Monday, November 20, 2017
Chad Marzen has posted to SSRN The Pollution Exclusion and Carbon Monoxide. The abstract provides:
Approximately 400 individuals die each year and an additional 4,000 individuals are hospitalized annually in the United States due to unintentional carbon monoxide exposure. For the past several decades, insurance policies have generally included a pollution exclusion. This article is intended to contribute to the literature by examining pollution exclusion cases that involved carbon monoxide exposure.
A majority of courts uphold the validity of the pollution exclusion in insurance policies to bar coverage for personal injuries resulting from carbon monoxide. The first part of this article discusses the majority rule and the various arguments courts have utilized to uphold the exclusion. A minority rule has also emerged that the pollution exclusion does not apply to cases involving carbon monoxide. The second part of this article examines the arguments courts have utilized in ruling that carbon monoxide is not a “pollutant.”
In the wake of conflicting guidance from the courts on the applicability of the pollution exclusion in cases of carbon monoxide exposure, the final part of this article proposes that as a matter of public policy states amend their respective insurance codes to require that insurance policies specifically provide coverage for personal injuries involving carbon monoxide exposure.
Wednesday, November 8, 2017
Bob Rabin has posted to SSRN Pathways to Auto Safety: Assessing the Role of the National Highway Traffic Safety Administration. The abstract provides:
The Motor Vehicle Safety Act directs the National Highway Traffic Safety Administration (NHTSA) to promulgate and enforce vehicle safety regulations, issue vehicle and component recalls, and conduct research and gather data to support its safety mission. Published twenty-five years ago, Jerry Mashaw & David Harfst’s study, The Struggle for Auto Safety, offered a comprehensive critique of the agency’s performance through its early decades. The authors concluded that after an initial flurry of important rulemaking activity, extending through 1974, NHTSA’s record on the rulemaking front was marked by failed opportunities. Essentially, they concluded that the agency abandoned meaningful rulemaking after its early years and took a path of lesser resistance — resistance, in particular, from Congress, the courts and the auto industry — relying on inefficacious recalls, rather than rulemaking, as its principal regulatory strategy.
In this chapter of a collection of essays celebrating the career of Prof. Mashaw, I reassess their critique twenty-five years later. Reviewing NHTSA’s rulemaking and recall activities since 1990, I conclude that Mashaw and Harfst’s criticisms of NHTSA’s rulemaking performance remain largely valid. I am somewhat more optimistic, however, with regard to the potential for a robust recall program to improve auto safety—despite the agency’s substandard response, discussed in detail in my essay, to the GM ignition switch engine shutdown cases.
I surmise that if NHTSA were to receive adequate resources, adopt the necessary political will, and work towards a culture of “skeptical receptiveness” in its approach to the auto industry — undeniably big ifs — its recall program could become a vital and effective regulatory tool. To provide context, I also discuss the complementary roles that tort and no-fault liability might play.
Friday, November 3, 2017
Ellen Wertheimer & Mark Rahdert have posted to SSRN The Force Awakens: Tincher, Section 402A and the Third Restatement in Pennsylvania. The abstract provides:
In Tincher v. Omega Flex (2014), the Pennsylvania Supreme Court reached two important decisions regarding Pennsylvania product liability law. First, it overruled an earlier decision, Azzarello v. Black Brothers, Inc., which had mandated a bifurcated process for assessing product defects that required trial judges first to assess whether a product was potentially unreasonably dangerous before submitting the question of whether it was defective to the jury. Second, it rejected efforts by some Justices, federal courts and the defense bar to have the Court adopt the negligence-oriented principles of the American Law Institute’s Third Restatement of Torts: Product Liability. Instead, the Court reaffirmed Pennsylvania’s commitment to the strict product liability principles set in Restatement (Second) Section 402A. This article assesses the implications of the Tincher decision for the future development of product liability law in Pennsylvania and elsewhere. It explains the foundational principles of strict product liability that the decision affirms, discusses the Court’s establishment of a composite consumer expectation and risk-utility test for determining defects in product design, defends the Court’s commitment to modest and incremental common-law adjudication, and discusses the development of jury charges that are faithful to Tincher’s approach. The article also takes issue with attempts by the product liability defense bar to push post-Tincher adjudication toward a negligence-based framework that is inconsistent with the Court’s reaffirmation in Tincher of a doctrine of strict product liability.
This article will be published in Volume 27 of the Widener Law Journal. It is currently in draft form and should not be quoted without the permission of its authors.
Tuesday, October 31, 2017
Keith Hylton has posted to SSRN Deterrence and Aggregate Litigation. The abstract provides:
This paper examines the deterrence properties of aggregate litigation and class actions, with an emphasis on positive value claims. In the multiple victim scenario with positive value claims, in the absence of the class action device, the probability that an individual victim will bring suit falls toward zero with geometric decay as the number of victims increases. The reason is that the incentive to free ride increases with the number of victims. Deterrence does not collapse but is degraded. Undercompliance is observed, which worsens as the number of victims increases. Compliance is never socially optimal, and the shortfall from optimality increases with the number of victims. These results, which continue to hold even if victims anticipate being joined in a single forum, suggest a more nuanced and potentially more robust justification for the class action than has hitherto been provided. Implications for collusive settlements of class action litigation are discussed.
Monday, October 30, 2017
Nancy Moore has posted to SSRN her contribution to the JTL symposium on the Restatement of Intentional Torts to Persons. Entitled Restating Intentional Torts: Problems of Process and Substance in the ALI's Third Restatement of Torts, the abstract provides:
The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own Reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is currently ongoing. Rather than applaud or critique the specific choice the Reporters are making, I have chosen to discuss two broader concerns regarding the project. The first concern is that the piecemeal nature of assembling all the separate projects of the Third Restatement of Torts (including the review and adoption of different sections within Intentional Torts) has made the Intentional Torts Reporters’ task more difficult than it should have been and may contribute to an overall product that is flawed in important respects, primarily because of inconsistencies that cannot easily be corrected. The second concern is that the Intentional Torts Reporters have too often lost sight of the conceptual distinctions between intentional and nonintentional torts. Although I agree that these conceptual distinctions should not have driven the basic organization of the project, as was once suggested, I argue that the Reporters are making doctrinal decisions that further blur, rather than clarify, the boundaries between the intentional torts and other torts, primarily negligence.
Thursday, October 26, 2017
John Oberdiek has posted to SSRN the Introduction to Imposing Risk: A Normative Framework. The abstract provides:
This is the Introduction to Imposing Risk: A Normative Framework (Oxford University Press, 2017).
Human life has always been shadowed by risks like disease and natural disaster, but modern life is distinctively risky. In the first instance, today, risk utterly permeates life. The sheer variety and scope of risks that attend industrialized and industrializing societies are unique to them. Our agrarian and geographically dispersed ancestors did not face the risks that accompany the use of automobiles and high-speed transit, the mass production of goods and widespread use of chemicals, vast construction and public works projects, or the countless other risks to which we are exposed in our everyday lives. In light of the fact that risk is ubiquitous in modern life, it should be no surprise that sociologists have called ours a “risk society,” focused on containing the risks that modernization itself has created. This sociological fact implies a normative one that, in conjunction with the pervasiveness of risk, explains why modern life is distinctively risky: the risks we now face are morally cognizable. For they are, in the main, subject to our control – indeed, they are typically our creation. The risks that define modern life are therefore our responsibility. As they are largely imposed by people on people, they call for moral assessment. This book addresses some of the central questions stimulated by our contemporary practices of imposing risk.
Wednesday, October 25, 2017
Bob Rabin has posted to SSRN Dov Fox on Reproductive Negligence: A Commentary. The abstract provides:
This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case for a newly recognized tort of reproductive negligence that embraces all of these categories.
My commentary proceeds as follows. From a historical perspective, Part I attempts to locate his claim for recognition of a more expansive version of recovery for stand-alone intangible harm in currently accepted tort duties. From a liability perspective, while finding much to be admired in this proposed new theory of recovery, Part II questions whether it is workable to view reproductive negligence as a single pathway rather than three distinct routes to recognizing new tort rights. And finally, from a damages perspective, Part III draws on expansive themes in other areas of recovery for intangible harm to suggest additional foundational support for Fox’s effort to push the frontier of recovery for intangible harm into new territory.
Tuesday, October 24, 2017
Scott Hershovitz has posted to SSRN Treating Wrongs as Wrongs: An Expressive Argument for Tort Law. The abstract provides:
The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law.
In this essay, I argue that tort liability expresses the judgment that the defendant wronged the plaintiff. And I explain why it is important to have an institution that expresses that judgment. I argue that we need ways of treating wrongs as wrongs, so that we can vindicate the social standing of victims. Along the way, I consider the continuity between tort and revenge, and I suggest a new way of thinking about corrective justice and the role that tort plays in dispensing it. I conclude by sketching an agenda for tort reform that would improve tort’s ability to serve its expressive function.
I'm happy to say the piece will be published in issue 2017:2 of the Journal of Tort Law.
Monday, October 23, 2017
Tuesday, October 17, 2017
Lisa Laplante has posted to SSRN Human Torts. The abstract provides:
Human Torts is the first article to describe how ordinary municipal tort lawsuits in the United States provide essential remedies for human rights abuses. Despite the rising level of hate crimes, bullying, corporate malfeasance, and other private acts that result in great harm and can lead to civil litigation, American scholars have never explored how everyday tort claims grounded in purely domestic common law doctrine between private, non-state actors are in fact human rights claims even if never pleaded as such in U.S. courts. Framing tort litigation as a form of human rights protection may appear to be a novel aspirational proposal, but comparative law reveals that most countries in the world follow this horizontal approach. Strikingly, a close look at the genealogy of tort law indicates that the United States also once did the same. Only in the last half century has the focus on rights been eclipsed due to the imposition of an instrumental, economic account of tort law that seeks to balance the costs of human interactions at the risk of commodifying the value of life. In response, this Article proposes practical ways to reintegrate the rights perspective into tort law. In doing so, it presents a “progressive” view of torts in a world in which private actors wield great power yet are not held sufficiently accountable for the harms they cause to innocent individuals and communities.
Monday, October 9, 2017
Leslie Kendrick has posted to SSRN Free Speech as a Special Right. The abstract provides:
Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right, but they conclude that it is not. What the term “special right” means in these contexts, however, remains elusive. The term usually suggests that the right in question is distinguishable from the usual governmental decision making processes and from other rights. But just how distinctive the right must be, and in what ways, is rarely defined clearly. Indeed, many discussions of free speech assume quite demanding criteria for a special right of freedom of speech, even as these criteria remain incompletely articulated.
This paper seeks to define the criteria for a special right. It argues that the idea of a special right actually conceals two separate requirements. First, a special right must be distinct, in that the activities covered by the right must be analytically distinguishable from the activities outside of it. Second, a special right must be robust in the protection it affords. Most theories demand that a free speech right be highly distinctive, if not singular, and that it receive highly robust protection. By contrast, this paper posits that distinctiveness is a requirement of a special right only to a minimal extent and robustness, as commonly understood, not at all. On the revised criteria offered here, it seems possible that speech may after all be special, though the free speech right we want may be different from the one we can have.
Thursday, October 5, 2017
Tuesday, October 3, 2017
Val Joseph Corbett has posted to SSRN The Discount Rate & Periodic Payments in Tort Law. The abstract provides:
The ‘lump sum, once and for all’ method of payment of damages in tort law puts judges in the invidious position of having to put a financial value not only on the plaintiff’s current injuries but effectively requires them to peer into a crystal ball to ascertain the level of award that the plaintiff will require to sustain them for the rest of their lives while at the same time ensuing the award is not so excessive that it results in them receiving more than their due. In light of this background, it is the purpose of this article to critically review recent developments in the courts’ approach in Ireland and the UK in making such calculations and the impact of proposed legislation on the structure of the payment of damages awards in the form of periodic payments.
Friday, September 29, 2017
Nahel Asfour has published Wrongful Enrichment: A Study in Comparative Law and Culture (Hart Publishing). The blurb provides:
This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions. The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine. Revised Dissertation. (Series: International Studies in the Theory of Private Law) [Subject: Contract, Tort & Restitution Law; Comparative Law]
Wednesday, September 27, 2017
Ronen Perry has posted to SSRN Crowdfunding Civil Justice. The abstract provides:
Crowdfunding—the aggregation of numerous but modest individual contributions through specialized online platforms—is a relatively new finance method. In the last few years, it has started its incursion into the realm of civil litigation funding. Three unrelated events, which took place in different jurisdictions in 2017, demonstrate this evolving trend and its potential impact. In the United States, the Southern Poverty Law Center included the political activist Maajid Nawaz on a list of “anti-Muslim extremists.” Nawaz launched an independent campaign for crowdfunding a defamation action against the organization. In the United Kingdom, a wildlife protection organization brought a defamation action against Andy Wightman, a Member of the Scottish Parliament, over his blog posts about the plaintiff’s practices. Wightman raised more than £60,000 through a British crowdfunding platform to fight this lawsuit. In Israel, the acclaimed journalist Igal Sarna was found liable in defamation for a Facebook post scorning Israeli Prime Minister Benjamin Netanyahu. Sarna raised over $45,000 through a crowdfunding website to cover his liability.
The Article provides a law and economics analysis of this emerging global trend, which may revolutionize the civil process in the near future. It argues, first, that the distinction between investment-based and non-investment-based crowdfunding models is crucial. In non-investment-based models, contributors expect only a non-monetary benefit (reward-based crowdfunding) or none at all (donation-based crowdfunding). In investment-based models, contributors expect financial return—a share in the fundraiser’s future gain (equity-crowdfunding) or repayment of the contribution with interest (debt-crowdfunding). The Article contends that investment-based litigation crowdfunding is generally a welcome phenomenon, because it enables parties to pursue meritorious claims and defenses without generating a significant risk of frivolous litigation. Thus, it should be minimally regulated by securing disclosure of relevant information to potential investors.
Non-investment-based litigation crowdfunding should be more constrained. The analysis entails a second fundamental distinction between process costs and outcome costs. Process costs are any outlays incurred by either party in relation to the dispute resolution process and prior to its conclusion. These may include court charges, attorneys’ fees, witnesses’ and experts’ expenditures and remuneration, etc. In cases of incapacitating injury, process costs may also include the claimant’s living expenses throughout the process. Outcome costs are the amounts payable under the settlement or the judgment. The Article contends that non-investment-based crowdfunding of process costs should be subject to professional vetting. This will inhibit frivolous claims and defenses that waste scarce administrative resources and do not further the underlying goals of civil law. Non-investment-based crowdfunding of outcome costs should be prohibited, because it undermines at least one of the primary objectives of substantive law.
Monday, September 25, 2017
Steve Sugarman has posted to SSRN Restating the Tort of Battery. The abstract provides:
This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would a) do away with complex and unneeded doctrinal details now contained within battery law, b) pave the way to a sensible regime of comparative fault for all such physical injuries, c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.
Friday, September 22, 2017
Nadia Sawicki has posted to SSRN Choosing Malpractice: A New Narrative for Limiting Physician Liability. The abstract provides:
Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to contractually modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases – dealing with experimental medical treatment and Jehovah’s Witness blood refusals – lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.
Thursday, September 21, 2017
Steve Sugarman has posted to SSRN Torts and Guns. This piece is an expansion of his remarks at last year's AALS Torts Section panel and will appear in volume 10:1 of the Journal of Tort Law. The abstract provides:
When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCCA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.
Tuesday, September 19, 2017
Mark Geistfeld has posted to SSRN Protecting Confidential Information Entrusted to Others in Business Transactions: Data Breaches, Identity Theft, and Tort Liability. The abstract provides:
Tort litigation over data breaches — defined here as the theft of one’s confidential information entrusted to another in a business transaction — most commonly involves the negligence cause of action. These claims turn on a number of issues that require searching analysis, including the manner in which the economic loss rule affects the tort duty, the relation between the negligence standard of care and strict liability, and the appropriate forms of compensable loss. Substantive analysis of these issues shows that they all can be resolved in favor of the negligence claim, which in turn justifies a rule of strict liability. The economic loss rule does not provide a substantive rationale for barring tort claims because customers do not have the information necessary to adequately protect their interests by contracting. Moreover, the common-law tort duty can be independently justified by the legislative policy decisions embodied in statutes that regulate data breaches. To prove a breach of the duty to exercise reasonable care, the victims of identity theft will often face considerable evidentiary difficulties stemming either from the complexity of data-security systems or the unreliability of other relevant evidence involving the conduct of defendant’s employees. For reasons recognized by tort law in analogous contexts, the evidentiary difficulties of proving negligence can justify a rule of strict liability for enforcing the tort duty to exercise reasonable care. Finally, the important forms of damages caused by identity theft — the cost of credit-monitoring services and the like, unauthorized charges, and any significant loss of time and emotional distress — are all compensable as a matter of basic tort principles. Strict tort liability in these cases ultimately finds justification in the important public policy of maintaining the integrity of market transactions.
Wednesday, September 13, 2017
Issue 2017:2 of the Journal of Tort Law is devoted to a symposium on the Restatement of Intentional Torts to Persons. Authors include Anita Bernstein, Ellie Bublick, Martha Chamallas, Nancy Moore, Steve Sugarman, and Richard Wright. The Reporters, Ken Simons and Jonathan Cardi, will draft a response. Mark Geistfeld's contribution to the issue, Conceptualizing the Intentional Torts, has just been posted to SSRN. The abstract provides:
According to the most recent draft of the Restatement (Third) of Torts: Intentional Torts to Persons, the intentional torts protect the rightholder’s interests differently from negligence-based rules and strict liability, placing them into a distinct substantive category. This conceptualization, however, does not provide courts with adequate guidance on how to formulate the element of intent. Different formulations can protect the rightholder’s interests differently from negligence and strict liability, so something else must determine the appropriate way to formulate the element of intent.
The draft Restatement’s reasoning can be easily extended to provide a more useful conceptualization of the intentional torts. The practice of tort law involves the enforcement of behavioral norms, and so the substantive categories of tort law should correspond to normatively distinguishable categories of behavior. For tort purposes, three different paradigmatic forms of social behavior are relevant: aggressive interactions; interactions of mutual advantage; and the remaining nonaggressive, risk-creating interactions that are not motivated by an expectation of mutual benefit. Within this normative framework, the category of intentional torts is defined by aggressive interactions, which involve intentional harms that are normatively different from accidental harms. The intentional torts accordingly protect different interests in a distinctive manner as per the rationale in the draft Restatement.
This normative framework straightforwardly explains a number of established rules while also resolving two questions of intent that have vexed courts and commentators. Difficult issues of intent involve hard questions about how the conduct is best categorized for tort purposes. Once the categories have been conceptualized in behavioral terms, the element of intent has a clear substantive purpose: it determines whether or not an interaction is aggressive and properly governed by the intentional torts.