TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, April 21, 2017

Yuracko & Avraham on Race-Based Tort Damages

Kim Yuracko & Ronen Avraham have posted to SSRN Valuing Black Lives:  A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages.  The abstract provides:

In 2011, a young couple eagerly expecting the birth of their first child moved into an apartment in Brooklyn, New York, excited to have a new home for their growing family. Their child, a son, was born healthy soon thereafter. One year later, however, the couple received devastating news. A routine medical exam had detected lead in their young son’s blood. It turned out that the dust from lead paint in their new home had been quietly poisoning their baby. The family quickly moved out, but permanent damage to the baby’s central nervous system had been done. Over the next several years he would manifest significant cognitive delays as well as severe social and emotional impairments. The baby’s mother sued and the landlord was found negligent.

In calculating damages, the critical question for the jury was how much would this young child have earned over the course of his life had he not become injured. In answering this question, experts for both the plaintiff and the defendant took into consideration, albeit to different extents, the fact that the baby was Hispanic and used this fact to offer lower damage estimates than they would have had the baby been white. Relying on race-based data to calculate tort damages is, after all, standard practice. The only thing unusual about the case was that the judge, Jack Weinstein, of the Eastern District of New, refused to allow it.

April 21, 2017 in Scholarship | Permalink | Comments (0)

Monday, April 17, 2017

Lewis on Tort Tactics

Richard Lewis has posted to SSRN Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies The abstract provides:
This article reveals some of the tactics which lawyers may use when conducting personal injury litigation in the U.K. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.

April 17, 2017 in Scholarship | Permalink | Comments (0)

Sunday, April 16, 2017

JOTWELL Torts: Engstrom on Engel on the Lack of Litigiousness

At JOTWELL, Nora Engstrom reviews David Engel's The Myth of the Litigious Society:  Why We Don't Sue.

April 16, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, April 12, 2017

Engstrom on RICO and Fraud in Tort Claims

Nora Engstrom has posted to SSRN Retaliatory RICO and the Puzzle of Fraudulent Claiming.  The abstract provides:

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.

Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.

April 12, 2017 in Scholarship | Permalink | Comments (0)

Friday, April 7, 2017

Tilley on Tort Theory

Cristina Tilley has posted to SSRN Tort Law Inside Out.  The abstract provides:

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement.

Tort law’s state goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community – closed and open – can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. A survey of American tort cases confirms that courts have been fluctuating intuitively between local morality norms and national efficiency norms for decades, without fully acknowledging or operationalizing this practice.

Pivoting from theory to practice, the Article suggests that tort law should embrace and refine its ability to toggle between local morality and national efficiency. The Article briefly sketches how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms – and therefore liability – would be expected to vary within adjudicative communities. Making this normative toggle explicit would both enhance the internal integrity of tort law and improve tort law’s external standing relative to other bodies of law such as the Constitution and federal statutes. Moreover, the Article concludes, understanding tort liability as an expression of particular community values might prevent the constitutional override of injury verdicts arising from protected behavior such as gun ownership or speech.

April 7, 2017 in Scholarship | Permalink | Comments (0)

Friday, March 31, 2017

Goudkamp & Nolan on Contributory Negligence at the Appellate Level

James Goudkamp and Donal Nolan have posted to SSRN Contributory Negligence on Appeal.  The abstract provides:

Contributory negligence is a private law doctrine of considerable practical importance, and trial court decisions applying the doctrine are frequently the subject of appeals. In this article, we report the key findings of an empirical study of the operation of the contributory negligence doctrine in the Court of Appeal. A fuller report of the results of our study can be found in James Goudkamp and Donal Nolan, “Contributory Negligence in the Court of Appeal: An Empirical Study” (2017) 37 Legal Studies (forthcoming). This study builds upon an earlier exploration of the handling of the contributory negligence doctrine at first instance: James Goudkamp and Donal Nolan, “Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions” (2016) 79 Modern Law Review 575.

March 31, 2017 in Scholarship | Permalink | Comments (0)

Friday, March 24, 2017

Lens on Defective Punitive Damage Awards

Jill Wieber Lens has posted to SSRN Defective Punitive Damage Awards.  The abstract provides:

Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights.

This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of the probable injury was not specific to the injured victim but instead general to all potential victims.

Absent special circumstances, the manufacturer disrespected each of the injured victims in the same way. Consistent with private redress theories, each injured plaintiff can seek punishment for that disrespect. But the disrespect is not unique and each injured plaintiff should receive an identical punitive damage award.

March 24, 2017 in Scholarship | Permalink | Comments (0)

Monday, March 20, 2017

AALS Torts Section Mentoring Program

The AALS Torts & Compensation Systems Section announces its new mentoring program.  The Torts Section may be able to help if you are a professor who:

  • is starting a career in torts or shifting to torts from another subject area, and
  • lacks a torts colleague to discuss scholarship and teaching.

The Executive Committee and the Section at large have numerous professors happy to work with you.  The goal is to match mentors and mentees based on specific areas of interest.  To start the process, please contact the Chair of the Torts Section, currently Chris Robinette ( or 717-541-3993).

March 20, 2017 in Scholarship, Teaching Torts, TortsProfs | Permalink | Comments (1)

Friday, March 17, 2017

JOTWELL Torts: Zipursky on Goold on Copyright Infringement as Tort

At JOTWELL, Ben Zipursky reviews Patrick Goold's Unbundling the "Tort" of Copyright Infringement.

March 17, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, March 15, 2017

Engstrom on LARA

Nora Engstrom has a short piece on the bill to mandate sanctions for "frivolous" lawsuits in which she looks at an earlier attempt to do the same thing.

March 15, 2017 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Monday, March 13, 2017

Tejani on Deterrence

Riaz Tejani (Illinois-Springfield Department of Legal Studies) has posted to SSRN Efficiency Unbound:  Processual Deterrence for a New Legal Realism.  The abstract provides:

Optimal deterrence theory seeks to promote resource maximization by identifying the most economically useful occasions and magnitudes for legal liability. But liability is only the final outcome of a burdensome process made more onerous for many today by widening inequalities in wealth and access to justice. Omission of this may reflect a preoccupation among tort theorists with large corporate actors and a drift further from the dilemmas of individual and social justice. Select lessons from American Legal Realism prompt us to go beyond liability to think about the deterrent function of legal process itself. These lessons challenge us to consider the interpretive dimension of human behavior in its response to not only norm enforcement but also threats thereof. Taking up that challenge, this Article suggests that considerations of optimal deterrence should account for the behavioral impact of what it terms the “specter of process,” in other words the fear of litigation itself, and that doing so requires a stronger bridge between economic and interpretive empirical studies of law. The revised theory may be said to include processual deterrence, the degree to which the behavior of legal subjects is shaped ex ante by fears of being implicated in the burdens of litigation.

March 13, 2017 in Scholarship | Permalink | Comments (0)

Friday, February 24, 2017

Levmore & Fagan on the Confidentiality Settlements

Saul Levmore & Frank Fagan have posted to SSRN Semi-Confidential Settlements in Civil, Criminal, and Sexual Assault Cases.  The abstract provides:

Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and at much lower cost to the legal system. The argument does not transfer well to most criminal cases, where the defendant might pay not to avoid other claims but to avoid incarceration, which offers no direct benefit to the settling victim. It is further complicated in sexual assault cases, where the plaintiff might settle too quickly in order to protect her privacy. The discussion works toward the idea that in some settings semi-confidentiality – the disclosure of the substance of settlement but not the magnitude of monetary payments – is superior to both secrecy and transparency. The right amount of confidentiality is a function of the parties’ interest in privacy, the likelihood that the wrongdoing is part of a pattern unknown to the settling plaintiff, and the accuracy of the litigation process that settlement seeks to bypass. We are able to identify cases where law ought to allow (even) criminal cases to be settled privately and confidentially, and also cases where even sexual assault victims should be steered away from confidential settlement and toward translucency.

February 24, 2017 in Scholarship | Permalink | Comments (0)

Tuesday, February 14, 2017

JOTWELL Torts: Sebok on Abraham & White on the Emergence of Tort Law

At JOTWELL, Tony Sebok reviews Ken Abraham & Ted White's The Transformation of the Civil Trial and the Emergence of American Tort Law

February 14, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 13, 2017

Does Evidence of Common Insurance of the Defendant and Defense Expert Demonstrate Expert Bias in Med Mal Cases?

Marc Ginsberg has posted to SSRN Does Evidence of Common Insurance Demonstrate Relevant Expert Witness Bias in Medical Negligence Litigation?.  The abstract provides:

Does "common insurance" shared by the defendant-physician and the medical expert-witness establish an expert bias? In the past ten to fifteen years, the common insurance question has received attention by the state courts. It has been well understood that "evidence" of the presence or absence of liability insurance is simply inadmissible to prove fault pursuant to the Federal Rule of Evidence 411. Rule 411, however, is not a complete bar to admissibility and allows the trial court to admit evidence of liability insurance to prove a witness's bias or prejudice. This paper explores the various "models" of common insurance evidence, the theory of common insurance "bias" and the professional risk potentially assumed by expert witnesses who give false testimony.

February 13, 2017 in Scholarship | Permalink | Comments (0)

Tuesday, February 7, 2017

Wells on Harmonizing European Tort Law

Mike Wells has posted to SSRN Harmonizing European Tort Law and the Comparative Method:  Basic Questions of Tort Law from a Comparative Perspective.  The abstract provides:

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s ultimate aim of harmonization, and on the contribution of these essays to that project. Harmonization of tort law across the member states is not just a matter of working out answers to such questions as the content of the liability rule or whether non-pecuniary harm should be recoverable. Harmonization raises an issue of European Union federalism. That question is not explicitly addressed in either volume, yet the value of the project, and prospects for its success, turn on the answer to it. I argue that Professor Koziol has not made a convincing case for EU displacement of member state tort law.

February 7, 2017 in Books, Scholarship | Permalink | Comments (0)

Monday, January 30, 2017

Journal of Tort Law Invites Submissions

The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States.  It offers several advantages to those submitting scholarship.  First, your work will be reviewed by peers.  This is particularly important for more technical pieces.  Second, there is no submission cycle.  Articles can be submitted at any time.  Third, the Journal routinely publishes high-quality articles.  The two issues to be published in 2017 are great examples.  Volume 10, Issue 1 will publish articles from the Torts and Compensation Systems Section's panel at the AALS Annual Meeting.  Covering "Gun Regulation and Private Law," authors include Leslie Kendrick (UVa), Adam Scales (Rutgers), and Steve Sugarman (Berkeley).  The issue will also contain an article by Greg Keating (USC).  Volume 10, Issue 2 will feature a symposium on the Restatement of the Law Third:  Intentional Torts to Persons.  Reporters Ken Simons (UC Irvine) and Jonathan Cardi (Wake Forest) will respond to commentary from Anita Bernstein (Brooklyn), Ellie Bublick (Arizona), Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Mike Green & Bill Powers (Wake Forest/Texas), Nancy Moore (Boston University), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Steve Sugarman (Berkeley), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham). 

Submission information is available here.  The Journal has adopted a policy that authors will have either a decision or an update within 45 days of submission.  

January 30, 2017 in Scholarship | Permalink | Comments (0)

Sunday, January 29, 2017

Sterrett on Comparing US and EU Products Liability

Lauren Sterrett has posted to SSRN Products Liability:  Advancements in European Union Product Liability Law and a Comparison between the EU and U.S. Regime.  The abstract provides:

In recent years, the product safety regime in the European Union (“EU”) has been amended to provide increased stability for producers and more protection for consumers. The framework seeks to balance the interest of consumers in having access to safe products with the interest of producers in avoiding costly litigation due to differing national standards. There are currently three prominent EU directives designed to protect the health and safety of consumers. These three directives are the Product Liability Directive (the “Directive”), the European General Product Safety Directive (the “GPSD”), and the Product Warranty Directive.1 This paper will focus on the impact of the Directive and the GPSD in the EU and will compare these two directives with product liability law in the United States (“U.S.”). This paper will also explore the newly proposed Product Safety and Market Surveillance Package (the “Package”), expected to replace the GPSD as soon as 2015, and the impact that the Package will have on product liability law in the EU.

The combination of the Directive and the GPSD provide a comprehensive scheme for product liability law in the EU. When compared with U.S. product liability law, these two directives achieve greater harmonization across member states than the current U.S. product liability regime. Although both the EU and the U.S. have similar product liability laws, the current EU regime often affords consumers greater access to redress and maintains strict requirements in regards to product labeling. The proposed Package will introduce even more harmonization into the EU, making it harder on economic operators who sell or produce defective products to escape liability. However, the EU product liability regime is not without problems and there are multiple areas in which the U.S. product liability framework offers better alternatives and provides less confusion for manufacturers and consumers.

January 29, 2017 in Products Liability, Scholarship | Permalink | Comments (0)

Wednesday, January 25, 2017

Hershovitz Reviews Ripstein's "Private Wrongs"

Scott Hershovitz has posted to SSRN The Search for a Grand Unified Theory of Tort Law.  The abstract provides:

In Arthur Ripstein's new book "Private Wrongs," he argues that one simple idea accounts for all of tort's rights and remedies: no one is in charge of anyone else. In this review, I argue that Ripstein is wrong about that. I outline his account of tort, and then set out (some of) the details of the doctrine for which he has failed to account. I also argue that the ambition of Ripstein's book is misguided: we ought not expect simple explanations for complicated and contingent institutions, like tort. Nevertheless, I find lots to admire in Ripstein's book, and I recommend it to everyone who is interested in private law.

January 25, 2017 in Books, Scholarship | Permalink | Comments (0)

Thursday, January 12, 2017

JOTWELL Torts: Hershovitz on Cornell on the Connection Between Rights and Wrongs

At JOTWELL, Scott Hershovitz reviews Nicolas Cornell's Wrongs, Rights, and Third Parties.

January 12, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, January 9, 2017

Goldberg & Zipursky on Hohfeld

John Goldberg & Ben Zipursky have posted to SSRN Hohfeldian Analysis and the Separation of Rights and Powers.  The abstract provides:

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III.

Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.

(Via Solum/LTB, where it is the Download of the Week)

January 9, 2017 in Scholarship | Permalink | Comments (0)