Thursday, April 23, 2015
Scott DeVito (Florida Coastal) & Andrew Jurs (Drake) have posted to SSRN An Overreaction to a Nonexistent Problem: Empirical Analysis of Tort Reform from the 1980s to 2000s. The abstract provides:
Proponents of tort reform have suggested it is a necessary response to rising personal injury litigation and skyrocketing insurance premiums. Yet the research into the issue has mixed results, and the necessity of tort reform has remained unproven.
We decided to research an underdeveloped area by empirically testing the real world effects of noneconomic damages caps. To do so, we assembled a database of nearly fourteen million actual cases filed between 1985 and 2009 and then measured how damages caps affect filing rates for torts. Not only could we analyze the change in filings after adoption of a cap but we could also measure the effect of elimination of a cap as well. When we did, we found something unique in the literature.
We found first that when a state adopts a noneconomic damages cap, there is a statistically significant drop in filings of all torts and for medical malpractice torts. We also found that in both the 1990’s and 2000’s, the rate of filings dropped consistently as well – both in states with tort reform but also in states without it. Therefore, our finding of a statistically significant reduction in filings in response to damages caps demonstrates a “doubling-down” effect: there is one drop in filings due to the damages cap, but there is another drop based on larger background forces.
Next, when assessing the change in filings after elimination of a damages cap, we found something initially counterintuitive but also new to the literature. While one might expect a sharp increase in filings when a cap disappears, our analysis could find no statistically significant change in the filing rate for all torts after elimination, while medical malpractice filings continued to decline overall. We believe that this finding demonstrates and quantifies, for the first time, the non-legal effect of tort reform measures discussed by commentators like Stephen Daniels and Joanne Martin.
We believe the combination of the “doubling down” on plaintiffs as well as the quantifiable non-legal changes in response to damages caps significantly modifies the cost-benefit analysis of tort reform. In Trammel v. United States, the Supreme Court stated: “we cannot escape the reality that the law on occasion adheres to doctrinal concepts long after the reasons which gave them birth have disappeared and after experience suggest the need for change.” Based on our empirical assessment, we conclude that tort reform has reached that point and call upon state legislators to reconsider these measures.
Thursday, April 16, 2015
Elizabeth Katz (Harvard-History) has posted to SSRN Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative. The abstract provides:
According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.
Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits. The most prominent example of this response is Thompson v. Thompson, 218 U.S. 611 (1910), in which the U.S. Supreme Court refused to allow a wife to sue her husband in tort for assaulting her. Judges distinguished tort actions from divorce and criminal suits because tort’s assertive legal posture and empowering remedy seemingly subverted established gender roles. In a world in which women appeared to be radically advancing in work and politics, male judges used the moral theater of their courtrooms to strongly and publicly address domestic violence but only in ways that reinforced gender and marital hierarchies.
Friday, April 3, 2015
Tuesday, March 31, 2015
I have posted to SSRN The Prosser Letters: 1919-1948. The abstract provides:
William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.
Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.
This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.
Andrew McClurg (Memphis) has posted to SSRN The Second Amendment Right to Be Negligent. The abstract provides:
Only two constitutional rights — the First and Second Amendments — have the capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law the United States has enshrined a de facto Second Amendment right to be negligent in many aspects of making, distributing, and possessing firearms, the only legal product designed to inflict what the tort system is designed to prevent.
Explaining that it is a microcosm of a much larger issue, the Article focuses on one area: allowing access to guns by criminals through theft. Hundreds of thousands of guns are stolen each year from individuals and commercial sellers. By definition, they all go directly to criminals. A substantial percentage of guns used in crime were previously stolen. Nevertheless, the common law has conferred near complete immunity on gun owners and sellers who fail to secure guns from theft when they are subsequently used to cause harm. This occurs despite frequent judicial pronouncements that the risk of firearms demands the highest degree of care in their use and keeping. To accomplish this result, courts ignore or mischaracterize fundamental scope of liability principles, rarely even reaching the question of whether reasonable care was exercised.
On the statutory front, not only have Congress and most states failed to mandate firearms security measures, Congress has — in the name of the Second Amendment — given express protection of the right to be negligent, most prominently in the form of the Protection of Lawful Commerce in Arms Act. The Act immunizes manufacturers and sellers of guns from most tort claims, including claims against commercial firearms licensees for negligent security leading to theft.
The Article argues that this government-endorsed lack of responsibility results in the under-deterrence of risky conduct that, with reasonable alterations, could avoid substantial intentional and accidental injury costs.
Friday, March 20, 2015
Nora Engstrom (Stanford) has posted her contribution to the O'Connell tribute to SSRN. Entitled Exit, Adversarialism, and the Stubborn Persistence of Tort the abstract provides:
Serious tort reformers have long tried to divert certain claims from the tort system into no-fault or “replacement” regimes where, it is said, compensation can be more easily, expeditiously, predictably, and simply delivered. Yet while many continue to champion no-fault’s expansion, surprisingly few have stopped to ask how America’s various no-fault experiments, in place for over a century, have thus far fared. Taking up that challenge, this Essay, written in memory of no-fault pioneer Jeffrey O’Connell, canvasses America’s four boldest experiments with no-fault legislation. The investigation — of workers’ compensation, automobile no-fault, the Vaccine Injury Compensation Program, and birth injury funds in Florida and Virginia — reveals that all four of our most ambitious no-fault experiments have, in significant respects, failed. Seepage from no-fault regimes and into the tort system has been a persistent problem. Further, even when compensation has been provided within existing no-fault mechanisms, the mechanisms have become bogged down by adversarialism, marked by longer times to decision and increased combativeness, attorney involvement, and reliance on formal adjudicatory procedures. Showing how and why no-fault has repeatedly fallen short, this Essay seeks to complicate conventional wisdom concerning no-fault’s ostensible advantages. And, it seeks to honor O’Connell’s proud legacy, for only by identifying what’s gone wrong, might we start anew on a path toward the creation of better and more resilient reforms.
All of the papers in the JTL tribute are now available here.
Thursday, March 19, 2015
Herb Kritzer (Minnesota) and Neil Vidmar (Duke) have posted to SSRN Lawyers on Trial: Juror Hostility to Defendants in Legal Malpractice Cases. The abstract provides:
In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.
Tuesday, March 17, 2015
Richard Ausness (Kentucky) has posted to SSRN 'Danger is My Business': The Right to Manufacture Unsafe Products. The abstract provides:
While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products liability. Other doctrines, such as the regulatory compliance defense and the contract specification defense, are aspects of the broader law of torts. Finally, a few of these doctrines, such as federal preemption and the government contractor defense, are rooted in principles of federal supremacy.
Monday, March 16, 2015
Mike Wells (Georgia) has posted to SSRN Constitutional Remedies: Reconciling Official Immunity with the Vindication of Rights. The abstract provides:
A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, or fired people on account of protected speech, or deprived them of liberty or property without due process of law, or discriminated against them in violation of equal protection. Because these backward-looking suits bear some resemblance to ordinary tort law, the doctrine is often called “constitutional tort.”
This Article examines a well-settled and routine — but destructive and quite unnecessary — consequence of the interplay between the liability rule and the official immunity doctrine. Consider two plaintiffs, Alice and Bob, each of whom sues for damages under § 1983. Suppose that both plaintiffs lose, but for different reasons. Alice establishes a violation of her constitutional rights, but fails because the defendant successfully asserts official immunity. Bob cannot show that his rights were violated in the first place. Despite the difference between their cases, current Supreme Court doctrine directs that Alice and Bob be treated the same. Both go away empty-handed. Under the Court’s approach, the competing goals behind liability and immunity are balanced in the following way: On the one hand, the aim of constitutional tort law is to compensate the plaintiff and to deter violations of rights. But on the other side of the balance, official immunity carries enough weight to override the compensation and deterrence goals. Thus, the official’s successful immunity defense carries the same force as a successful defense on the merits. Both result in total victory for the defense.
In this Article, I argue for a different conception of constitutional tort law, in which it is recognized that Alice’s case differs fundamentally from Bob’s. The point is not to question official immunity, a doctrine that has broad support from the Supreme Court. My project is to reconcile official immunity with Alice’s legitimate claim for a remedy.
Friday, March 13, 2015
Wednesday, March 11, 2015
Betsy Grey (Arizona State) has posted to SSRN The Future of Emotional Harm. The abstract provides:
Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of Torts. This Article argues that many of the justifications for curtailing this tort have been discredited by scientific developments. In particular, the rapid advances in neuroscience give greater insight into the changes that occur in the brain from emotional harm. Limited duty tests should no longer be used as proxies for validity or justified by the presumed untrustworthiness of the claim. Instead, validity evidence for emotional harm claims — like evidence of physical harm — should be entrusted to juries. This approach will reassert the jury’s role as the traditional factfinder, promote corrective justice and deterrence values, and lead to greater equity for negligent infliction of emotional distress (NIED) claimants. The traditional limitations on tort recovery, including the rules of evidence and causation, are more than adequate to avoid opening the floodgates to emotional distress claims.
Thursday, March 5, 2015
Bob Rabin (Stanford) has posted to SSRN his contribution to the JTL's O'Connell tribute. Entitled Jeffrey O'Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives, the abstract provides:
In this essay, I locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. I provide a short historical excursion to set the stage. Next, I discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offers proposal. Then, I briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section offers a concluding note.
Monday, March 2, 2015
I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute. Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.
Friday, February 27, 2015
The next issue of the Journal of Tort Law is a tribute to Jeffrey O'Connell, who died in January of 2013. From the Introduction:
O’Connell’s overriding goal was to make compensation more readily available to the injured. He saw traditional tort law as dilatory, unfair, inefficient and hence inadequate to address the pressing needs of injury victims. In pursuing reform, he necessarily took a stand in the theoretical debate about the purposes of tort law. In the typical case, he believed, tort should be compensatory; matters of individualized justice or deterrence were secondary. Given the realities of tort litigation as he saw them, O’Connell believed justice and deterrence goals were both harder to accomplish and harder to measure than a compensation objective. On this understanding, tort law is best justified as insurance and yet, for that very reason, was ripe for radical reform, given its deficiencies. At heart, O’Connell was deeply practical and pragmatic. He wanted his ideas to matter for the world and he valued the tangible good of victim compensation over what he took to be more speculative goods.
The papers that follow reference O’Connell’s pragmatism, but also branch out to touch on many different aspects of his work. Robert Rabin finds that mass tort and disaster relief claims are today being handled on terms congruent with O’Connell’s efforts to realign the tort system to focus on compensation. Kenneth Abraham and G. Edward White combine O’Connell’s love of biography with his interest in tort law to study the life and influence of a scholar who was in many ways a forerunner and kindred spirit: William Prosser. Nora Freeman Engstrom, in the spirit of O’Connell’s critiques of tort, turns the tables by subjecting no-fault programs to careful analysis. Anthony Sebok finds one of O’Connell’s early first-party insurance proposals relevant to currently heated debates over litigation finance. Zoë Sinel challenges O’Connell’s claim that tort is properly understood and assessed by its ability to deliver compensation. Finally, Christopher Robinette finds in O’Connell’s scholarship guidance as to how to begin distinguishing those tort suits worthy of individualized justice treatment from those better suited to serve a compensatory objective.
The pieces are available at De Gruyter's "Ahead of Print" section, though I believe Tony's and Nora's articles are not yet included.
Friday, February 20, 2015
Jeb Barnes (USC-Political Science) and Thomas Burke (Wellesley-Political Science) have published How Policy Shapes Politics: Rights, Courts, Litigation, and the Struggle Over Injury Compensation
How Policy Shapes Politics analyzes the politics of injury compensation in the United States, a field in which judicialized policies operate side-by-side with bureaucratized social insurance programs. The authors conclude that the choice between judicialized and bureaucratized injury compensation policies can have powerful political consequences.
By comparing the political trajectories of different types of policies, some more court-centered, others less so, the authors probe the consequences of arguably one of the most significant developments in post-World War II government, the increasingly prominent role of courts, litigation, and legal rights in politics.
Wednesday, February 18, 2015
Jonathan Cardi (Wake Forest) has posted to SSRN The Role of Negligence Duty Analysis in Employment Discrimination Cases. The abstract provides:
In a concurring opinion in the 1989 decision Price Waterhouse v. Hopkins, Justice O’Connor first referred to Title VII of the Civil Rights Act as a "statutory employment 'tort.'" Since then, the Supreme Court and federal courts generally have reified Justice O’Connor’s words, gradually altering the legal perception of employment discrimination legislation from its intended nature as a set of civil rights statutes aimed at ridding the nation of a pernicious social problem to a narrowly tailored provision of compensation for private wrongs. Courts have done so, in part, by importing doctrine from the common law of torts — particularly in the realm of factual causation and scope of liability — to interpret and fill supposed gaps in the statutes. This Article asserts that courts’ embrace of tort concepts runs even deeper than they have expressly stated — that courts have drawn not only upon the concepts of causation and scope of liability (proximate cause), but also engaged the question of whether employers owe a duty not to take allegedly discriminatory actions. The Article urges that use of duty reasoning is problematic for two torts-internal reasons. First, the nature of wrongfulness in employment discrimination cases is not analogous to negligence or, indeed, to any tort. It is therefore improper for courts to apply tort conceptions of wrongfulness to answer questions of liability in employment discrimination cases. Second, if employment discrimination claims are, as the Supreme Court has referred to them, statutory torts, then drawing upon common-law duty reasoning is improper, as it is an incorrect application of the law of statutory torts.
Monday, February 16, 2015
Benjamin Ogden (Boston University-Economics) and Keith Hylton (Boston University) have posted to SSRN Incentives to Take Care Under Contributory and Comparative Fault. The abstract provides:
Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula. We show that, under a correct application of the Hand Formula, there are differences between the two regimes: under bilateral harm, comparative negligence generates greater incentives for care, but this care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates more care, but only when such care is not socially optimal. Therefore, it is possible to socially rank negligence regimes depending upon the symmetry of potential harm and costs of care. We discuss a potential reform the court could undertake, the Retrospective Negligence Test, that when applied in the case of bilateral harm would make comparative negligence optimal.
Thursday, February 12, 2015
Tuesday, February 3, 2015
Ronen Avraham (Texas) has posted two pieces to SSRN. First, Does the Theory of Insurance Support Awarding Pain and Suffering Damages in Tort?. The abstract provides:
This chapter asks whether THE THEORY OF INSURANCE SUPPORTS AWARDING PAIN AND SUFFERING DAMAGES IN TORTS. The answer is an unequivocal “Yes.” Many commentators have argued that individuals do not (and should not) demand insurance for losses that do not lower their marginal utility of wealth. From this perspective, tort laws that provide victims with compensation for pain and suffering harms effectively force them to purchase insurance that they don’t value. This chapter disputes this logic on several levels. First, it suggests that so-called “pure non-monetary losses” are exceedingly rare in practice, and are difficult to define even in theory. Moreover, non-monetary losses are likely to be correlated with monetary losses, and this correlation generates a demand for insurance covering both types of losses under the traditional model used by law and economics scholars. Coverage of non-monetary losses can also be demanded under many plausible alternatives to expected utility theory. The chapter also takes issue with the empirical evidence that some have interpreted as suggesting a lack of demand for coverage of non-monetary losses. Finally, the chapter suggest that future advances in neuroscience may make it possible to accurately measure mental states associated with pain and suffering, obviating the need for the subjective testimony that introduces so much noise into the assessment of these damages.
Second, Estimating Pain and Suffering Damages-Paths are Many, Loss is One. The abstract provides:
Opponents of pain and suffering damages argue that, unlike pecuniary damages, pain and suffering damages are hard to quantify accurately. They argue that victims exaggerate their losses to receive higher damage awards, so that awarding pain and suffering damages may frustrate the function of tort law by compensating the victims too highly and arbitrarily. Another argument against pain and suffering damages is that the difficulty in objective measurement leaves the potential for enormous variance in awards at the discretion of individual judges and juries. This individual discretion may create a lack of horizontal equity and thus impede consistency among awards for like victims.
In a recent paper I argued that from a law and economics perspective pain and suffering damages should be fully compensated and should receive the same “respect” that economic damages receive (Avraham, 2015). I provided several arguments for that view. In this chapter I survey a number of solutions discussed in the literature on how to simplify the estimation of pain and suffering damages to cut administrative costs. My goal is to demonstrate the feasibility of the task of estimating the loss more than to recommend any specific path to it.
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).