TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, September 29, 2016

JOTWELL Torts: Keating on Ewing on Corporate Responsibiilty and the Structure of Tort Law

Goldberg & Zipursky on the Supreme Court and Tort Law

John Goldberg & Ben Zipursky have posted to SSRN The Supreme Court's Stealth Return to the Common Law of Torts.  The abstract provides:

In its famous 1938 Erie decision, the U.S. Supreme Court deemed itself without power to make general common law. Yet while the rule of Erie remains, the Court has strayed from its spirit. Using two lines of cases as representative of a larger trend – one involving First Amendment limits on claims for defamation, invasion of privacy, and infliction of emotional distress, the other concerning the preemption of state products liability law – we explain how the Court has increasingly empowered federal courts to serve as fora in which repeat-player defendants are offered a ‘second bite at the apple.’ This is precisely the role for federal courts that Erie rejected.

(Via Solum/LTB)

September 29, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, September 28, 2016

Silver et al. on Med Mal Settlements in the Shadow of Insurance

Charles Silver, David Hyman, Bernard Black, and Myungho Paik have posted to SSRN Policy Limits, Payouts, and Blood Money:  Medical Malpractice Settlements in the Shadow of Insurance.  The abstract provides:

In prior research, we found that policy limits in Texas medical malpractice (“med mal”) cases often served as de facto caps on recoveries in both tried and settled cases. We also found that physicians faced little personal exposure on malpractice claims. Out-of-pocket payments (OOPPs) by physicians were rare and usually small. Physicians could reduce their personal exposure to near zero by carrying $1 million in primary coverage ― a standard amount in many states. Finally, the real amount of insurance coverage purchased by physicians with paid claims declined substantially over 1988–1999, consistent with physicians learning over time how low the OOPP risk was and deciding to carry less coverage.

We now revisit our findings, using an extended dataset (1988–2005) that lets us study policies purchased through 2003, which encompasses the period during which Texas experienced a med mal insurance crisis (1999–2003) and adopted tort reform to limit med mal lawsuits (2003). Our updated findings are largely consistent with our original findings: policy limits continue to cap recoveries; physicians still rarely make OOPPs; most OOPPs are modest; and real policy limits continue to shrink. We also find evidence that, at the end of the extended period, physicians often purchased less coverage (i.e., policies with limits of $100,000–$200,000 instead of $500,000–$1 million).

Our findings have important policy implications. If physicians carry less real coverage over time, lawsuits should become less profitable. This will make it harder for injured patients to find plaintiffs’ lawyers willing to handle their cases; shift the cost of medical injuries away from providers and toward patients and first-party health insurers; weaken liability insurers’ incentives to monitor providers; and diminish the (already modest) deterrent effect of tort law. If these findings are representative, they may help explain the nationwide decline in med mal claiming that we document elsewhere. Finally, our findings raise questions about the explanatory power of Baker’s “blood money” norm, at least for med mal litigation.

September 28, 2016 in Scholarship | Permalink | Comments (0)

Monday, September 26, 2016

Wriggins on Gifford & Jones on Tort Law and Race

Jenny Wriggins has reviewed Don Gifford and Brian Jones's Keeping Cases from Black Juries in the Washington & Lee Law Review Online.  The abstract provides:

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a question that is probably impossible to definitively answer but that is very important to explore: where state legislatures and courts continue to retain outmoded tort doctrines like contributory negligence, which tend to limit plaintiffs’ access to juries, is this because state legislatures and judges believe juries with large concentrations of African-Americans and low-income people will unacceptably distribute wealth to plaintiffs? The term “Bronx effect” alludes to this alleged phenomenon. No other article has rigorously tried to link the so-called Bronx effect with the perpetuation of outmoded tort doctrines. The authors use a complex interdisciplinary approach to rank states in terms of the degree to which their tort doctrines deny plaintiffs’ access to juries. Digging deep into factors that might affect a state’s ranking, they then find strong correlations between a state’s law making it difficult for plaintiffs to reach a jury, and a state’s having a large African-American population and/or being part of the South. This and other findings in the article are significant, bringing to light a race-based exclusionary pattern in the legal system. The pattern of keeping cases from black buries also likely leads to undercompensation of African-American plaintiffs, my response explains. The article deserves a place in torts scholarship generally, in critical race scholarship, and in empirical legal scholarship. While it is not surprising that definitive causal conclusions are lacking, implicit bias may shed light on the mechanisms by which these outmoded doctrines endure. The article’s calls for reform are reasonable in light of the evidence of the study and other torts scholarship.

September 26, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, September 21, 2016

Robinson et al. on Warnings

Lisa Robinson, Kip Viscusi, and Richard Zeckhauser have posted to SSRN Efficient Warnings, Not 'Wolf or Rabbit' Warnings.   The abstract provides:

Governments often require that products carry warnings to inform people about risks. The warnings approach, as opposed to the command and control approach to risk regulation, functions as a decentralized regulatory mechanism that empowers individuals to make decisions that take into account their own circumstances and preferences. Thus, individuals will be aware of the risks and the value of taking precautions, and they may avoid a product that others consume if they find the risk unacceptable. Ideally, warnings would allow individuals to assess both their personal level of risk and the benefits they will receive from another unit of consumption. Then those receiving positive expected benefits will consume more; those receiving negative net benefits will curtail their consumption. Only Pangloss would be happy with the current warning system. It fails miserably at distinguishing between large and small risks; that is to say between wolves and rabbits. Such a system is of little value, since people quickly learn to ignore a warning, given that rabbits, which pose little danger, are many times more plentiful than wolves. When a wolf is truly present, people all too often ignore the warning, having been conditioned to believe that such warnings rarely connote a serious threat. We illustrate the clumsy-discrimination issue with examples related to cigarette labeling, mercury in seafood, trans fat in food, and California’s Proposition 65. We argue that the decision to require a warning and the wording of the warning should be designed in a manner that will lead consumers to roughly assess their accurate risk level, or to at least distinguish between serious and mild risks. Empowering individuals to make appropriate risk decisions is a worthwhile goal. The present system fails to provide them with the requisite information.

September 21, 2016 in Scholarship | Permalink | Comments (0)

Friday, September 16, 2016

Geistfeld on the Economic Loss Rule

Mark Geistfeld has posted to SSRN The Contractually Based Economic Loss Rule in Tort Law:  Endangered Consumers and the Error of East River Steamship.  The abstract provides:

The rule of strict products liability has been widely adopted in the U.S., subjecting manufacturers and other product distributors to strict tort liability for physical harms proximately caused by defective products. The scope of strict products liability has also been widely limited to bar tort recovery for cases in which the defect only damaged the product itself, causing pure economic losses such as repair costs and lost profits. In these cases, a growing majority of courts have followed the approach charted by the U.S. Supreme Court in East River Steamship Corp. v. Transamerica Delavel Inc., which barred tort recovery for stand-alone economic harms to ensure that contract law does not “drown in a sea of tort.” Relying on this reasoning, other courts have applied the rule to dismiss tort claims for pure economic losses caused by the negligent performance of a service contract.

As specified by East River Steamship, the economic loss rule is fully defined by two formal properties. If the form of the parties’ relationship permits the allocation of loss by contracting, and if the form of the alleged injury is for pure economic loss, then the rule bars tort recovery. Across the full range of tort cases, however, these two formal properties do not always determine whether tort law permits recovery for pure economic loss, creating a body of case law that appears to be in considerable disarray.

The economic loss rule is routinely justified with a contracting rationale, yet that rationale has never been substantively developed. Doing so shows that the availability of tort recovery for pure economic losses depends on whether the ordinary consumer has the requisite information to protect the relevant set of interests by contracting. In considering the allocation of liability for economic losses that only implicate economic interests in lost profits and the like, the ordinary consumer is sufficiently well informed to protect these interests by contracting. But as established by the substantive rationale for strict products liability, the ordinary consumer is unable to make informed contractual decisions about product risks threatening physical harm. The same contracting problem extends to certain types of pure economic loss, including the financial costs of medical monitoring and asbestos abatement. Consequently, the substantive contracting rationale justifies an intermediate economic loss rule that permits endangered consumers to recover tort damages for these types of pure economic loss while otherwise denying tort recovery for disappointed product users. The same conclusion applies to service contracts. This contractually based intermediate economic loss rule explains the full body of case law while being substantively consistent with the widely adopted rule of strict products liability, unlike the East River Steamship formulation.

September 16, 2016 in Scholarship | Permalink | Comments (0)

Friday, September 9, 2016

Arbel & Kaplan on Apologies

Yonathan Arbel & Yotam Kaplan have posted to SSRN Tort Reform through the Backdoor:  A Critique of Law & Apologies.  The abstract provides:

In this Article we show how the biggest tort reform of the last decade was passed through the backdoor with the blessing of its staunchest opponents. We argue that the widely-endorsed apology law reform — a change in the national legal landscape that privileged apologies — is, in fact, a mechanism of tort reform, used to limit victims’ recovery and shield injurers from liability. While legal scholars overlooked this effect, commercial interests seized the opportunity and are in the process of transforming state and federal law with the unwitting support of the public.

September 9, 2016 in Scholarship | Permalink | Comments (0)

Friday, August 26, 2016

Two from Hart Publishing

Hart Publishing has published James Edelman and Elise Bant's Unjust Enrichment.  From the blurb:

Unjust enrichment is one of the least understood of the major branches of private law. This book builds on the 2006 work by the same authors, which examined the developing law of unjust enrichment in Australia. The refinement of the authors' thinking, responding to novel issues and circumstances that have arisen in the maturing case law, has required many chapters of the book to be completely rewritten. The scope of the book is also much broader. It concerns the principles of the law of unjust enrichment in Australia, New Zealand, England and Canada. Major decisions of the highest courts of these jurisdictions in the last decade provide a fertile basis for examining the underlying principles and foundations of this subject. The book uses the leading cases, particularly in England and Australia, to distil and explain the fundamental principles of this branch of private law. The cases discussed are current as of 1 May 2016 although the most recent could only be included in footnotes.

For a 20% discount, download this flyer:  Download Edelman_Bant

Hart has also published Alan Beever's A Theory of Tort Liability.  From the blurb:

This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.

For a 20% discount, download this flyer:  Download Beever

August 26, 2016 in Books, Scholarship | Permalink | Comments (0)

Sant'Ambrogio & Zimmerman on Agency Class Actions

Michael Sant'Ambrogio and Adam Zimmerman have posted to SSRN Inside the Agency Class Action.  The abstract provides:

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

August 26, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, August 24, 2016

Abraham & White on Party Testimony and Tort Law

Ken Abraham & Ted White have posted to SSRN The Transformation of the Civil Trial and the Emergence of American Tort Law.  The abstract provides:

Everyone agrees that American tort law expanded significantly in the late nineteenth century. But the story of that change, as usually told, is radically incomplete. One important precondition of tort law as we now know it was a major change in evidence law, one that only began to emerge after 1850. Before then, plaintiffs, defendants, and other “interested” parties were almost universally prohibited from testifying in civil trials. With this prohibition on party testimony, what the jury knew about the facts underlying a tort action was derivative and incomplete. Far fewer tort actions were brought at all, because often the only evidence available to the plaintiff was his or her own account of what had happened, and that was inadmissible. But with the change, victims of personal injury were now able to describe, before juries, the circumstances in which they had been injured. They were able to talk about what they had done, what the entities they were suing had done or not done, and how they had suffered. They no longer needed the fortuitous presence of third-party witnesses to elicit testimony about how had they had been injured. The abolition of the prohibition on party testimony, in short, made it much easier to succeed in personal injury lawsuits.

At stake in this transformation was the very epistemology of the civil trial. With the admission of party testimony, civil trials went from being pre-modern efforts to resolve disputes whose outcomes were affected by the spiritual weight assigned to oaths taken by third-party witnesses, to the modern searches for factual truth that we now (incorrectly) assume they always have been. Without this transformation, other factors that later brought about modern tort liability could not have exercised the influence that they did have. The transformation created the very conditions under which modern tort law could, and then did, emerge. Yet the transformation and its significance for tort law have gone largely unrecognized. Modern tort scholars appear to be completely unaware of the prohibition on party testimony, and have therefore failed for more than a century to take it into account in the way they have written and taught about the development of the law of torts. Because the rules and practices that preceded the transformation have now completely disappeared from modern torts cases, what it accomplished may appear, incorrectly, to have always been the case. But it is lack of visibility, rather than lack of responsibility, that has actually been at work in hiding the significance of the transformation for the emergence of modern tort law.

(Via Solum/LTB)

August 24, 2016 in Scholarship | Permalink | Comments (0)

Tuesday, August 23, 2016

Hylton on Patent Infringement Damages

Keith Hylton has posted to SSRN Enhanced Damages for Patent Infringement:  A Normative Approach.  The abstract provides:

In Halo Electronics v. Pulse Electronics the Supreme Court granted greater discretion to lower courts to enhance damages for patent infringement. This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society’s welfare. Patent damages should therefore balance society’s interest in encouraging innovation against the need to regulate infringement incentives. Although the analysis here is mostly normative and draws heavily on the economic theory of penalties, the aim of this paper is to provide a set of practical guidelines courts can follow in explaining, justifying, and developing rules to structure the discretion that Halo has returned to them.

August 23, 2016 in Damages, Scholarship | Permalink | Comments (0)

Monday, August 22, 2016

JOTWELL Torts: Bublick on Nolan on Preventive Damages

Over at JOTWELL, Ellie Bublick reviews Donal Nolan's Preventive Damages.

August 22, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Friday, August 5, 2016

Dillbary, Edwards & Vars on the Costs of Suicide

Shahar Dillbary, Griffin Edwards, and Fredrick Vars have posted to SSRN The Costs of Suicide.  The abstract provides:

This article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a 50-state panel regression for 1981 to 2013, we find that states that would hold liable psychiatrists (but not other doctors) for malpractice resulting in a suicide experienced a 12.8% increase in suicides. The effect is even stronger, 16.8%, when we include controls. We do not believe this is because suicide prevention doesn’t work. Rather, we theorize that it is because some psychiatrists facing potential liability choose not to work with patients at high risk for suicide. The article makes an important contribution to the law of proximate cause. Traditionally, one could not be liable for malpractice that causes another’s suicide—the suicide was considered a superseding and intervening cause. About half of states retain the old common law rule. Others have created exceptions for psychiatrists only, or for all doctors, and some have abandoned the old rule entirely. Our findings suggest that expanding liability for psychiatrists may have an adverse affect. Accordingly, this article suggests that the best policy might be to retain or revive the traditional no-liability-for-suicide rule for mental health specialists. The implications are enormous: over 40,000 people in the United States die each year from suicide.

August 5, 2016 in Scholarship | Permalink | Comments (1)

Tuesday, August 2, 2016

Schwarcz on a Unified Theory of Insurance Law

Daniel Schwarcz has posted to SSRN A Unified Theory of Insurance Law:  The Clarification, Production, and Dissemination of Coverage Information.  The abstract provides:

The central goal of insurance law is to clarify, produce, and disseminate information about the scope of insurers’ coverage obligations to policyholders. This Article examines how insurance law and regulation seek to achieve these objectives, and to what ends. To do so, it distinguishes among three different types of coverage information: (i) purchaser information, or coverage information that is communicated to policyholders at the time they purchase coverage; (ii) policy information, or coverage information that is contained within the four corners of the insurance policy; and (iii) judicial information, which is coverage information that is ascertainable only after researching judicial opinions resolving coverage disputes. The Article shows how each of these three forms of coverage information can promote more efficient insurance markets, frequently in ways that are largely overlooked or under-appreciated by courts and commentators. This framework not only helps illuminate the underlying structure of insurance law. It also sheds new light on various long-standing disputes in the field, which often require prioritization and trade-offs among the three different types of coverage information. For instance, the Article suggests that one important reason for embracing a sophisticated policyholder exception to the ambiguity rule is that doing so produces judicial information at the expense of policy information, a sensible tradeoff with respect to sophisticated policyholders. Similarly, the Article argues that, contrary to the ordinary rule, courts should generally refuse to admit extrinsic evidence to disambiguate policy language when it comes to consumer-oriented policies, because doing so can undermine the production of policy information when purchaser information is present. Yet these two types of information serve very different purposes in the insurance context. More generally, the Article suggests that a substantial number of perennial disputes in insurance law can be helpfully analyzed by reference to their impact on purchaser information, policy information, and judicial information.

August 2, 2016 in Scholarship | Permalink | Comments (0)

Monday, August 1, 2016

Steinitz & Gowder on Transnational Litigation as Prisoner's Dilemma

Maya Steinitz and Paul Gowder have posted to SSRN Transnational Litigation as a Prisoner's Dilemma.  The abstract provides:

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.

August 1, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, July 27, 2016

Hnylka on Recklessness in Sports Injury Litigation in California

Joseph Hnylka has posted to SSRN California Drops the Ball:  The Lack of a Clear Approach to Recklessness in Sports Injury Litigation.  The abstract provides:

California jurisprudence lacks a uniform, clear, and manageable approach to recklessness in sport injury cases. In Knight v. Jewett, 3 Cal. 4th 296 (1992), the California Supreme Court adopted a unique “duty” approach for primary assumption of risk cases involving sports. The Court ruled that a plaintiff’s subjective knowledge and awareness of risks were irrelevant. Instead, the Court noted that the focus of the inquiry should be whether “in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff.” Under the new duty approach, although there is no duty to protect a plaintiff from risks inherent in the sport itself, participants, coaches, and instructors will be liable for intentionally injuring the plaintiff or engaging in conduct that is “so reckless as to be totally outside the range of ordinary activity involved in the sport.” In the past two decades, California recklessness cases involving coaches and sport participants have become confusing. Courts lack a uniform approach and continue to apply different standards for recklessness.

First, courts have difficulty applying the California Supreme Court’s definition of recklessness, which requires courts to determine whether conduct is “totally outside the range of ordinary activity involved in the sport.” This standard provides no guidance to the court or to the trier of fact who must distinguish reckless conduct from negligent or careless conduct.

Second, courts are confused by the relationship between the concepts of recklessness and inherent risk. The concept of inherent risk is critical to the application of the primary assumption of risk doctrine. Inherent risk defines duty, and a defendant has no duty to protect plaintiff from risks inherent in the sport. However, because recklessness requires conduct “totally outside the range of ordinary activity involved in the sport,” does a finding that plaintiff was injured by a risk inherent in the sport preclude a finding of recklessness? When a court rules that a risk is not inherent, is the court also saying the risk is “totally outside the range of ordinary activity involved in the sport”?

Third, California’s courts are confused by the relationship, if any, between recklessness and the defendant’s duty not to increase the risk. Are these duties essentially the same when defendant is a coach or sport participant? If not, may courts and plaintiff’s attorneys use the duty not to increase the risk as a vehicle to bypass the intentional/reckless standard and instead apply a negligence standard to coaches and participants in sport injury cases?

Fourth, some courts of appeal, perhaps frustrated by the lack of a clear standard for recklessness, have traveled beyond the California Supreme Court’s recklessness definition and have used different standards to determine whether a defendant’s conduct was reckless. Some courts have used the Restatement of Torts to define recklessness in sports injury cases. Other courts have used a policy-based test for recklessness.

The confusion can be significantly decreased, and perhaps eliminated, if the courts adopt a uniform, policy-based approach to inherent risk and use the Restatement standard for recklessness in sport injury cases. Under the policy-based approach to inherent risk, a risk is inherent if the prohibition of the defendant’s conduct would neither chill vigorous participation in the sport or activity nor alter the nature of the sport or activity. California courts also should use the Restatement standard for recklessness in sport injury cases. The Restatement approach can be used as a recklessness standard in sport injury cases without difficulty if the question of recklessness is raised, as it should be, after the court has applied the policy-based test for inherent risk, suggested above. Finally, the courts should abandon the defendant’s duty not to increase the risk beyond what is inherent in a sport. The duty not to increase the risk is unnecessary and only increases confusion.

July 27, 2016 in Scholarship, Sports | Permalink | Comments (0)

Monday, July 18, 2016

Most-Cited Torts/Products Liability Scholars (2010-2014)

Brian Leiter has posted the most-cited torts and products liability scholars in the period 2010-2014.  The data is drawn from a 2015 study led by Gregory Sisk.

Rank

Name

School

Citations

Age in 2016

1

John C.P. Goldberg

Harvard University

  550

55

2

Benjamin Zipursky

Fordham University

  470

56

3

Tom Baker

University of Pennsylvania

  450

57

4

Robert Rabin

Stanford University

  410

77

5

Catherine Sharkey

New York University

  400

46

6

Kenneth Abraham

University of Virginia

  350

70

7

Anita Bernstein

Brooklyn Law School

  290

55

 

Stephen Sugarman

University of California, Berkeley

  290

74

9

David Rosenberg

Harvard University

  270

73 (est.)

10

Michael Green

Wake Forest University

  240

66

   

Other highly-cited scholars who work partly in these areas

   
 

Richard Epstein

New York University; University of Chicago

2680

73

 

Steven Shavell

Harvard University

1340

70

 

Saul Levmore

University of Chicago

  550

63

 

Keith Hylton

Boston University

  440

56

July 18, 2016 in Scholarship, TortsProfs | Permalink | Comments (0)

Thursday, July 7, 2016

Sharkey on the Relationship Between the Administrative State and the Common Law

Cathy Sharkey has posted to SSRN The Administrative State and the Common Law:  Regulatory Substitutes or Complements?  The abstract provides:

The modern administrative state looms larger than ever, and grows at an ever-accelerating pace. Not everyone is pleased with these developments. Four such individuals — Chief Justice Roberts, Justices Thomas, Alito, and the late Justice Scalia — have expressed their displeasure, indeed their alarm, with consistency, clarity, and vigor. They warn that the rise of administrative agencies, and the attendant ascendance of doctrines of mandatory judicial deference to agency interpretations of federal law, signals no less than the end of our government’s separation-of-powers structure, and our right to live our lives without fear of bureaucratic encroachment at every turn. Their opinions and dissents sounding this theme reverberate with seemingly unprecedented urgency in the face of a never-before-encountered threat.

As it turns out, however, the same alarm bell was sounded decades ago — by Roscoe Pound. Pound viewed administrative action as lawless, capricious, and marred by prejudice. He warned that agencies were self-interested, too powerful, and ever grasping for even more power.

After outlining the uncannily similar attitude towards agencies expressed by Pound and our Supreme Court’s conservative core, this Article probes how those views diverge. For Pound, the ideal regulatory alternative to agency action was the common law of torts, which he characterized as the last bastion of a democratic society. This is decidedly not the view of the conservative core. Their antagonism towards the common law of torts, which apparently runs even deeper than their hostility towards agencies, is on full display in their federal preemption decisions. How, then, to fill the regulatory void the conservative core seems to leave agape? This Article proposes one possible path to the answer.

Drawing inspiration from the views of Pound himself, as well as the work of Guido Calabresi, this Article proposes that courts should adopt an altogether new approach, one whereby they effectively incorporate input from federal agencies, while at the same time ensuring that such agencies do not overreach. This need not entail the wholesale rejection of agency interpretive authority espoused by the conservative core in its non-preemption decisions. Instead, and as even Pound recognized, courts can and should exercise oversight to ensure that agency interpretations and conclusions are backed by responsible rulemaking procedures and empirical support. This approach can lead to an effective tort-agency partnership, where the administrative state and common law can operate as regulatory complements.

July 7, 2016 in Scholarship | Permalink | Comments (0)

Friday, July 1, 2016

JOTWELL Torts: Chamallas on Swan on Bystanders and Bullies

Martha Chamallas reviews Sarah Swan's Bystander Interventions at JOTWELL.

July 1, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, June 27, 2016

French on Gawker and the $140M Hulk Hogan Verdict

Christopher French has posted to SSRN Sex, Videos, and Insurance:  How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict.  The abstract provides:

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most people for: 1) the shockingly high verdict amount of $140 million awarded to a celebrity adulterer who was filmed having sex with his best friend’s wife, and 2) the battle between what constitutes the outer boundaries of what is considered “news” under the First Amendment and a celebrity’s right to privacy. The case also should be remembered, however, for the lesson it provides business owners: instead of facing a damage award that forced Gawker to file for bankruptcy and to now seek relief on appeal, Gawker actually could have avoided paying any portion of the damage award. How could Gawker have obtained that result? Insurance. This article debunks the conventional wisdom that insurance does not cover intentional torts such as invasion of privacy or punitive damage awards and that it is against public policy to allow insurance to cover intentional torts and punitive damages. Consequently, if Gawker had purchased appropriate insurance, then it may have been able to avoid paying any portion of the ultimate damage award.

June 27, 2016 in Current Affairs, Scholarship | Permalink | Comments (0)