Monday, March 10, 2014
In "Would Litigation Financing Improve Mass Torts," the National Law Journal examines an article by Professor Byron Stier suggesting that plaintiffs should be allowed to sell their claims to financial entities. As Chris mentioned in an earlier post, Byron's article was part of the "Perspectives on Mass Tort Litgiation" symposium held at Widener last April.
Friday, March 7, 2014
Jeffrey Pojanowski (Notre Dame) has posted to SSRN Private Law in the Gaps. The abstract provides:
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory.
This Article’s analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory conception of private law while also advocating courts’ independent judgment in statutory gaps. Much public law theory on statutory interpretation, however, challenges this preference for background law over legislative policy, at least when private law is understood primarily as public regulation. By contrast, the more a court views private law as a coherent practice autonomous from public regulation, the more justification it has to develop that doctrine amid legislative silence. This space for creativity can be most pronounced for statutory formalists like textualists, a counterintuitive implication given the latter approach’s association with judicial restraint.
Finally, the analysis illuminates the larger question of whether private law adjudication and scholarship need an intervention from public law theory in statutory interpretation. If, as much law and scholarship presumes, private law is simply public regulation by adjudicative means, most every question at the junction of private law and legislation concerns statutory interpretation broadly understood. In that case, private law scholars’ indifference about public law scholarship in legislation is difficult to defend. By comparison, private law’s innocence of statutory interpretation theory is more easily justified on noninstrumental assumptions about background doctrine.
Thursday, March 6, 2014
Mark Geistfeld (NYU) has posted to SSRN Tort Law in the Age of Statutes. The abstract provides:
The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, these three statutorily related doctrines are a muddle, lacking any coherent theory that adequately accounts for the competing institutional concerns of the federal regulatory and state tort systems. The problem resides in a mistaken focus on statutory purpose. Due to the supremacy of legislative law, a statutory purpose to modify tort law would seem to fully determine the relation between the common law of torts and the regulatory state. This conclusion is mistaken, however, explaining why there has been so much confusion and controversy about the matter. Systematic analysis across the doctrines of negligence per se, the regulatory compliance defense, and implied statutory preemption shows that they are instead unified by a single underlying principle: When a statute or administrative regulation is based on a policy decision that is relevant to the resolution of a tort claim, courts will defer to the non-binding legislative policy determination as a matter of common-law discretion. This immanent principle of common-law deference gives much-needed structure to the three statutorily related doctrines, filling the analytic gap created by the overly narrow inquiry into statutory purpose. The legislative intent to modify tort law certainly matters, but the principle of deference provides the primary means by which courts integrate health and safety legislation into the common law of torts, eliminating the purported conflict between tort law and the modern regulatory state.
Wednesday, March 5, 2014
Herb Hovenkamp (Iowa) has posted to SSRN Fractured Legal Institutions. The abstract provides:
This article considers a previously unexamined question: How can we improve the legal analysis of conflicts that occur in very small arenas? The conflicts can be of many kinds, including a nuisance dispute between neighbors, an impending collision between two moving vehicles, a joint decision between spouses about whether or on what terms to continue their marriage, or a disagreement between managers and shareholders within a firm.
The prevailing literature typically refers to these small environments as “markets.” Thinking of them as markets, however, averts our attention from larger environments that should be considered but that often do not function well as private markets. For example, efficiency queries typically look at the wealth created (or destroyed) only in the micromarket at hand, treating gains or losses to others only as externalities to the extent that they are not internalized by bargaining or adoption of the appropriate legal rule. Stepping back and looking at a larger arena often permits superior solutions, particularly when extraction from previous commitments is costly.
Focusing on the larger rather the smaller environment can enable an increase in social wealth or welfare but may also require greater State intervention. As the environment becomes larger bargaining works less well. As a result, we may have to abandon the language of markets or constrain its use, particularly when instability (cycling) or behavioral issues are prominent. In these settings the “market” is often little more than a metaphor. One way to think of the problem is as institutional fracture, or the cost of breaking the arenas in which people interact into excessively small pieces.
A comparison of the law and economics of common law nuisance and that of automobile accidents illustrates the differences. The Coasean literature focused on neighbors whose interests were in place and where bargaining was conceivable. As a result, two people sharing a single building in London came to be regarded as the “market” for legal analysis. By contrast, bargaining metaphors completely failed in the law of automobile accidents, where bargaining is a much less promising resolution to conflict problems. This forced the analysis to step back and consider the full arena in which motor vehicles operate rather than individual pairwise conflicts. As a result, outcomes in cases involving traffic disputes are inherently superior to outcomes in cases involving nuisance disputes between neighbors.
The article concludes with a discussion of useful default rules for avoiding or controlling institutional fracture. The theory of private default rules has not done an adequate job of differentiating their use in different institutional settings. A complete theory of private default rules must address three important issues. The first is How should the legal policy maker select a default rule? The second is When should the rule be a “default” and when should it be absolute? Third is What kind of bargaining coalition is needed to reverse the default?
Finally, often it makes sense to “stack” a contractual mechanism, together with appropriate default rules, on top of a regulatory mechanism. For example, an optimal land use policy would use an underdeterrent zoning law, which eliminates more severe conflicts before they occur, but stack on top of this a set of private contract rules for dealing with more narrowly focused and idiosyncratic land use conflicts.
Monday, March 3, 2014
Jill Wieber Lens (Baylor) has posted Warning: A Post-Sale Duty to Warn Targets Small Manufacturers on SSRN. The abstract provides:
The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.
This Article is the first to identify a massive problem with a factually dependent post-sale duty to warn — that it will most likely result in liability for small manufacturers, but not large manufacturers. This is because the costs of issuing the warning for a small manufacturer will always be smaller than for a large manufacturer. This Article is also the first to argue that a factually dependent post-sale duty to warn is thus inconsistent with the underlying purposes of products liability law and general public policy. Although the factually dependent post-sale duty to warn seemed like a perfect solution to the overburdening problem, it should not be adopted.
Tuesday, February 18, 2014
Last April at Widener, we hosted a symposium entitled "Perspectives on Mass Tort Litigation." The first of two issues of articles from the Widener Law Journal is now available. It's a terrific lineup:
Christopher J. Robinette, Introduction Download Robinette_V23I1
Victor E. Schwartz & Mark A. Behrens, Asbestos Litigation: The "Endless Search for a Solvent Bystander" Download Behrens&Schwartz_V23I1
Eduardo C. Robreno, The Federal Asbestos Products Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? Download Robreno_V23I1
Byron G. Stier, The Sale and Settlement of Mass Tort Claims: Alternative Litigation Finance and a Possible Future of Mass Tort Resolution Download Stier_V23I1
Thurbert Baker, Paying to Play: Inside the Ethics and Implications of Third-Party Litigation Financing Download Baker_V23I1
Sheila B. Scheuerman, Mass Tort Ethics: What Can We Learn from the Case Against Stanley Chesley? Download Scheuerman_V23I1
Nicholas P. Vari & Michael J. Ross, In a League of Its Own: Restoring Pennsylvania Product Liability Law to the Prevailing Modern "Attitude" of Tort Law Download Vari&Ross_V23I1
S. Todd Brown, Bankruptcy Trusts, Transparency, and the Future of Asbestos Compensation Download Brown_V23I1
Monday, February 17, 2014
Friday, February 14, 2014
Wednesday, February 12, 2014
Tuesday, February 11, 2014
A new article in Albany Law Review addresses a growing issue of personal responsibility: the use of cell phones as a causal factor in accidents. In Don't Text, Talk and Walk: The Emerging Smartphone Defense in Personal Injury Litigation, Robert Lang explores recent case law where the plaintiff and/or defendant was distracted on a cell phone at the time of an accident.
Some possible exam material in this one!
Monday, February 10, 2014
From James Lee (Birmingham):
I write to invite proposals for papers for the Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.
The overall theme of the Conference is ‘Judging in the 21st Century’. I anticipate that it will be likely that Tort papers will be able to engage readily with this topic, whether focusing on decisions of the highest courts in relevant jurisdictions or on work at first instance, for example. Beyond the theme, proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the second half of the Conference: please note that it has changed from the first half last year, so will run on Thursday 11th and Friday 12th.
All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. We are pleased to have had a range of colleagues presenting high quality papers in recent years, notably from many ODGers. If you are interested in presenting a paper, please e-mail me at firstname.lastname@example.org with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Friday 7th March 2014.
Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.
Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.
Thursday, February 6, 2014
Joe King (Emeritus, Tennessee), in a recent issue of the Vermont Law Review, examines the issue of whether the NY Times standard for defamation should apply to statements about former public officials and former candidates. Those familiar with King's work know he favors the application of the NY Times standard to all defamation plaintiffs, regardless of the status of the plaintiff or the content of the speech. Within the confines of current doctrine, however, King recommends a fact-specific approach depending significantly on whether the conduct allegedly occurring was while the plaintiff was still in office or a candidate for office. King's article is at 38 Vt. L. Rev. 275 (2013).
Tuesday, February 4, 2014
Yuvai Sinai (Netanya) and Benny Shmueli (Bar-Ilan) have posted to SSRN Calabresi's and Maimonides's Tort Law Theories--A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on Two Theories. The abstract provides:
The main argument of Sinai and Shmueli's article is that the roots of contemporary utilitarian analysis can be traced back to Jewish law sources, and the ancient model can assist us in presenting a preliminary sketch of a modern model of pluralistic tort liability.
Is it possible to create a virtual dialogue between the method of classic scholars of the economic analysis of tort law, such as Guido Calabresi — one of the founders of (tort) law and economics, and the method of Jewish tort law scholars, such as Talmudic and post-Talmudic sages, especially Maimonides? The obvious answer appears to be negative, as the two methods are miles apart in time and space, geographically, and mentally-culturally. However, we point out that it is definitely possible to conduct a dialogue between the two tort theories, and the results are likely to surprise. It is surprising to read ancient sources in the eyes of law and economics. Even though these sources focus especially on private tortfeasors and daily torts as nuisances between neighbors, and not with mass tortfeasors and victims as in the modern industrial world, one can definitely observe deep elements of law and economics in these sources.
Careful analysis of modern tort law and economics helps in the understanding of many Talmudic sources and Maimonides’s tort theory, which many scholars had difficulty explaining because of their deviation from the principle of fault. This analysis explores that Talmudic tort law, in the light of Maimonides writings, follows a pluralist path, which balances between utilitarian and deontological considerations. Maimonides’s theory consists of various objectives and considerations that operate in concert. Different objectives play a dominant role in different types of damage.
Although at times scholars use considerations of efficiency in support of their arguments, most of them do not ascribe any independent value to an economic or utilitarian approach or perspective; from their point of view this is no more than some type of added value. The present article, however, argues that Maimonides was not of this opinion but saw the value of a utilitarian approach as a guiding conceptual pattern and philosophical approach, although he did not refrain from integrating other values as well.
Nevertheless, in addition to pointing out the meeting points between the theories, we also indicate the significant differences between them, which follow from the different and at times conflicting positions of the methods.
Hence, the analysis of the dialogue between the methods produces a deeper understanding of both theories of tort law, each one separately. However, theoretical research often finds its way to practical application. The analysis is expected to enable us to integrate the two methods, if only in part, into a modern model of tort liability. Hence, we will propose an applicative model that contains an outline of a theory of torts inspired by the writings of Maimonides and other Jewish scholars, and contemporary prominent law and economics scholars such as Calabresi and Posner. The assumption is that the model presented by Maimonides is creative, but needs to be adapted to the present; whereas Calabresi's model is compelling. Nonetheless, we think that Calabresi's model is less suitable for classical tort events committed by uninsured individuals who do not manage risks and do not distribute losses, which have not disappeared entirely from the present landscape of torts. On these grounds, it is possible to propose a modern preliminary sketch that can serve as an introduction for a modern model of tort liability. The proposed model will be pluralistic, featuring (what we call) "differential liability," based on Calabresi's doctrines of the cheapest cost avoider and of the best decider, but different from them. This outline highlights a certain split between (a) the need to implement strict liability, and efficiency considerations in some of the tort cases, and (b) to apply liability that is not absolute but rather fault-based, as well as deontological considerations in other tort events. The efficiency considerations apply especially to cases in which insurance is dominant, when it is possible to identify a deep pocket, and when loss is distributed; the deontological considerations apply especially in classical traditional tort events involving an uninsured private tortfeasor, who has limited financial means.
The model also provides complementary interpretation to seemingly contradictory economic approaches of no-fault (Calabresi) and fault-based (Posner) regimes.
Prof. Calabresi's response discusses law, economics, and Justice in our era and according to Maimonides. It discusses empirical differences in times in their implications, and considers the question whether there are differences between the differential liability model, presented by Maimonides and analyzed by Sinai and Shmueli, and the cheapest cost avoider doctrine. It also expands on deontological vs. utilitarian considerations, and presents justice according to law and economics.
The authors are working on expanding the analysis into a book.
Robert Hedley Stevens (Oxford) has just posted to SSRN, "Private Rights and Public Wrongs." The abstract provides:
This paper is in two parts. First, the analytic question of how we distinguish crimes from torts will be addressed. Second a normative claim will be made that Mill’s Harm Principle is both too narrow and too broad in determining what kind of conduct can be criminalised.
The paper is part of a forthcoming book, "Unraveling Tort and Crime."
Friday, January 31, 2014
Robert Stevens (Oxford) has posted to SSRN Private Rights and Public Wrongs. The abstract provides:
This paper is in two parts. First, the analytic question of how we distinguish crimes from torts will be addressed. Second a normative claim will be made that Mill’s Harm Principle is both too narrow and too broad in determining what kind of conduct can be criminalised.
The final version will appear in a book of essays edited by Matthew Dyson entitled "Unraveling Tort and Crime"
Thursday, January 30, 2014
Kyle Graham (Santa Clara) has posted to SSRN Strict Products Liability at 50: Four Histories. The abstract provides:
This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "functionalist," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for strict products liability as a superior alternative to negligence. The third examines why tort law eclipsed warranty as the doctrinal forum for products-liability reform. This article concludes that these non-canonical accounts have been obscured due to patterns and biases that recur across descriptions of doctrinal development in tort law.
Thursday, January 23, 2014
Jay Feinman & Caitlin Edwards (Rutgers-Camden) have posted to SSRN Henningsen v. Bloomfiled Motors, Inc. (1960): Promoting Product Safety by Protecting Consumers of Defective Goods. The abstract provides:
Safety recalls, child-safe toys, and other consumer safety protections are taken for granted today, but there was a time not so long ago when everyday products were dangerous and consumers who were injured by cars, toys, or other products faced a difficult road to recover compensation from manufacturers. About fifty years ago all of this changed, drastically and in a short period of time. The catalyst for this dramatic change was an unlikely source — a woman from Keansburg, New Jersey, who was injured when her new Plymouth sedan suddenly veered into a brick wall. When she initially sued the dealer who had sold her the car and Chrysler, the manufacturer, the state of the law posed roadblocks to her recovery. The New Jersey Supreme Court recognized that change was needed and issued an opinion — Henningsen v. Bloomfield Motors, Inc. — that quickly would change the world of products liability and consumer protection.
This article, a chapter from Paul L. Tractenberg ed.," Courting Justice: 10 New Jersey Cases That Shook the Nation" (Rutgers University Press, 2013), tells the story of the facts that gave rise to Henningsen, the arguments in the courts, and the case’s role in the development of products.
Wednesday, January 15, 2014
Ori Herstein (King's College London) has posted to SSRN How Tort Law Empowers. The abstract provides:
The following realization has begun to dominate contemporary tort theory: in order to understand tort law, theorists must also focus on the legal power that tort law vests in tort victims to pursue a remedy, not only on the implications of holding tortfeasors liable for such a remedy. This insight has lead some of the leading theorists of tort law – often writing under the banner of ‘civil recourse theory’ – to suggest that tort law empowers tort victims to pursue and even to obtain redress from tortfeasors. This view has even been expanded to describe private law in general. Yet, close scrutiny reveals that tort law mostly does not vest in tort victims a legal power over the rights of tortfeasors. The same is most likely true for private law more broadly. For the sake of both descriptive accuracy and of realizing its prescriptive potential, civil recourse theory is best amended to view the legal rights and powers of tort victims, as well as the realities of civil litigation, more soberly, and with more conceptual accuracy. This article endorses and grounds the more modest and I think orthodox view on how tort law and private law more broadly empower victims of civil wrongs.
Thursday, January 9, 2014
Michael Frakes (Cornell) & Anumpam Jena (University of Chicago-Economics) have posted to SSRN Does Medical Malpractice Law Improve Health Care Quality?. The abstract provides:
Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current liability system plays at most a modest role in inducing higher levels of health care quality. We contend that this limited independent role for medical liability may be a reflection upon the structural nature of the present system of liability rules, which largely hold physicians to standards determined according to industry customs. We find evidence suggesting, however, that physician practices may respond more significantly upon a substantive alteration of this system altogether — i.e., upon a change in the clinical standards to which physicians are held in the first instance. The literature to date has largely failed to appreciate the substantive nature of liability rules and may thus be drawing limited inferences based solely on our experiences to date with damage-caps and related reforms.
Thursday, December 12, 2013
Imgard Griss‘How Judges Think: Judicial Reasoning in Tort Cases from a Comparative Perspective’(2013) 3 JETL 247
Donal Nolan‘Damage in the English Law of Negligence’(2013) 3 JETL259
Patrick O’Callaghan‘False Privacy and Information Games’ (2013) 3 JETL282
Paula Giliker‘Vicarious Liability “On the Move”: The English Supreme Court andEnterprise Liability’ (2013) 3 JETL 306
Quinten De Raedt‘Loss of a Chance in Medical Malpractice: A Double Application’ (2013) 3 JETL 314
Joseph A Page‘D Dobbs/ P Hayden/E Bublick, The Law of Torts, Practitioner Treatise Series’(2013) 3 JETL 328
Peter Stockenhuber‘G Messen,Der Anspruch auf Schadenersatz bei Verstössen gegen EU-Kartellrecht (2013) 2 JETL339
Olivier Moréteau‘François Terré (ed), Pour une réform du droit de la responsabilité civile, Collection: Thémes’(2013) 3 JETL 342
Jane Wright 'A Fenyes/ E Karner/ E Steiner (eds), Tort Law in the Jurisprudence of the European Court of Human Rights’ (2013) 3 JETL 347
Christophe Quézel-Ambrunaz‘R Goldberg (ed), Perspectives on Causation’ (2013) 3 JETL 351
Christina Eberl-Borges‘Peter North, Civil Liability for Animals’ (2013) 3 JETL 356