Tuesday, June 14, 2016
Aaron Twerski & Nina Farber have posted to SSRN Extending Comparative Fault. The abstract provides:
This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative fault principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This article focuses on well-known cases and situations where both parties likely contributed to a misunderstanding as to whether the plaintiff consented to the defendant’s conduct and suggests that, in such cases, comparative fault provides a modality for assessing damages. In many cases, the binary approach to consent is justified. When a court finds that both parties contributed to the misunderstanding, however, they should apply comparative fault to reflect that reality.
Monday, June 13, 2016
National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.
Thursday, May 26, 2016
Monday, May 23, 2016
Ben Shmueli & Yuval Sinai have posted to SSRN Victim Pays Damages to Tortfeasor: The When and Wherefore. The abstract provides:
Is there a reality in which the victim pays damages to the tortfeasor? This article analyzes Calabresi and Melamed’s liability rule for the damaging party (Rule 4), where the damaged party has the right to prevent pollution if the polluter is compensated first. Under the conventional application of this rule, the victim first collects the money and compensates the injurer, and only then is the injurer required to eliminate the nuisance (ex ante). There is no reference to a possibility of the injurer first eliminating the nuisance and only then receiving compensation (ex post). We argue that the timing of the payment should be changed when the activity causing the nuisance has social and economic value. Each version of the rule advances the aggregate welfare in some sense, but also harms it in another.
The primary aim of the present article is to introduce a new model for Rule 4 that would guide legislators, regulators, and judges in deciding when to order compensation as a condition for eliminating the nuisance and when to order the injurer to remove the nuisance first and only then collect the funds.
This article also introduces a comparative perspective that reveals the potential use of the ex post version of Rule 4, as manifest in sources of the Jewish legal tradition. This comparison further bolsters our proposal in favour of a division between ex ante and ex post versions of the rule.
Ultimately, offering two versions for the implementation of Rule 4 would better enable the adaptation of a suitable solution according to the circumstances and thus would widen the possibilities for the rule’s use.
Wednesday, May 18, 2016
Christopher Mueller (Colorado), who has a terrific Evidence casebook, has posted to SSRN Taking Another Look at MDL Product Liability Settlements: Somebody Needs to Do it. The abstract provides:
This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.
Wednesday, May 11, 2016
Nathan Miller has posted to SSRN Human Rights Abuses as Tort Harms: Losses in Translation. The abstract provides:
This Article examines the normative challenges posed by bringing international human rights claims in state courts under the common law of torts. It argues that the normative structure of the private law of torts cannot adequately address the very different concerns at stake when addressing public harms. Torts address issues that arise between two parties and those parties alone. But public law addresses harms done simultaneously to individuals and to the body politic. Redress for public harms should encompass both individual and systemic remedies, but tort law offers only the former. Instead of advancing tort claims, advocates should urge state courts to exercise their concurrent jurisdiction over the customary international legal norms incorporated into the federal common law to hear claims for violations of international human rights.
Wednesday, May 4, 2016
Cathy Sharkey has posted to SSRN The Remains of the Citadel (Economic Loss Rule in Products Cases). The abstract provides:
Though its seeds may have been planted long before, the economic loss rule in products liability tort law emerged in full force at the very same moment as the doctrine of strict products liability in the mid-1960s. This moment, fueled by the fall of privity and the rise of implied warranty earlier in the century, was of great doctrinal import — a moment when strict liability threatened to erase altogether the boundary between tort and contract in the context of defective products cases and move those cases firmly into the tort realm. The economic loss rule emerged as a crucial new levee against a flood of potentially limitless tort liability. It forged a new dividing line, keeping cases involving pure financial losses within the domain of con-tract by denying recovery for such losses under any theory of tort. Seen in this light, the economic loss rule emerged to protect the “remains” of the citadel of privity.
William Prosser, so intently focused on the dramatic siege on the citadel of privity, overlooked a few, highly significant cases, where courts continued to require privity in order for the plaintiff to recover for negligently inflicted economic losses by defective products. Over the two decades that followed Prosser’s The Fall of the Citadel, the debate over the economic loss rule in products cases continued to unfold, culminating in the U.S. Supreme Court’s embrace in East River Steamship. That case ensured the economic loss rule would keep contract from “drowning in a sea of tort” and that the wall between the “separate spheres” of tort and contract law could not be breached.
After an exploration of the evolution of, and rationales for, the economic loss rule in products cases, this Article examines whether the citadel’s last bastion should be preserved. It con-cludes that the economic loss rule in products cases may be best justified as a means to induce the putative victims — here, the parties with superior information regarding risk of financial loss — to protect themselves.
Monday, May 2, 2016
Hanoch Dagan & Avi Dorfman have posted to SSRN Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs. The abstract provides:
Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that his theory fails to meet such a test.
The Comment proceeds in four stages. We first lay out the basic structure of Ripstein’s theory of the justice of tort law and the nature of the argument he deploys in developing this theory (Part I). We then suggest that, and explain why, his effort to derive the content of the justice of tort law by taking legal doctrine at face value must fail (Part II). The next two stages of the argument consider an alternative reading of Private Wrongs (Part III) and a broader assessment of the justice of tort law against the background of public law (Part IV).
Friday, April 29, 2016
John Goldberg & Ben Zipursky have posted two pieces to SSRN. First, from this year's AALS Torts Panel, The Myths of MacPherson. The abstract provides:
For a symposium marking the centenary of Macpherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.
Next, Triangular Torts and Fiduciary Duties. The abstract provides:
When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. “Triangular torts,” as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.
Tuesday, April 26, 2016
Tuesday, April 12, 2016
Cathy Sharkey has posted two pieces to SSRN. First, States v. FDA. The abstract provides:
In the United States, food and drug safety is regulated in two ways: a stringent ex ante, national regime led by the Food and Drug Administration (“FDA”) and a robust ex post system of state-law enforcement. This federalist structure, operating on dual regulatory levels, sets the stage for synergy and for conflict.
Two recent high-profile preemption lawsuits showcase a novel dimension of the dual regulatory structure: the role of states as competing and/or complementary actors vis-à-vis the FDA in regulating food and drug safety. In Zogenix, Inc. v. Patrick, a federal district court enjoined the Massachusetts government from enacting a statewide ban on Zohydro, an FDA-approved opioid analgesic drug, but upheld the state’s subsequent prescription and dispensation-related restrictions. In Grocery Manufacturers Association v. Sorrell, food industry representatives challenged a recently enacted Vermont law mandating labeling of genetically engineered food—labeling that the FDA had not required.
Both cases explore how states can regulate drug and food safety without treading impermissibly upon the FDA’s turf. In doing so, they raise the issue of who should determine if state regulatory efforts advance or impede the federal regulatory scheme. Are courts or the regulating agencies the better arbiters? If the latter, when are their conclusions entitled to judicial deference, and how much?
This Article advances two primary claims. First, courts, when facing implied obstacle preemption challenges to state regulations, should consider the FDA’s view on the matter—namely whether the agency itself considers the state-level regulation to conflict with its national regulatory agenda. In Zogenix, the court, strikingly, paid no attention to the FDA Commissioner’s overt support of Massachusetts’s proposed restrictions on the prescribing and dispensing of Zohydro. In Sorrell, the court had before it informal policy guidance from the FDA that suggested that the agency was somewhat open to state labeling mandates. Deference to the FDA’s position in each case would have provided clear resolution of the preemption challenge.
Second, these cases reiterate and reinforce the argument at the heart of the ACUS 2010 Recommendation, Agency Procedures for Considering Preemption of State Law: if there is ever to be a coherent body of case law and regulatory policy in the realm of food and drug laws, courts must probe the FDA’s record on its examination and consideration of relevant state interests in the course of the federal regulation enactment process. Rather than blindly deferring to the federal agency’s view, courts should evaluate whether that view was the product of a responsible process that afforded states the chance to articulate how their own proposed state regulation fits with the federal regulatory scheme.
Next, The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence. The abstract provides:
The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only class in a multijurisdiction, multidefendant tobacco lawsuit. Using Judge Weinstein’s innovations in In re Simon II as an analytical lens, the Article evaluates the future prospects for classwide punitive damages claims.
Specifically, the Article considers how private litigants might adopt a societal damages approach in negotiating and achieving class action settlements. Class action settlements readily accommodate the “public law” dimension of societal damages, as demonstrated by the classwide punitive damages settlement with BP’s co-defendant Halliburton. Indeed, on closer inspection, even the BP compensatory damages class settlement has a surrounding aura of societal damages. For even that ostensibly purely compensatory arrangement included an unusual (and mostly overlooked) feature: a provision for supra-compensatory multipliers applicable to certain claimants. This Article advances the new idea that these supra-compensatory multipliers are a form of classwide societal damages embedded within the settlement, and, in turn, a potential blueprint for nascent punitive damages classes of the future.
Friday, April 8, 2016
Arthur Ripstein's Private Wrongs is now available from Harvard University Press:
A waiter spills hot coffee on a customer. A person walks on another person’s land. A moored boat damages a dock during a storm. A frustrated neighbor bangs on the wall. A reputation is ruined by a mistaken news report. Although the details vary, the law recognizes all of these as torts, different ways in which one person wrongs another. Tort law can seem puzzling: sometimes people are made to pay damages when they are barely or not at fault, while at other times serious losses go uncompensated. In this pioneering book, Arthur Ripstein brings coherence and unity to the baffling diversity of tort law in an original theory that is philosophically grounded and analytically powerful.
Ripstein shows that all torts violate the basic moral idea that each individual is in charge of his or her own person and property, and never in charge of another individual’s person or property. Battery and trespass involve one person wrongly using another’s body or things, while negligence injures others by imposing risks to them in ways that are inconsistent with their independence. Tort remedies aim to provide a substitute for the right that was violated.
As Private Wrongs makes clear, tort law not only protects our bodies and property but constitutes our entitlement to use them as we see fit, consistent with the entitlement of others to do the same.
Thursday, April 7, 2016
Jill Lens has posted to SSRN Product Recalls: Why is Tort Law Deferring to Agency Inaction?. The abstract provides:
Tort law currently recognizes liability related to a product recall in only narrow circumstances. Liability is possible if the manufacturer acts unreasonably in an agency-ordered recall or in a voluntary recall, which is likely the result of agency encouragement. What this narrow standard leaves out is possible liability for a manufacturer’s choice to simply not recall. But courts agree that only government agencies are equipped to evaluate the reasonableness of a recall and to determine if one is justified. Thus, if an agency never effects a product recall, tort liability is not possible.
A few commentators have applauded or criticized the narrow standard for liability. But this Article is the first to thoroughly question the standard in light of its real basis—deference to administrative agencies. The Article contrasts this complete deference on recall orders to the very limited deference courts give to agency determinations in traditional defect claims, modern post-sale warning claims, and within decisions to punish the manufacturer by imposing punitive damages. The Article also questions the wisdom of complete deference to an agency’s inaction in not ordering a recall and the legal validity of such deference based on its inconsistency with negligence per se principles. Last, the Article argues that there is nothing special about product recalls deserving of such special deference.
Tuesday, April 5, 2016
Dov Fox has posted to SSRN Reproductive Negligence. The abstract provides:
This Article makes three contributions. First, it introduces a right that entitles individuals to recover for procreative misconduct, independent of tangible harms to other protected interests. This right protects individual interests in those expectations of control over pregnancy, parenting, and pre-selection that professional assistance make reasonable and public policy leave legitimate. Second, it develops a framework to understand and apply the right in terms of whether negligence (1) imposes procreation on individuals who enlisted support from specialists precisely to avoid it; (2) deprives those who pursued procreation of opportunities for pregnancy or for parenthood; or (3) confounds more particular procreative goals for a child with or without certain genetic traits. Third, it concretizes such intangible injury as a function of (a) the severity in setbacks to specified interests, and (b) the probability that professional misconduct is responsible for having caused it. Damages for the frustration of reproductive interests would accordingly be reduced, for example: where procreation is imposed, in proportion to the role of user error over and above birth control malfunction; where it is deprived, based on the role of patient infertility beyond embryo loss, and; where it is confounded, to uncertainty in genetic testing, independent of its substandard execution.
Sunday, April 3, 2016
The final version of my first piece on Prosser's letters is now available here. The updated version contains material from an unpublished dissertation on Prosser's father, who played a crucial role in the development of vocational education, and materials from the Harvard archives. I am delighted by the editing work at the Iowa Law Review.
Friday, April 1, 2016
Bernard Black et al. have posted to SSRN Medical Liability Insurance Premia 1990-2015: Dataset, Literature Review, and Summary Information. The abstract provides:
This document and the accompanying datasets provide six things: (i) a dataset covering 26 years (1990-2015) of medical malpractice (“med mal”) insurance premia, compiled with extensive data cleaning from the only available source for these rates, annual surveys conducted by Medical Liability Monitor (MLM); (ii) an accompanying codebook; (iii) the Stata code we use to clean the raw data; (iv) merger of the MLM data with related datasets from the National Association of Insurance Commissioners and the American Medical Association; (v) a survey of prior uses of the MLM data; and (vi) a summary analysis of the data. We hope that the availability of this cleaned dataset will prompt further research on the effects of med mal premiums on provider behavior. We provide separate raw and cleaned datasets. We plan, but do not promise, to update the dataset as additional annual releases become available.
Tuesday, March 29, 2016
Lehman Professor of Law
University of Nevada, Las Vegas
Monday, March 28, 2016
Monday, March 21, 2016
Ingeborg Puppe & Richard Wright have posted to SSRN Causation in Law: Philosophy, Doctrine and Practice. The abstract provides:
Causation plays an essential role in attributions of legal responsibility. However, considerable confusion has been generated by the use of causal language to refer not merely to causation in its basic (actual/factual/natural) sense, which refers to the operation of the laws of nature, but also to the quite different normative issue of appropriate legal responsibility. To reduce such confusion, we argue that causal language should be used in the law to refer solely to causation in its basic sense.
While it is often said that the law need not and should not concern itself with philosophical analyses of causation, we argue that a failure to take into account rigorous philosophical analysis of causation in its basic sense and to distinguish it from the normative issue of legal responsibility has been a source of major confusion in the law. After summarizing the relevant modern philosophical analyses of causation, we criticize the strong necessity (sine qua non, 'but for') criterion in its counterfactual form and as a supposed exclusive (factual or counterfactual) test of causation, as well as primitivist "we know it when we see it" accounts. We argue, instead, for the need to employ the comprehensive, factual, weak-necessity/strong-sufficiency criterion, which is based on the "covering law" account elaborated by John Stuart Mill and which has been developed in the modern legal literature as the "NESS" (necessary element of a sufficient set) criterion.
Drawing again on the covering law account, we explain the importance of understanding the required standards of persuasion for proving causation (or any other fact) as generally requiring the generation of a warranted belief rather than a mere statistical probability, and we note the confusion and paradoxes that result from some courts' employing the statistical probability interpretation in situations in which there is inherent uncertainty regarding causation, rather than acknowledging the inherent uncertainty and explicitly addressing the normative responsibility issue.
While, pending further discussion, we disagree on some issues, such disagreement should not detract from our agreement on the most fundamental issues, including the NESS (weak necessity/strong sufficiency) covering law account of causation, the rejection of counterfactual possible worlds analysis, the inclusion of omissions and other absences as causes, the importance of focusing the causal analysis on the properties of events and states of affairs rather than events and states of affairs as a whole, and, relatedly, the importance of focusing the causal analysis for purposes of legal responsibility on the causal connection between the wrongful aspects of the defendant's conduct and the relevant legal injury. Whatever disagreements we may have now or in the future pale in comparison to the defects of any alternative analysis of causation, especially the strong necessity (sine qua non, "but for") analysis as an exclusive and/or counterfactual analysis or any account that purports not to rely on causal laws.
Thursday, March 17, 2016
Maya Steinitz has posted to SSRN Back to Basics: Public Adjudication of Corporate Atrocities Torts. The abstract provides:
The editors of this symposium invited me to contribute on the subject of an argument I have recently advanced that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.