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.
Monday, October 27, 2014
Wednesday, October 22, 2014
The AALS Torts & Compensation Systems Section Newsletter is available here: Download Torts_Newsletter_2014. Section Secretary Leslie Kendrick drafted it, with the help of Kristin Glover, Research Librarian at UVa Law.
Monday, October 20, 2014
Francesco Parisi, Daniel Pi, Barbara Luppi, and Iole Fargnoli have posted to SSRN Deterrence of Wrongdoing in Ancient Law. The abstract provides:
Ancient laws addressed all types of wrongdoing with a single set of remedies that over time pursued a changing mix of retaliatory, punitive and compensatory objectives. In this paper, we consider the historical transition from retaliatory to punitive justice, and the subsequent transition from punitive to compensatory justice. This paper shows how the optimal level of enforcement varies under the three corrective regimes. Crimes that create a larger net social loss require lower levels of enforcement under retaliatory regimes. The optimal level of enforcement is instead independent of the degree of inefficiency of the crime when punitive and compensatory remedies are utilized. The paper provides several historical illustrations and sheds light on some of the legal paradoxes of ancient law.
Tuesday, October 14, 2014
Keith Hylton (Boston University) has posted to SSRN Nuisance. The abstract provides:
This essay sets out the law and the economic theory of nuisance. Nuisance law serves a regulatory function: it induces actors to choose the socially preferred level of an activity by imposing liability when the externalized costs of the activity are substantially greater than the externalized benefits or not reciprocal to other background external costs. Proximate cause doctrine plays a role in supplementing nuisance law.
Tuesday, October 7, 2014
Mark Geistfeld (NYU) has posted to SSRN Risk Distribution and the Law of Torts: Carrying Calabresi Further. The abstract provides:
In a seminal article written almost 50 years ago, Guido Calabresi explained that risk distribution is an ambiguous concept that can refer to the manner in which tort liability affects the allocation of scarce resources, the spreading of losses across society, or the attainment of normatively desirable distributive outcomes. The first two conceptions are combined in the (now) conventional economic analysis of tort law, a methodological approach that is routinely associated with Calabresi. In contrast, the remaining conception of risk distribution that Calabresi identified — the attainment of normatively desirable distributive outcomes — is not ordinarily associated with the economic analysis of tort law, and yet this conception is the one that Calabresi has repeatedly invoked as being of decisive importance. In doing so, Calabresi has described how economic analysis can inform distributive questions within tort law, although he never fully developed this approach.
In this article, I try to carry Calabresi further by more rigorously showing how distributive economic analysis can be relevant to the normative evaluation of tort law. In contrast to Calabresi’s conclusion about the “pointlessness of Pareto,” I first argue that the Pareto principle embodies an autonomy-based compensatory norm that tort law can rely on to implement corrective justice under nonideal conditions that foreclose fully consensual compensatory exchanges. Within the context of these forced exchanges, a compensatory payment satisfies a compensatory obligation, which in turn is defined by the correlative compensatory right. Consequently, I next identify the substantive properties of a compensatory tort right and show how the right holder’s compensatory demands can be fully satisfied by the duty holder’s exercise of reasonable care in a wide range of cases. A compensatory norm can be fully implemented by the distribution of risk without an entitlement to compensatory damages in the event of injury, a conclusion that sheds new light on Calabresi’s original insight about the varied meanings of risk distribution within tort law.
Finally, I employ distributive economic analysis to show how the tort system can be conceptualized as a compensatory mechanism. Tort compensation is not merely a form of accident insurance as assumed by the conventional economic analysis of tort law; it fits readily into Calabresi’s taxonomy of desirable legal innovations that shift the Pareto frontier outwards. By expanding the feasible set of fully compensatory outcomes that can be attained under existing social conditions, the tort system enables individuals to engage in new risky activities while adequately compensating those who are disadvantaged by the risky behavior. The tort system has a normative dimension that is brought into sharp relief by the type of distributive economic analysis that has been championed by Calabresi but neglected by the conventional economic analysis of tort law.
Monday, September 22, 2014
Sunday, September 21, 2014
A study with a lead author from the Cleveland Clinic, published in JAMA Internal Medicine, concludes that purely defensive medicine accounts for 2.9% of U.S. healthcare costs. The study is available for purchase here. The L.A. Times's "The Economy Hub" discusses the study here.
Wednesday, September 17, 2014
Steve Hedley (University College Cork) has posted to SSRN Obligations: (Local) Politics or (Universal) Reason?. The abstract provides:
Obligations is both a local institution, influenced by politics, and a universal institution, influenced by reason. It is a distraction to ask which vision should be allowed to predominate: neither truth should be allowed to obscure the other. The real question is how best to accommodate both. This paper approaches the question by comparing two very different descriptions of private law: Ernest Weinrib’s "The Idea of Private Law" (a universal description not expressly tied to any legal system, beyond that it is based on the common law) and Merkin and Steele’s "Insurance and the Law of Obligations" (which is explicitly tied to the legal system of England/Wales). While there are considerable differences between the two (and I imagine that neither approach seems to value the other very much) there are also some surprising similarities between them, raising questions as to the proper perspective from which to describe private law.