TortsProf Blog

Hylton on the Economics of Class Actions and Class Action Waivers

Keith Hylton (Boston University) has posted to SSRN The Economics of Class Actions and Class Action Waivers.  The abstract provides:

Class action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims. This group of cases raises the question whether class action waivers should be permitted on policy grounds. I examine the economics of class actions and waivers in this paper. I distinguish between the standard one-on-one litigation environment and the class action environment. In the standard environment, waivers between informed agents enhance society’s welfare. In the class action environment, in contrast, not all waivers are likely to enhance
society’s welfare.

--CJR

Two by Stapleton on Causation

Jane Stapleton (Texas/ANU) has posted to SSRN two pieces on causation.  First up is Reflections on Common Sense Causation in Australia and the abstract provides:

Part 1 of this chapter argues that the High Court of Australia’s so-called “common sense test” of causation is an empty slogan, neither a test nor anything to do with common sense. For clarity of legal analysis the issue of whether a factor was involved with the existence of the relevant phenomenon (that is, the issue of factual causation) should be kept explicitly separate from the issue of the appropriate scope of legal responsibility for that phenomenon. Expressing the latter scope issue as a “causal” issue is obfuscating and should be abandoned. This Part also argues: that Australian courts should cease referring to the “scope of the duty”; that a factor should be recognised as a factual cause if it contributes in any way to the existence of the phenomenon in issue even if it is neither a “but for” nor a sufficient factor for the existence of that phenomenon; and that aspects of the civil liability legislation prompted by the Review of the Law of Negligence: Final Report (the “Ipp Report”) can and should be ignored. Part II elaborates the “factual causation then scope-of-liability-for-consequences” approach with illustrations from the common law and under statute, including many of commercial cases.

 

The second is Unnecessary Causes, not yet available for downloading, and the abstract provides:

This article argues that private law, specifically tort law, should adopt a notion of a “cause” that is wider than the relation of necessity that is encapsulated in the traditional but-for test. The law may have an interest in the relation between an indivisible injury and a specific tortious contribution to the mechanism by which it occurred, which contribution was unnecessary because the relevant element of that mechanism was “over-subscribed”. The suggested approach facilitates separation of two distinct issues: whether a breach of duty contributed to the occurrence of the injury of which complaint is made (the “factual cause” issue); and whether that injury represents “damage” relative to the benchmark of where the victim would have been had he not been the victim of tortious conduct.

The discussion includes English medical negligence cases, the recent decision of the Supreme Court of Canada in Clements v Clements (2012), and US cases involving Title VII and the downloading of child
pornography.

--CJR

Sebok on Litigation Financing and Insurance

Tony Sebok has posted to SSRN Control Issues:  Litigation Investment, Insurance Law, and Double Standards.  The abstract provides:

 

Investment in litigation, sometimes known as litigation finance, is becoming increasingly accepted around the world. Once disfavored by the common law, it is now embraced in England and Australia, as well as in many civil law nations. In the United States, the development of a robust market for investment in litigation by laypersons otherwise unconnected to the legal matter at issue has been met by various objections. These include that it interferes with the autonomy of lawyers, and that it would promote frivolous litigation.

This article takes up an argument against litigation investment frequently made by the U.S. Chamber of Commerce and other important stakeholders in the Civil Justice System: that the legal system should not encourage parties to alienate their control over litigation that would vindicate their rights. This criticism suggests that private law theory requires that control stay with the original right holder, and that a contract between a party who wants to sell (or give up) all or some of her control over her litigation to a stranger should be struck down for being contrary to public policy.

While I briefly consider justifications rooted in moral philosophy for the view that control of litigation cannot be alienated, I focus mostly on arguments based on an interpretation of common law practice. I argue that arguments based on the structure or nature of the common law against the alienation of control of litigation are anachronistic. Such arguments constrained markets in the Nineteenth Century, but as social needs evolved, especially as the role of insurance in society grew, courts reinterpreted common law practices to permit the alienation of control of litigation for profit in various contexts, including subrogation and liability insurance.

The article concludes by arguing that we can learn from the evolution of insurance law how rigid attitudes about the relationship between victims and wrongdoers can bend to fit social needs. It argues that, given the strong market interest in litigation investment in the United States, (as well as its social benefits), the common law should accommodate the alienation of control in this new context.

 

--CJR

Goldberg & Zipursky on Tort Law and Responsibility

John Goldberg & Ben Zipursky have posted to SSRN Tort Law and Responsibility, a chapter in Philosophical Foundations of the Law of Torts (edited by John Oberdiek and available next year).  The abstract provides:

 

It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories.

In this chapter, we aim to provide an account of the centrality of responsibility to tort law, thereby restoring its proper place in tort theory. We first review the impressive effort of Stephen Perry to harness Tony Honoré’s notion of “outcome-responsibility” to supply a satisfactory understanding of tort law, and negligence law in particular. We then demonstrate how notions of responsibility of the sort invoked by Perry help explain some of the most important developments in modern tort doctrine, including the emergence of strict products liability, comparative fault, and robust-yet-limited affirmative duties. Finally, we argue that our own interpretive account — the civil recourse theory of tort — is superior to Perry’s in that it places notions of responsibility at the center of tort law while also making better sense of prevailing doctrine.

--CJR

AALS Torts Panel on Civil Recourse Theory

The Indiana Law Journal has posted to its website the articles from the 2012 AALS Torts & Compensation Systems panel on civil recourse theory:

Indiana Law Journal

Volume 88: Issue 2 Winter 2013

AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL

Twenty-First Century Tort Theories: The Internalist/Externalist Debate Michael L. Rustad

Civil Recourse Theory’s Reductionism Guido Calabresi

Instrumental and Noninstrumental Theories of Tort Law Richard A. Posner

Beneath the Surface of Civil Recourse Theory Martha Chamallas

Two Roads Diverge for Civil Recourse Theory Christopher J. Robinette

Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette John C. Goldberg & Benjamin C. Zipursky --CJR

Fordham's "Lawyering for Groups"

Howard Erichson and Ben Zipursky of Fordham recently chaired a symposium on "Lawyering for Groups."  Participants included Beth Burch, Kristen Carpenter, Sam Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, and Eli Wald.  The papers are available at Mass Tort Lit Blog.

--CJR 

Culhane on Concussions as a Public Health Problem

John Culhane (Widener) has posted his contribution to the FIU symposium on concussions to SSRN.  Entitled Not Just the NFL:  Compensation, Litigation, and Public Health in Concussion Cases, the abstract provides:

 

This article examines the recent attention given to traumatic head injury in the National Football League from a public health perspective. It notes that injuries are prevalent in many sports (not just football), and argues that the goal should be to design interventions that reduce the incidence and severity of such injuries. The article explores and evaluates some of the measures that have been taken throughout football (from the NFL down through youth leagues) to make the sport safer, and notes how these steps also affect other sports and injuries to other parts of the body. Since football and other dangerous sports are unlikely to be eliminated, harm reduction should be the goal. Taken together, these measures
are likely to be successful by that measure.

The article concludes with some observations about the use and limitations of tort claims and compensation funds to redress the harms caused by participation in dangerous sports such as football.

--CJR

Catastrophic Payments and Medical Malpractice

Terry Baynes of Reuters has written an article about the recent study by a group of physicians at John Hopkins finding that large med mal awards do not contribute significantly to healthcare costs.  The article quotes the lead author of the study, Dr. Marty Makary, and me on the issue.  My comments appear somewhat more skeptical of the med mal tort system than I actually am (through no fault of Ms. Baynes), and that caused me to reflect further on the significance of the study. 

The study (pdf) finds that catastrophic judgments (of over $1M) constitute approximately .05% of national healthcare costs (as measured in 2010).  I believe the inferences and recommendations that Dr. Makary and his colleagues draw from this are generally correct.  First, they determine that catastrophic payouts are not a major driver of health care costs.  Second, at least in interviews, Dr. Makary argues that defensive medicine due to the vague standard of care is a bigger expense than catastrophic payouts.  Third, acknowledging the study does not include costs of defensive medicine, the authors conclude that the financial savings due to malpractice reform may be minimal compared to other drivers of health care costs.  Fourth, at least in interviews, Dr. Makary argues that malpractice reform should not be focused on caps, but on the standard of care. 

First, the study does support, at least modestly, a policy decision against caps.  The argument is that "lopping off" the top of large med mal judgments does not save a lot of money because the amount of large judgments is small.  There are, however, confounding variables.  The study uses $1M or more as the definition of catastrophic payouts.  Most caps are set well below $1M and are caps not on total awards, but on noneconomic loss alone.  I don't see that the study differentiates between economic and noneconomic damages.  This is not a criticism; I don't believe the National Practitioner Data Bank from which the data are drawn makes this distinction.  It does, however, prevent a direct comparison between catastrophic payments and how caps would operate on them.

There are certainly other arguments against caps.  They have a disparate impact on those who are most seriously injured.  The most seriously injured in tort law are already under compensated, receiving a portion of economic loss, while those whose injuries are minor tend to receive several times economic loss.  Moreover, to the extent that caps are aimed not at the top awards but at generally reducing suits, particularly frivolous suits, there is a much more direct and fair tool available:  certificates of merit.  Suits filed without merit is a problem; a 2006 study found that 37% of med mal claims in random samples of closed-claim files at 5 med mal insurance companies were non-meritorious.  (David M. Studdert et al., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, 354 New Eng. J. Med. 2024 (2006)).  Pennsylvania has used certificates of merit (and no cap) to positive results.   

Second, I agree that malpractice reform would not dramatically reduce costs in the vast health care system.  Steven Brill's Time piece in March discussed numerous non-malpractice-related problems driving up costs.  That doesn't mean malpractice law should not be reformed, just that it should be reformed for other reasons.

Third, and most significantly, I agree with the conclusion that the standard of care is a big part of the problem with med mal litigation.  What is reasonable under the circumstances can be difficult to determine under banal circumstances.  When applied to the practice of medicine, those complications multiply.  Dr. Makary focuses on this as the cause of defensive medicine, and I'm sure it happens (though measuring it seems challenging).  Moreover, the uncertainty created by the standard leads to delay and transaction costs as the parties genuinely dispute whether a health care provider acted reasonably under the circumstances.  As to delay, the Studdert study referenced earlier found the average med mal claim spanned 5 years from occurrence to closing.  As to transaction costs, the study found only 46 cents of every dollar went to claimants.  Both these figures are consistent with prior studies. 

Thus, the uncertain standard creates 3 problems.  First, not all results are accurate.  The Studdert study found an accuracy rate of determining medical errors (not quite the same as med mal, but close) at between 70 and 75 per cent.  That is a better than random, but not great, particularly in light of the other 2 problems:  delay (5 years on average) and transaction costs (running the system costs 54 cents of every dollar).  This obviously creates potential problems for health care providers:  the possibility of an erroneous adverse judgment, time spent worrying and not focused on health care, and high attorneys' fees/insurance premiums.  To me, it is even worse for claimants.  The Studdert study found 1 in 6 victims of medical error did not recover.  In fact, the study found  nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.  Moreover, a 5-year wait can be devastating to a claimant, particularly if there are large medical bills and lost wages involved.

Instead of simply raising the standard to make it more difficult for claimants to recover (recall 1 in 6 already doesn't recover when s/he should), it makes sense to me to provide claimants and health care providers a voluntary way to opt out of the tort system and handle the claim more along insurance lines, paying economic loss and a modest amount for pain and suffering.  New Hampshire's early offers law passed last June was a step in the right direction.  It may not be perfect, but it is an improvement over the current system.  I won't make a long post any longer, but those who are interested in New Hampshire's early offer law can go here, here, and here.   

--CJR 

There is one other facet of the study that is interesting.  The authors find a physician's years in practice and, most significantly, previous paid claim history had no effect on the odds of a catastrophic payout.  Ted Frank mentioned this at Point of Law.  I would not have expected a strong correlation, but the lack of any correlation is surprising to me.

Scheuerman on Class Certification in NFL Concussion Litigation

TortsProf's Sheila Scheuerman has posted to SSRN The NFL Concussion Litigation:  A Critical Assessment of Class Certification.  The abstract provides:

In the world of high-stakes class action litigation, a new theory is emerging that seeks to overcome the longstanding hurdles that have precluded certification of personal injury class actions: the "medical monitoring" class action. A recent example is the concussion-related lawsuits brought by former football players against the National Football League. The players allege that the NFL concealed the long term effects of on-field head injury, and failed to warn players of the risks of harm from repeated concussions. The players only seek class certification on a medical monitoring claim — a tort that may allow asymptomatic plaintiffs to recover anticipated medical testing. Like the putative personal injury class or no-injury class, however, aggregation of medical monitoring claims presents its own individual issues that preclude class certification under the Federal Rules of Civil Procedure.

This symposium essay examines the class certification issues presented by the "NFL concussion" litigation. The essay presents the history and status of this litigation, provides an overview of concussion science, and examines the players’ claims against current standards for class certification. The essay concludes that the players’ medical monitoring claim as currently pled fails to satisfy the criteria for class certification. This does not mean that these plaintiffs have no redress against the NFL. It means only that the NFL players need to employ the traditional personal injury lawsuit — not the class action device — to pursue their relief.

 --CJR

Rhee on the Tort Foundation of Duty of Care and Business Judgment

Robert Rhee (Maryland) has posted to SSRN The Tort Foundation of Duty of Care and Business Judgment.  The abstract provides:

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort principles is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, and pure economic loss. Properly applied, they produce a duty “to care” (vis-à-vis duty of care), based on a good faith undertaking of care, but upon such undertaking no liability for negligently inflicted economic loss – the exact result achieved by the fiduciary duty of care and the business judgment rule. A sound tort analysis not only theorizes the enigmatic relationship between the duty of care and the business judgment rule, but it also explains Delaware’s puzzling procedural-substantive divide. Fiduciary duty in corporation law rests on a tort foundation. Lastly, the thesis of this Article has a broader implication. The contractarian view of corporation law seeks to relegate the role of courts to passive custodians of the corporate contractual terms provided by the legislature and the corporation’s constituents. However, this view is constrained by a tort framework wherein courts do and should play a robust, albeit reserved, role in regulating important aspects of corporate governance through the continued common law process of doctrinal development of the idea of a wrong.

--CJR

Swan on Tort Law, Sexual Assault, and Third Parties

Sarah Swan (JSD Candidate, Columbia) has posted to SSRN Triangulating Rape.  The abstract provides:

Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated.  Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.

Despite the fact that the criminal regime has been demonstrably unsuccessful in addressing or deterring sexual harms, it remains the primary forum for their adjudication, and many cultural, legal, and political pressures encourage women to rely solely on this system. This article argues against those pressures, and asserts that triangulated claims in private law represent a potentially promising avenue of redress for sexual harms. These civil suits can function as “crimtorts” (private civil actions which target public harms). Although they must overcome some significant obstacles, triangulated civil suits can serve as an important tool in targeting the social realities that contribute to sexual assault.

--CJR 

Mullenix on Class Actions at the Supreme Court

Linda Mullenix (Texas) has posted to SSRN The Practice:  Class Action Cacophony at the Supreme Court.  The abstract provides:

Commentary and analysis of the Supreme Court’s February and March 2013, decisions in three major class action appeals: Amgen Inc. v. Connecticut Retirement Plan and Trust Funds (February 27, 2103); Standard Fire Ins. Co. v. Knowles (March 19, 2013), and Comcast Corp. v. Behrends (March 27, 2013). The article surveys the Court’s liberal and conservative divide on class certification issues, giving some support to both the plaintiff and defense sides of the class action docket. In Amgen, in an opinion by Justice Ginsburg, a divided Court again saved the fraud on the market presumption for certification of securities class actions. On the other hand, in Comcast, in an opinion authored by Justice Scalia, an equally divided Court found fatal to class certification the failure of proof of classwide damages for a Rule 23(b)(3) damage action. The Comcast decision, coupled with a concurrence by Justice Alito, suggests that there may be at least four votes for the Court to consider the original fraud on the market presumption announced in the landmark case, Basic v. Levinson.

Although embodying different outcomes, the Amgen and Comcast decisions both embrace the same litany of core class certification principles. However, the Court in neither case has clarified or illuminated further the debate over the extent to which trial courts may properly assess the underlying merits of class claims as part of the certification process. Instead, the Court in both cases deflected the merits conversation into the Rule 23 predominance requirement.

Finally, in Standard Fire Ins. Co. v. Knowles, in an opinion by Justice Breyer, a unanimous Court agreed that a class representative could not stipulate to less than the $5 million damage threshold in order to evade removal under the Class Action Fairness Act of 2005. A class representative could bind himself, but had no power or authority to bind absent class members.

--CJR

Journal of European Tort Law Publishes Latest Issue

Journal of European Tort Law, vol 4 issue 1 (2013) (available here)

Articles:  

Duncan Fairgrieve, Geraint Howells and Marcus Pilgerstorfer ‘The Product Liability Directive: Time to get Soft?’ (2013) 4 JETL 1 

Hugo A Acciarri and Nuno Garoupa ‘On the Judicial Interest Rate: Towards a Law and Economic Theory’ (2013) 4 JETL 34 

Paula Giliker ’Tony Weir and the Law of Tort (2013) 4 JETL 63

Philippe Brun and Christophe Quézel-Ambrunaz ‘French Tort Law Facing Reform’ (2013) 4 JETL 78

Book Reviews:

Ina Ebert ‘Lotte Meurkens/Emily Nordin (eds), The Power of Punitive Damages. Is Europe Missing Out?’ (2013) 4 JETL 95

Daniel Gardner ‘Jacques De Mol, Le dommage psychique – Du traumatisme à l’expertise’ (2013) 4 JETL 98 

Piotr Machnikowski ‘Pekka Aalto, Public Liability in EU Law: Brasserie, Bergaderm and Beyond’ (2013) 4 JETL 101 

Ulrich Magnus ’Marten Breuer, Staatshaftung für judikatives Unrecht. Eine Untersuchung zum deutschen Recht, zum Europa- und Völkerrecht’ (2013) 4 JETL 106

Ugo Mattei ’M Infantino, La causalità nel diritto della responsabilità extracontrattuale. Studio di diritto comparato’ (2013) 4 JETL 110 

Andrew Tettenborn ’B Winiger/H Koziol/B Koch/R Zimmermann (eds), Digest of European Tort Law, Vol 2: Essential Cases on Damage’ (2013) 4 JETL 113

Thanks to Ken Oliphant for the tip.

--CJR

JOTWELL Torts: Hylton on Lobbying and Restatements

Keith Hylton (Boston University) reviews Laposata, Barnes, & Glantz's Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflicts of Interest Policies over at JOTWELL.

--CJR

Burch on Adequately Representing Groups

Elizabeth Chamblee Burch (Georgia) has posted to SSRN Adequately Representing Groups.  The abstract provides:

Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? The answer to this question matters immensely since adequate representation is critical to precluding relitigation and achieving finality.

This Article suggests that courts should differentiate between inadequate representation claims based on the underlying right at stake. When the underlying right arises from an aggregate harm — a harm that affects a group of people equally and collectively — and demands an indivisible remedy, courts should tolerate greater conflicts among group members when evaluating a subsequent claim of inadequate representation. Because the harm is aggregate and the remedy is indivisible (typically declaratory or injunctive relief), if one group member receives the remedy, then they all receive the remedy. The litigation operates to group members’ benefit or detriment equally, so if one group member is inadequately represented, they are all inadequately represented. Consequently, a subsequent litigant can successfully avoid preclusion only where the lawyers or the named representatives acted contrary to the group’s best interests or attempted to represent an overinclusive, noncohesive group where some members required unique relief that the representative had no selfish reason to pursue.

Conversely, when plaintiffs suffer individual injuries at the same defendant’s hands and unite their claims for economic or efficiency reasons, that aggregation does not convert their individual injuries into an aggregate harm. When counsel fails to fairly represent her client in vindicating that harm, inadequate representation is an individual injury. In multidistrict litigation and Rule 23(b)(3) class actions, which typically include individuals litigating their individual harms together for systematic and litigant efficiency, courts should look for “structural conflicts” between the claimants themselves as well as between the representatives and the claimants. This means that both initially and on a collateral attack, courts should accept fewer conflicts than in cases involving aggregate rights. Accordingly, judges should assess whether there are reasons the lawyers “might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-à-vis the lawyers themselves.”

--CJR

Schwartz, Goldberg & Silverman on Brand Name Drug Manufacturers Liability for Generics

Victor Schwartz, Phil Goldberg and Cary Silverman (Shook Hardy & Bacon) recently published Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drug Has Severe Side Effects in Fordham Law Review.  The abstract provides:

Can a product manufacturer be subject to liability for a competitor’s product? American tort law has always said, “No.” It does not matter if the products are identical. Companies are not to be their competitors’ keepers.

Nevertheless, over the past few years, three courts have overturned this fundamental of tort law, holding that a manufacturer of a brand-name prescription drug can be subject to liability even when a plaintiff alleges that he or she was harmed by a generic drug made by the brand-name manufacturer’s competitor. Most courts, including four federal courts of appeal and dozens of federal district and state trial courts, have rejected this expansion of tort law.

This debate has intensified since 2011, when the Supreme Court of the United States held that all duty to warn claims against manufacturers of generic drugs are preempted by federal drug. The personal injury bar is hoping that courts will give competitor liability theories a new look, particularly when courts find that there is no other path for users of generic drugs to sue.

This Article explains the reasons courts should continue resisting any temptation to change state tort law to allow for competitor liability: (1) it is driven by a search for pockets for paying claims in violation of fundamental tort law principles; (2) the overwhelming majority of courts have continued rejecting competitor liability, even since the Supreme Court ruling; and (3) shifting liability to manufacturers of brand-name drugs could have significant adverse legal and health care consequences. 

- SBS

Rapp on NFL Concussions

Geoff Rapp (Toledo) has posted to SSRN his contribution to Howard Wasserman's symposium, Suicide, Concussions, and the NFL.  The abstract provides:

This contribution to a FIU Law Review symposium on concussions in the NFL explores the state of the science and the possibility that the family of a former NFL player could recover from the NFL in the event that the former player committed suicide. While the link between brain injury, depression and suicide is both logical and supported by some emerging science, the paper suggests that significant legal obstacles would confront any such claim.

--CJR

JOTWELL Torts: Sebok on Oberdiek--"Are Risks Wrong?"

Over at JOTWELL, Tony Sebok (Cardozo) reviews The Moral Significance of Risking by John Oberdiek (Rutgers-Camden).

--CJR

Oman & Solomon on the Supreme Court's Private Law Jurisprudence

Nathan Oman & Jason Solomon (W&M) have posted to SSRN The Supreme Court's Theory of Private Law.  The abstract provides:

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or “public law in disguise.”

Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court’s theory of private law.  A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy.

Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff’s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude.

--CJR 

Kochan on Property, Contract, and Tort

Donald Kochan (Chapman) has posted to SSRN The Property Platform in Anglo-American Law and the Primacy of the Property Concept.  The abstract provides:

This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines — property, tort, and contract — have their own separate and distinct existence.

In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned — including the right to exclude, ownership, dominion, authority, and the sic utere maxim — normally segregated to our discussions of property law but that should be considered equally necessary to contract and tort law.

In examining these property concepts, this Article goes further to contend that ownership in the self has a vital place in the property discussion. Every legal system must decide the level of protection or recognition of property in the self before it can make any decision on what rules to create in relation to real property, tort or contract. The rules in all three develop on their own but each can be measured from their consistency or deviation from a starting base of absolute property ownership in the self. Once we understand that the platform for each of these areas of law is based in the property concept, so too can we then have a metric for discussion to evaluate deviations from pure property principles that develop in each doctrine (or separate discipline) thereby allowing us to also isolate the most unique characteristics attributable only to a discrete subject like contract or tort. But understanding that the property concept is at the base of all three legal species — property, contract and tort — is nonetheless the necessary starting point for an understanding of any of them.

--CJR