whether apology laws limit malpractice risk. For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.
Monday, December 12, 2016
Greg Keating has uploaded to SSRN to SSRN 6 p apers:
Tuesday, December 6, 2016
Ryan Abbott (Surrey Law/UCLA Med) has posted to SSRN Allocating Liability for Computer-Generated Torts. The abstract provides:
Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or police, computers are taking over a growing number of tasks once performed by people. As this Artificial intelligence is part of our daily lives. Whether working as taxi drivers, financial analysts, or police, computers are taking over a growing number of tasks once performed by people. As this occurs, computers will also cause the injuries inevitably associated with these activities. Accidents happen, and now computer-generated accidents happen. The recent fatality caused by Tesla’s autonomous driving software is just one example in a long series of “computer-generated torts.”
Yet hysteria over such injuries is misplaced. In fact, computers are, or at least have the potential to be, substantially safer than people. Self-driving cars will cause accidents, but they will cause fewer accidents than human drivers. Because automation will result in substantial safety benefits, tort law should encourage its adoption as a means of accident prevention.
Under current legal frameworks, manufacturers of computer tortfeasors are likely strictly responsible for their harms. This article argues that where a manufacturer can show that an autonomous computer is safer than a reasonable person, the manufacturer should be liable in negligence rather than strict liability. This would essentially treat a computer tortfeasor as a person rather than a product. It would create a powerful incentive to automate when it would reduce accidents, and it would continue to reward manufactures for improving safety.
In fact, principles of harm avoidance suggest that once computers become safer than people that human tortfeasors should no longer be judged against the standard of the hypothetical reasonable person that has been employed for hundreds of years. Rather, individuals should be compared to computers. To appropriate the immortal words of Justice Holmes, we are all “hasty and awkward” by comparison.
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