Thursday, January 29, 2015
Avi Dorfman (Tel Aviv) has posted to SSRN New Philosophical Foundations of Tort Law?. The abstract provides:
In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).
Tuesday, January 27, 2015
Patrick Hubbard (South Carolina) has just published Sophisticated Robots: Balancing Liability, Regulation, and Innovation in the Florida Law Review. The abstract provides:
Our lives are being transformed by large, mobile, “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements on the field to reduce the number and severity of injuries.
This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation that is necessary to develop these robots. This Article provides context for analysis by reviewing innovation and robots’ increasing size, mobility, autonomy, intelligence, and interconnections in terms of safety—particularly in terms of physical interaction with humans—and by summarizing the current legal framework for addressing personal injuries in terms of doctrine, application, and underlying policies. This Article argues that the legal system’s method of addressing physical injury from robotic machines that interact closely with humans provides an appropriate balance of innovation and liability for personal injury. It critiques claims that the system is flawed and needs fundamental change and concludes that the legal system will continue to fairly and efficiently foster the innovation of reasonably safe sophisticated robots.
Monday, January 26, 2015
Kyle Graham (Santa Clara) has posted to SSRN The Diffusion of Doctrinal Innovations in Tort Law. The abstract provides:
This article examines the diffusion of “innovations” — new ideas — in tort law. Drawing from a larger body of research into the spread of new products and ideas, this study charts and evaluates the adoption patterns associated with “successful” common-law doctrinal innovations in the law of torts. This analysis reveals recurring influences upon and tendencies within the spread of novel tort doctrines across the states, and explores the interactive qualities of the diffusion process. Furthermore, these diffusion patterns document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered diffusion dynamics associated with the ongoing diminution and fragmentation of the common-law tort dockets entertained by state supreme courts. The structural character of these influences will make it difficult, this article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid diffusion rates associated with innovations in tort law that spread during the 1960s, 1970s, and 1980s.
Tuesday, January 13, 2015
Avi Dorfman (Tel Aviv) has posted to SSRN Negligence and Accomodation: On Taking Others as They Really Are. The abstract provides:
Disagreements over the morality and the efficiency of the standard of reasonable care are at the root of the study of negligence law (and, perhaps, tort law as a whole). They typically proceed as though the most important question that needs to be addressed is that of the content of this standard, namely, the question of what reasonable care is. However, in these pages I shall argue that there exists another important question, which is to say the manner in which reasonable care is evaluated. This question, I show, is neither fixed by nor subservient to the content of the standard (whatever it is). Rather, the manner in which negligence is being assessed is partly constitutive of the morality of the reasonable care standard.
Whereas the leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of attending to the interests of others resonates well with a powerful notion of respectful accommodation of persons — that to attend to others respectfully is to engage them on their own terms (including, most importantly, their distinctive judgments and sensibilities). And to the extent that the standard of care captures the moral center of negligence law, the asymmetry in care assessment suggests that the notion of genuine respect, rather than social welfare or formal equality, is a basic virtue of the legal institution of negligence.
Monday, January 12, 2015
Kyle Logue (Michigan) has posted to SSRN Encouraging Insurers to Regulate: The Role (if Any) for Tort Law. The abstract provides:
Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to giving special premium discounts to insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law discourages insurers from engaging in the direct regulation of their insureds’ behavior. Under longstanding tort principles, if an insurer “undertakes” to provide serious risk-reduction services to an insured, the insurer can be found to have a duty of reasonable care and, should that duty be breached, held liable for any harms caused to third parties. This application of tort principles to insurance companies could be contributing to the moral hazard problem often associated with insurance — the tendency of insurance to cause risk to increase rather than decrease. This Article explores this problem and analyzes a number of ways to encourage insurers to regulate — from insurer-specific Good Samaritan statutes (which we might call a “carrot”) to the expansion of tort principles to create an affirmative duty on the part of insurers to regulate (which would definitely be a “stick”). What combination of carrots and sticks produces the optimal insurer incentives to regulate their insureds’ behavior? That is the question the Article addresses.
Tuesday, January 6, 2015
Friday, January 2, 2015
Symeon Symeonides (Willamette) has posted to SSRN Choice of Law in the American Courts in 2014: Twenty-Eighth Annual Survey. The abstract provides:
This is the Twenty-Eighth Annual Survey of American choice-of-law cases. It was written at the request of the Association of American Law Schools Section on Conflict of Laws and it is intended as a service to fellow teachers of conflicts law, both in and outside the United States.
This Survey covers cases decided by American state and federal appellate courts from January 1 to December 31, 2014, and posted on Westlaw by midnight, December 31, 2014. Of the 1,204 cases that meet these parameters, the Survey focuses on those cases that may contribute something new to the development or understanding of conflicts law — and, particularly, choice of law. The following are some of the highlights of the year:
One U.S. Supreme Court decision dealing with general jurisdiction, the second in three years, after a thirty-year silence; Seven cases deciding whether the Alien Tort Statute applies to actions filed by foreign plaintiffs against American defendants alleged to have aided and abetted the commission of international law violations outside the United States; a case involving a cross-border shooting of a Mexican boy by a U.S. Border Patrol agent; and a case arising from the imprisonment of U.S. contractor Alan Gross in Cuba;
Fifty-six court rulings striking down as unconstitutional the prohibition of same-sex marriages in 26 states, one ruling upholding the prohibition in four states, and a Texas case recognizing a California judgment that declared both male partners in a same-sex marriage to be the parents of a child conceived through artificial insemination and carried to term by a surrogate mother;
One more xenophobic statute, the eighth in four years, banning the use of certain foreign laws;
Several tort cases involving conduct-regulation conflicts and applying the law of the state of the tort, rather than the parties’ common domicile;
One state supreme court case joining the minority of courts that have rejected the doctrine of severability of choice-of-forum clauses, and several cases involving the interplay of those clauses and choice-of-law clauses;
A California Supreme Court case holding that the Federal Arbitration Act (FAA) did not preempt a California statute that prohibited waivers of “representative actions” filed by employees against employers for violating the state’s labor laws, and two cases disagreeing on whether contracting parties may avoid FAA preemption by choosing the “non-federal” part of a state’s law;
A New York case recognizing a foreign judgment, even though New York had no jurisdiction over the debtor or his assets; a Pennsylvania case giving full faith and credit to the New York judgment; and a D.C. case refusing to do so — and not only because New York did not have jurisdiction; and
Many other interesting conflicts cases involving products liability, other torts, contracts with and without choice-of-law clauses, insurance contracts, statutes of limitation, marriages by proxy, divorce, marital property, and successions.
Wednesday, December 24, 2014
Rick Rinaldi (EiC of the Widener Law Journal) has posted his Note, Fracturing the Keystone: Why Fracking in Pennsylvania Should Be Considered an Abnormally Dangerous Activity, to SSRN. The abstract provides:
During the early morning hours of December 15, 2007, Thelma and Richard Payne, an elderly couple, were startled awake when an explosion in their basement dislodged their Ohio home from its foundation. Their homestead for more than a half-century was completely destroyed due to nearby hydraulic fracturing (“fracking”) operations. In a similar instance in 2010, high levels of methane were discovered in a Pennsylvania family’s basement. The discovery came after Michael Leighton found his drinking water bubbling over the top of his 100-foot well and twenty small geysers on his property spewing water mixed with methane into nearby streams. Again the likely culprit was a nearby fracking operation. Such events epitomize just some of the risks associated with fracking, which have led many concerned citizens to vehemently voice their opposition to the practice in the Marcellus Shale region. Analyzing those risks, this comment argues that unconventional horizontal fracking should be considered an "abnormally dangerous" activity in Pennsylvania because such a classification is both legally appropriate and paramount in mitigating the future harms of fracking. Part II(A) describes the geological characteristics of the Marcellus shale deposit, including its potential gas reserves and the technological challenges of extracting it. Part II(B) provides a detailed description of the recently pioneered fracking procedure and the environmental risks it presents. Part III discusses the current regulatory framework that applies to fracking in Pennsylvania and discusses the failures of that framework to sufficiently protect the public. Part IV traces the common law development of strict liability, applies the current rule to fracking, and discusses the negative results of alternatively analyzing fracking under a negligence regime. Part V concludes that fracking will become increasingly safer through the imposition of strict liability, which will mitigate the negative environmental impacts of the industry, and in time, allow for expanding gas production through safer methods.
Monday, December 22, 2014
Claudia Landeo (Alberta-Department of Economics) has posted to SSRN Law and Economics and Tort Law: Theory and Experiments. The abstract provides:
In tort litigation, delayed settlement or impasse imposes high costs on the parties and society. Litigation institutions might influence social welfare by affecting the likelihood of out-of-court settlement and the potential injurers' investment in product safety. An appropriate design of litigation institutions and tort reform requires good knowledge of the factors that affect litigants' behavior. The combination of theoretical and experimental law and economics, which represents the cornerstone of the application of the scientific method, might enhance our understanding of the effects of litigation institutions and tort reform on settlement and deterrence.
We evaluate the interaction between theoretical and experimental law and economics in the study of tort litigation institutions. Special attention is devoted to liability, litigation and tort reform institutions, and behavioral factors that might affect impasse. Our analysis suggests a productive interaction between theoretical and experimental law and economics. In particular, findings from experimental economics work on litigation institutions indicate the presence and robustness of cognitive biases, and provide evidence of the effects of litigants' biased beliefs on the likelihood of impasse. These findings have motivated the construction of new economic models of litigation involving more empirically-relevant assumptions about litigants' beliefs. As a result of the application of the scientific method, the contributions of law and economics to the design of legal institutions might be strengthened.
Friday, December 19, 2014
Sean Williams (Texas) has posted to SSRN Dead Children: Tort Law and Investments in Child Safety. The abstract provides:
Should tort law treat cases of dead children differently than cases of dead adults? A diverse set of research — including bioethics studies, contingent valuation, and analyses of consumer behavior — all suggest that the answer is Yes. That research coalesces around a single pattern: people are willing to invest about twice as many resources in protecting children as they are in protecting adults, even when each are equally vulnerable to the relevant risk. This pattern extends to non-fatal risks as well, even those as mundane as the risk of catching a cold. These investment patterns suggest that, as a prima facie matter, a deterrence-oriented tort system should impose standards of care that are about twice as stringent for children as for adults, and award tort damages that are about twice as high for child victims. These insights — generated by focusing solely on deterrence — remain robust when we instead view tort law through the lenses of corrective justice or civil recourse. Each of these individual justice accounts of tort law is consistent with child exceptionalism, although some require fewer caveats than others. Such child exceptionalism is also consistent with plausible and attractive moral theories despite the fact that it could be framed as a deviation from formal equality. In addition to laying out the empirical and normative cases for heightened standards of care and heightened damages, the Article offers a set of tools that courts and legislatures can use to move tort law toward these goals.
Wednesday, December 10, 2014
Deborah Brake (Pittsburgh) has posted to SSRN Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation. The abstract provides:
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault.
Tuesday, December 9, 2014
Michael Stein (W&M), Christopher Guzelian (Thomas Jefferson) & Kristina Guzelian (Thomas Jefferson) have posted to SSRN Expert Testimony in Nineteenth Century Malapraxis Actions. The abstract provides:
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominent jurists disparaged testimony for commonly relating anecdotal experience rather than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.
Wednesday, December 3, 2014
If you have 7 or fewer years of teaching experience, you are eligible for the Yale/Stanford/Harvard Junior Faculty Forum, this year including Torts as a subject matter. The deadline is March 1, 2015. Details are here: Download JFF final call for submissions
Tuesday, December 2, 2014
Monday, November 24, 2014
Hanoch Dagan & Avi Dorfman (Tel Aviv) have posted to SSRN The Justice of Private Law. The abstract provides:
Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation. We criticize the traditional position as conceptually misguided and normatively disappointing. But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value.
This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent already does, underlie the law of interpersonal interactions among private individuals in a liberal state. Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitments to self-determination and substantive equality. A liberal private law — our private law — establishes frameworks of respectful interaction conducive to self-determining individuals, which are indispensable for a society where individuals recognize each other as genuinely free and equal agents.
Wednesday, November 19, 2014
Omari Scott Simmons (Wake Forest) has posted to SSRN Muted Deterrence: The Enhanced Attribution of Tort Liability to U.S. Higher Education Institutions for Student Safety. The abstract provides:
A key challenge facing modern universities is ensuring student safety. This task inevitably involves deterring risky behavior. The existing law on campus safety, however, inadequately addresses this challenge. This essay argues that an overemphasis on tort litigation fails to (i) adequately deter risky individual and institutional behaviors; (ii) provide incentives to higher education institutions to create safe campuses; and (iii) provide higher education institutions with the resources, know-how, and overall capacity to improve campus safety. Recognising the limitations of adversarial tort litigation in the student safety context, this essay, proposes a more collaborative, less adversarial, regulatory framework for making US campuses safer learning environments.
Wednesday, November 12, 2014
James Hackney (Northeastern) has posted to SSRN Guido Calabresi and the Construction of Contemporary American Legal Theory. The abstract provides:
This article was written as a contribution to a symposium honoring Judge Guido Calabresi on the occasion of his 80th birthday, and recognizing his contributions to law and economics. It situates Judge Calabresi’s academic writings, starting with his initial contributions to law and neoclassical economics, against the broader backdrop of American legal theory. The article begins with a brief biographical sketch highlighting the author’s personal connection with Judge Calabresi. It then lays out the historical relationship between legal realism and law and neoclassical economics (commonly referred to as law and economics). This provides the background for Judge Calabresi’s initial major intervention — in the form of his historic book, The Costs of Accidents — into the discourse of American legal theory. The article then discusses what the author argues is a fundamental axis around which debates concerning the meaning of law revolve: the science-politics divide. This sets the groundwork for articulating the ways in which the three dominant strands of legal theory in the 1980s — law and economics, critical legal studies, and liberal-rights theory — were centered on the issue of whether law (and legal theory) was fundamentally a political or scientific enterprise. The article ends with an extended discussion of the ways in which Judge Calabresi’s post-The Costs of Accidents writings, too often overlooked, respond to the science-politics debate in a philosophically pragmatic way that reflects (and has paved the way for) the current state of American legal theory.
Tuesday, November 11, 2014
Claudia Haupt (Columbia) has posted to SSRN Professional Speech. The abstract provides:
Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.
First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.
Friday, November 7, 2014
Maya Steinitz (Iowa) has posted to SSRN The Case for an International Court of Civil Justice. The abstract provides:
This Essay aims to start a conversation on a novel institutional solution to the problem that de facto (not de jure) there is today no forum in which foreign plaintiffs can obtain enforceable judgments against American corporations that commit mass torts overseas. That solution is the establishment of an International Court of Civil Justice (ICCJ).
The Essay starts by describing what the author refers to as "the problem of the missing forum" – the global absence of an effective court for cross-border mass torts. It then provides a blueprint for an ICCJ. In so doing, it explains why an ICCJ is politically viable and may, specifically, appeal to rather than repel corporate America.
Friday, October 31, 2014
Wei Zhang (Singapore Management University) has posted to SSRN two pieces that provide a primer to Chinese tort law. First up is The Evolution of the Law of Torts in China: The Growth of a Liability System. The abstract provides:
During the “Reform and Opening-up” years, tort disputes have become one of the main types of cases litigated in Chinese courts, and tort law has been playing a significant role in carving out the incentives of businesses and individuals in China. Since the formal legal rules on torts came into being in 1986, a large number of changes have occurred in the law of torts. The transformation of the rules, however, has eluded previous introductory works on Chinese tort law written in English. This paper is devoted to delineating these changes, which present the growth of a liability system moving predominantly in favor of tort victims. Unlike most existing English literature on Chinese tort law that survey primarily the major civil statutes, this paper places commensurate emphasis on the rules dealing with tort liabilities embedded in the administrative laws and regulations as well as the judicial interpretations. In addition, this paper also makes a rough assessment of the efficiency implications of the evolution of tort law in China. Given the exceptionally low point where the increment of victim protection in tort law started, the change of rules in China is, by and large, moving in the direction of cost internalization as required by efficiency. However, the potential improvement in efficiency is perhaps a byproduct of the development of tort law in China. The motivation behind the rule change is more likely to be loss redistribution rather than efficiency upgrade. In light of the policy-implementing orientation of the Chinese legal system and the collectivistic propensity rooted in the law of torts, political and institutional perspectives might bring us better insights into the driving force of change of law in China.
Second, Understanding the Law of Torts in China: A Political Economy Perspective. The abstract provides:
In this paper, I tried to connect the text of the Chinese tort law with the institutional context of lawmaking in China from a political economy perspective. Two determinants, political influence and populist pressure, were identified for the tort law legislation in China, and a simple spatial model was presented to demonstrate the mechanism through which these determinants might have affected the text of the law. In particular, my research suggested that, when injurers’ political influence kept constant, the populist pressure on the injurer group tended to push the tort law rules toward the pro-victim end. On the contrary, with the similar populist pressure, the politically influential injurers could induce legal rules to their advantage. Even within a particular type of torts, the subgroup of injurers who were better organized to exert political influence would be rewarded with more favorable rules on torts than their fellow injurers, especially where populist pressure was moderate. Hopefully, this research will inspire more efforts among students of Chinese law to explore the operation of law at the microscopic level against the macroscopic institutional backdrops of this country.