TortsProf Blog

Two in the UCLA Law Review

The UCLA Law Review has two torts-related articles that may be of interest to our readers.  First, Professor Noah Sachs (Richmond) has published Beyond the Liability Wall:  Strengthening Tort Remedies in International Environmental Law, 55 UCLA L. Rev. 837 (2008).  Second, Professor Joanna M. Shepherd (Emory) has published Tort Reforms' Winners and Losers:  The Competing Effects of Care and Activity Levels, 55 UCLA L. Rev. 905 (2008). 

(Via Concurring Opinions)

--CJR

Why Torts Die

Kyle Graham recently posted his forthcoming article, "Why Torts Die" on SSRN.   The abstract provides:

Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort's opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven't simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.

I read an earlier draft, and it is a very interesting read.   Both Ted Frank and Walter Olson at Point of Law comment on the article.

- SBS

Sebok on 1993 WTC Bombing

In his latest FindLaw Writ Column, Tony Sebok addresses the recent decision by the New York Appellate Division affirming the jury's verdict against the Port Authority of New York & New Jersey for the 1993 World Trade Center attack.  As Sebok notes, the jury found that the "Port Authority was 68% at fault and the terrorists 32% at fault for the attack."

On appeal, the Port Authority argued that the jury's verdict was "manifestly unreasonable."   The Appellate Division, however, disagreed.  Sebok points to two competing torts rationales - compensation versus fairness - as an underlying explanation:

From a full-compensation point of view, one might argue that the jury's verdict was reasonable enough, for we should err on the side of giving full compensation for the innocent victims at the WTC in 1993, not on the side of protecting the Port Authority's interest in paying for exactly the harm it caused and not a dollar more. Thus, even if it stretched credulity to deem the Port Authority more at fault than the terrorists, at least it served the interest of full compensation.

The Port Authority, however, contends that the harm to fairness here is too great to be borne. It points out that, even if the court invalidated the jury's finding that it was more than 50% liable (and hence more at fault than the terrorists), it would still have to pay plaintiffs' full economic damages. Only the non-economic (pain and suffering damages) would be apportioned according to fault.

- SBS

Scheuerman on Punitive Damages and Class Actions

TortsProf's own Sheila Scheuerman has posted Two Worlds Collide:  How the Supreme Court's Recent Punitive Damages Decisions Affect Class Actions on SSRN.  Here's the abstract:

This article examines the intersection between two controversial areas of the law - punitive damages and class actions - and argues that the Supreme Court's recent jurisprudence clarifying the due process limits on punitive damages has broad implications on the procedural laws governing the types of cases that can properly be certified as a class action. Specifically, the article discusses the Supreme Court's evolving approach to punitive damages from one that considered the harm a defendant's conduct caused to society as a whole to one that now focuses almost exclusively on the harm to the specific individual bringing the lawsuit. This shift, which recently culminated in the Court's 2007 decision in Philip Morris USA v. Williams, constitutionally requires that the amount of a punitive damages award relate to the amount of harm suffered by the party bringing the suit. That requirement is at odds with class action practices that treat punitive damages as a common, class-wide issue and that have allowed juries to assess a punitive damages award before evaluating the harm to the individual class members. The article argues, therefore, that where injuries are not uniform among class members, punitive damages cannot be pursued as a class-wide remedy.

I read an earlier draft, and it's thorough and thoughtful.

--CJR

Sebok on Nagareda's Mass Torts in a World of Settlement

Professor Anthony Sebok's book review, What Do We Talk About When We Talk About Mass Torts?, 106 Mich. L. Rev. 1213 (2008), is available here.  Sebok reviews Professor Richard Nagareda's Mass Torts in a World of Settlement (2007), available here.

Via Stier/Mass Tort Litigation Blog.

--CJR

Top 10 Torts Downloads on SSRN

Listed below are the top 10 downloads for papers posted on SSRN from March 1, 2008 to April 30, 2008 in the Journal of Torts & Products Liability Law:

1	161	The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: March 9, 2008 Last Revised: March 9, 2008
2	109	Fault in Contract Law Eric A. Posner, University of Chicago - Law School, Date posted to database: March 17, 2008 Last Revised: March 17, 2008
3	96	Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights Eric Claeys, George Mason University School of Law, Date posted to database: April 9, 2008 Last Revised: April 22, 2008
4	75	The Original Sense of the (Equal) Protection Clause: Pre-Enactment History Christopher R. Green, University of Mississippi - School of Law, Date posted to database: March 4, 2008 Last Revised: April 18, 2008
5	75	The Wreckage of Recklessness Geoffrey Christopher Rapp, University of Toledo - College of Law, Date posted to database: March 13, 2008 Last Revised: March 21, 2008
6	73	Tort Negligence, Cost-Benefit Analysis and Tradeoffs: A Closer Look at the Controversy Kenneth W. Simons, Boston University - School of Law, Date posted to database: April 11, 2008 Last Revised: April 16, 2008
7	68	The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application Christopher R. Green, University of Mississippi - School of Law, Date posted to database: March 5, 2008 Last Revised: April 18, 2008
8	66	An Article III Defense of Merits-First Decisionmaking in Civil Rights Litigation: The Continued Viability of Saucier v. Katz Sam Kamin, University of Denver Sturm College of Law, Date posted to database: March 10, 2008 Last Revised: April 25, 2008
9	60	Tort Damages Louis T. Visscher, Erasmus University Rotterdam (EUR) - Erasmus School of Law, Date posted to database: March 19, 2008 Last Revised: March 19, 2008
10	58	Privacy, Ethics, and the Meaning of News Amy Gajda, University of Illinois College of Law, Date posted to database: March 10, 2008 Last Revised: March 26, 2008

- SBS

Levin: Tort Wars

Joel Levin (Case Western Reserve) has published Tort Wars, available here from Cambridge University Press.  Levin's central thesis is that tort law is about achieving peace.  I read the book as a reviewer.  Whether you agree with Levin or not, the book is provocative and worth reading.  Here's the official description:

Tort Wars brings together the diverse and usually insufficiently related strands of tort law and treats the moral, economic, and systemic problems running through those strands with a single analysis and theory. In that tort law employs theory at all, it is typically theory measured against notions of corrective justice or appeals to utility. Both have severe prescriptive restrictions and limited explanatory power and often stray from any useful description of tort cases in the courts. Tort Wars looks at the nature of dispute resolution techniques, criticizes the blasé justice and more esoteric utility theory, and examines the problems of both the legal academy and the veracity vacuum in the courtroom. Further, it explores the conceptual differences between tort and contract, locating contract as a subset of tort. It uses examples drawn from the edges of tort law in an attempt to measure central cases by the marginal ones and to provide a barometer of emerging legal and social change, achieved through imposing an individualized peace.

--CJR

Ten Half-Truths About Tort Law

John Goldberg (Vanderbilt) takes on what he sees as ten items of conventional wisdom about tort law that don't stand up to close scrutiny in this SSRN posting (to be published in Valparaiso Law Review).  The ten:

I.  Tort is a Miscellaneous Category.
II.  Tort Law is 150 Years Old, Give or Take.
III.  Tort Law is Accident Law.
IV.  The Life of Tort Law Has Been Experience, Not Logic.
V.  Tort Theories are Either Unified or Pluralist.
VI.  Tort Damages Aim to Make the Plaintiff Whole.
VII.  Tort Liability Exists on a Spectrum from Strict Liability to Intent.
VIII. Settlement and Insurance Have Rendered Tort Law Obsolete.
IX.  Tort Law is Common Law.
X.  Torts is a Class, Not a Subject.

It's an interesting and entertaining read.  What half-truths would you add?

--BC

Eggen on Toxic Torts at Ground Zero

Jean Eggen (Widener) has posted Toxic Torts at Ground Zero on SSRN.  After analyzing the legal and medical issues involved for the Ground Zero toxic claimants, Eggen concludes:

[W]hile the tort system is the best mechanism for resolution of the Ground Zero toxic exposure claims, it is far from perfect, and...lawmakers must give serious consideration to developing a discrete and workable management plan for toxic claims in the future.

--CJR

Simons on Negligence and Cost-Benefit Analysis

Kenneth Simons (Boston) has posted Tort Negligence, Cost-Benefit Analysis and Tradeoffs:  A Closer Look at the Controversy on SSRN.  Here's the abstract:

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B.

For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent.

Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches.

(Via Solum/Legal Theory Blog)

--CJR

Claeys on Land-Use Torts and Theory

Eric Claeys (George Mason) has posted Jefferson Meets Coase:  Land-Use Torts, Law and Economics, and Natural Property Rights on SSRN.  Here's the abstract:

In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.

The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when "tort" was forming into a single field of legal study. The "Jeffersonian" natural-rights theory predicts the contours of doctrine more determinately and accurately than "Coasian" economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis - its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.

The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort - to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

--CJR

Abraham: The Liability Century

Kenneth Abraham (Virginia) has just published The Liability Century, now available from The Harvard University Press.  HUP describes the book:

Kenneth Abraham explores the development and interdependency of the tort liability regime and the insurance system in the United States during the twentieth century and beyond, including the events of September 11, 2001.

From its beginning late in the nineteenth century, the availability of liability insurance led to the creation of new forms of liability, heavily influenced expansion of the liabilities that already existed, and continually promoted increases in the amount of money that was awarded in tort suits. A “liability-and-insurance spiral” emerged, in which the availability of liability insurance encouraged the imposition of more liability, and, in turn, the imposition of liability encouraged the further spread of insurance.

Liability insurance was not merely a source of funding for ever-greater amounts of tort liability. Liability insurers came to dominate tort litigation. They defended lawsuits against their policyholders, and they decided which cases to settle, fight, or appeal. The very idea behind insurance––that spreading losses among large numbers of policyholders is desirable––came to influence the ideology of tort law. To serve the aim of loss spreading, liability had to expand.

Today the tort liability and insurance systems constantly interact, and to reform one the role of the other must be fully understood.

I look forward to reading this one.

--CJR

Hot Off the Presses! Charleston Law Review Punitive Damages Symposium Volume

The Charleston Law Review has published its 2008 symposium volume, which contains articles and essays from the punitive damages symposium that we held back in September.  Check out the contents:

Sheila B. Scheuerman, Introduction, Punitive Damages, Due Process & Deterrence:  The Debate After Philip Morris v. Williams.  (Provides an overview and summary of each essay and article in the volume).  Download a copy of the Introduction:  Download 4_scheuerman_introduction.pdf

Anthony J. Sebok, After Philip Morris v. Williams:  What is Left of the "Single-Digit" Ratio?  Download a copy of Sebok's Essay [pdf file]:  Download 5_sebok.pdf

Anthony J. Franze, Clinging to Federalism:  How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process.  Download a copy of Franze's Essay [pdf file]:  Download 6_franze.pdf

Neil Vidmar & Matthew W. Wolfe, Fairness Through Guidance:  Jury Instruction on Punitive Damages After Philip Morris v. Williams.  (Available through SSRN). 

Christopher J. Robinette, Peace:  A Public Purpose for Punitive Damages.  (Available through SSRN).

Keith N. Hylton, Due Process and Punitive Damages:  An Economic Approach.  Download a copy of Hylton's Article:  Download 9_hylton.pdf

Victor E. Schwartz & Christopher E. Appel, Putting the Cart Before the Horse:  The Prejudicial Practice of a "Reverse Bifurcation" Approach to Punitive Damages.  Download a copy of Schwartz's Article:  Download 10_schwartz.pdf

Elizabeth J. Cabraser & Robert J. Nelson, Class Action Treatment of Punitive Damages Issues After Philip Morris v. Williams:  We Can Get There From Here.  Download a copy of Cabraser's Article:  Download 11_cabraser.pdf

Byron G. Stier, Now It's Personal:  Punishment and Mass Tort Litigation After Philip Morris v. Williams.  Download a copy of Stier's Article:  Download 12_stier.pdf

Michael L. Rustad, The Uncert-Worthiness of the Court's Unmaking of Punitive Damages.  Download a copy of Rustad's Article:  Download 13_rustad.pdf

My thanks again to the symposium participants for a lively and enjoyable discussion.  And my congratulations to Charleston 3Ls Matt Kendall (Editor in Chief), and Christy Fargnoli (Symposium Editor) as well as the entire Charleston Law Review staff for a very interesting collection of essays and articles!

- SBS

King on the Common Knowledge Exception

Joseph King (Tennessee) has published an interesting article: The Common Knowledge Exception to the Expert Testimony Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L. Rev. 51 (2008).  In the piece, King wrestles with one of tort law's great shortcomings, uncertainty, in the context of the common knowledge exception. 

Pursuant to the exception, a plaintiff does not need to use an expert to establish the standard of care in a med mal case if the subject matter of the allegedly unreasonable conduct is within the common knowledge of people without medical training.  Although King supports the doctrine in theory, he argues that its application has been so unpredictable as to arouse rule-of-law concerns.  The challenge is to provide sufficient guidance to judges, lawyers, and litigants while retaining enough flexibility to cover an array of factual scenarios.

King's solution is to construct two alternative preconditions, the presence of one or the other being necessary, but not sufficient, for a court to invoke the common knowledge exception:

Either the specific conduct that allegedly constituted negligence was of such a nature that not only could an unlicensed layperson legally perform it without violating or offending applicable medical or health care licensure statutes or duly authorized regulations governing the practice of the health care professions, but also that such an unlicensed layperson would ordinarily be deemed competent and foreseeably expected to routinely perform such conduct; or, the specific decision making by the health care provider that allegedly constituted negligent conduct that caused the injury did not involve the exercise of uniquely professional medical skills, a deliberate balancing of medical risks and benefits, or the exercise of therapeutic judgment.

--CJR

Hylton on Nuisance and Environmental Regulation

Keith Hylton has posted on SSRN The Economic Theory of Nuisance Law and Implications for Environmental Regulation.  Here's the abstract:

I explore the economic structure of nuisance law as a mechanism for regulating environmental interferences and propose a modernized enforcement regime. The modern regime would retain public enforcement primarily in identifying environmental harms and as a backstop for private enforcement.

--CJR

Baker at WNEC on "The Medical Malpractice Myth"

My colleague Barbara Noah has helped put together this event:

On April 1st, 2008, Professor Tom Baker, Connecticut Mutual Professor of Law and Director of the Insurance Law Center at the University of Connecticut, will present "Confronting the Medical Malpractice Myth", an overview of his well-received book on the same subject. (See Tom Baker, The Medical Malpractice Myth, University of Chicago Press, 2005 (ISBN: 0-226-03648-0]). The event will be hosted by the student Health Law Association at Western New England College School of Law.

--BC

Sebok on "New Duty" for New Jersey Restaurants to Protect Bar Patrons

In this week's Writ Column on FindLaw, Tony Sebok analyzes an interesting dram shop case in New Jersey:  Bauer v. Nesbitt.  As Sebok explains, Bauer involved several young men who were drinking at the C View Inn in Cape May, NJ.  One young man, James Hamby, was visibly intoxicated.  He left with his friend Frederick Nesbitt, who was not visibly intoxicated and - to the restaurant's knowledge - had been drinking soda all evening.  Nesbitt crashed his car, killing Hamby.  Hamby's estate sued Nesbitt and the C View Inn under New Jersey's Dram Shop Law.  The trial court dismissed the suit against the C View Inn, but in a recent opinion, the appellate court reversed.   

As Sebok notes, the appellate court "held that the risks that the Dram Shop Act was intended to prevent were not just accidents resulting from drunk-driving, but also any accidents that could foreseeably result from intoxication."  Sebok argues that the appellate court "created a new duty in Bauer. It essentially held that since Hamby, the passenger, was visibly drunk, the bar had a duty to protect him against his own bad judgment which led him to accept a ride from Nesbitt, the driver. The problem with this logic, however, is that while Nesbitt was too drunk to drive, and Hamby knew it, the staff at the bar did not."

The full column analyzes the underlying rationales of the decision, the precedents cited by the court, and the potential policy implications.  Give the column a read!

- SBS

Gibson on Doctrinal Feedback and the Standard of Care

James Gibson (Richmond, Visiting at Virginia) has posted on SSRN Doctrinal Feedback and (Un)Reasonable Care.  In this piece, Gibson discusses the relationship between an abstract legal standard (e.g., reasonable care) and the "real world" to which the standard is applied (e.g., medical practice).  Here's a taste from the abstract:

For example, suppose a physician provides more-than-reasonable care - extra tests, unneeded procedures, etc. - so as to steer clear of tort liability's considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and racheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.

--CJR

Green on Corporate Punishment

In light of the recent Crimtorts Symposium at Widener, I find this piece by Christopher Green (Mississippi) quite interesting:  The Food-Chain Issue for Corporate Punishment:  What Criminal Law and Punitive Damages Can Learn from Each Other.  Here's the abstract:

The admiralty case now at the Supreme Court, Exxon v. Baker, presents the Supreme Court with the food-chain question for corporate punishment: how high in the corporate hierarchy must misbehavior go before the corporation itself may be punished? Every American jurisdiction allows corporations to be punished with criminal liability and with some form of punitive damages. In both criminal law and the law of punitive damages, there is persistent division about the food-chain question. However, the fields develop with virtually no contact from one to the other, and the rules states adopt in each field have no correlation with the rules they adopt in the other. I survey approaches in criminal law and punitive damages, arguing that states have good reason to adopt the same rule in both fields, and point to several particular ways in which the development of the law in one field can profit from the insights of the other.

(Via Solum/Legal Theory Blog)

--CJR

Peters on Health Courts

The Boston University Law Review has Philip G. Peters, Jr.'s latest work on health courts (88 B.U. L. Rev. 227 (2008) [pdf]).  In the piece, Peters critiques the most recent legislation proposing separating medical malpractice cases from the traditional civil court system.

--CJR

Top 10 Recent SSRN Torts Downloads

1	308	Choice of Law in the American Courts in 2007: Twenty-First Annual Survey Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: January 2, 2008 Last Revised: January 14, 2008
2	150	Products Liability Preemption: An Institutional Approach Catherine M. Sharkey, New York University School of Law, Date posted to database: January 17, 2008 Last Revised: March 5, 2008
3	102	The Flawed Hedonic Damages Measure of Compensation for Wrongful Death and Personal Injury W. Kip Viscusi, Vanderbilt University Law School, Date posted to database: January 17, 2008 Last Revised: February 12, 2008
4	93	Personal Inviolability and 'Private Law' Gregory C. Keating, University of Southern California Law School, Date posted to database: January 7, 2008 Last Revised: January 20, 2008
5	93	Neither Saints Nor Devils: A Behavioral Analysis of Attorneys' Contingent Fees Eyal Zamir, Ilana Ritov, Hebrew University of Jerusalem - Faculty of Law, Hebrew University of Jerusalem - School of Education, Date posted to database: January 28, 2008 Last Revised: January 28, 2008
6	88	Anonymous Blogging and Defamation: Balancing Interests of the Internet Betsy Malloy, University of Cincinnati - College of Law, Date posted to database: February 18, 2008 Last Revised: February 20, 2008
7	46	FDA Preemption of State Tort Law in Drug Regulation: Finding the Sweet Spot Peter H. Schuck, Yale University - Law School, Date posted to database: January 17, 2008 Last Revised: January 17, 2008
8	43	Expanding Restitution: Liability for Unrequested Benefits Ariel Porat, Tel Aviv University - Buchmann Faculty of Law, Date posted to database: January 31, 2008 Last Revised: January 31, 2008
9	40	Tomorrow's Tort Law in Europe; Selected Questions (Le Droit De La Responsabilité Civile De Demain En Europe. Questions Choisies) Willem H. van Boom, Andrea Pinna, Erasmus University Rotterdam (EUR) - Erasmus School of Law, Institut du Droit des Affaires Internationales, Date posted to database: January 4, 2008 Last Revised: January 27, 2008
10	40	Privacy 3.0 - The Principle of Proportionality Andrew B. Serwin, Author - Affiliation Unknown, Date posted to database: February 6, 2008 Last Revised: February 17, 2008

--CJR

Nussim on Distributive Effects of Negligence and Strict Liability

Jacob Nussim (Bar-Ilan University-Faculty of Law) has posted Distributive Aspects of Legal Standards on SSRN.  Here is the abstract:

There are various differences between a negligence regime and a strict liability regime; there are various differences between price and quantity controls of behavior. This study shows that, typically, these legal mechanisms differ in their distributive outcome as well. In reality, tort victims as well as externality victims are heterogeneous in the potential harm they would suffer if injured, but potential injurers cannot observe individualized harm ex ante (e.g., car accidents, pollution). Therefore, a uniform rather than individualized legal standard of behavior is applied. It is shown that a negligence regime with a uniform care standard redistributes among potential victims, while an equally (second best) efficient strict liability regime does not. A similar conclusion follows for the choice between quantity and price instruments.

Via Solum/Legal Theory Blog.

--CJR

Sebok on Riegel & Preemption

In his latest Findlaw column, Tony Sebok discusses the Riegel decision and how it may reveal the Court's approach to the remaining preemption cases on the Court's docket.  In particular, Sebok finds clues in Justice Stevens's concurrence, and concludes that "Stevens seems to be telling Scalia that the theory of preemption that Stevens had developed extends only to cases of express preemption--that is, in cases where Congress has clearly stated that it wants to supplant state law, including state common law."

- SBS

Sebok Chastizes Oregon Supreme Court in Philip Morris Remand

In his latest FindLaw column, Tony Sebok addresses the Oregon Supreme Court's decision to again affirm a $79.5 million punitive damages award against Philip Morris following remand by the U.S. Supreme Court.   

As Sebok points out, "[t]he Oregon Supreme Court held that reinstatement of the award was appropriate because there were independent and adequate state law grounds for doing so."  But, as Sebok notes, "[t]hose grounds had never been previously identified by the Oregon Supreme Court in its two earlier decisions (the ones that had been reversed by the U.S. Supreme Court.)"   Sebok argues that the Oregon Supreme Court put "form over substance" in a results-oriented fashion in order to avoid "giving a victory to a hated tobacco-company defendant."    While Sebok finds it unlikely that the U.S. Supreme Court will grant cert in this case for the third time, he expresses his hope that the USSC will GVR the case because "[t]hat would be a fitting response to a state court that seems to think that winning is the only thing that matters."

- SBS

Solomon on "Judging Plaintiffs"

Jason Solomon (Georgia) has posted a piece on tort theory, Judging Plaintiffs, on SSRN.  Here's the abstract:

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral theorists: Why do we judge plaintiffs - their conduct, state of mind and other factors - to determine liability in tort law? This Article attempts to answer that question, and in doing so, shed light on contemporary theoretical, doctrinal, and practical debates about tort law.

To do so, I first recast a variety of disparate doctrines in tort law as instances of a singular phenomenon "judging-plaintiffs law" and argue that existing explanations of this phenomenon fall short. Next, I suggest that judging-plaintiffs law can be explained and unified through a principle of self-help. Then, I argue that a new moral theory of tort law, civil recourse theory, is uniquely well positioned to explain why plaintiff's capacity for self-help ought to lead to a judgment of no liability.

Finally, I suggest that my interpretation of judging-plaintiffs law lends support to a more robust "right of action" concept in civil recourse theory, and I describe the doctrinal and practical payoff of such an analytic move. I aim to help move the debate over tort theory and doctrine forward by placing civil recourse theory at the center of the discussion.

--CJR

Calnan on Products Liability

Alan Calnan (Southwestern) has posted A Consumer-Use Approach to Products Liability on SSRN.  Calnan proposes clarifying what has become an overly uncertain area of law:

Under this approach, courts would categorize products liability cases according to the type of use the plaintiff-consumer made of the product at the time he was injured. The categorization would have both substantive and procedural effects. Criminal or intentionally destructive uses would bar recovery altogether. Reckless or idiosyncratic uses would create a presumption of no-liability. Common ancillary uses would require expert evidence of defectiveness. Intended uses would create a presumption of liability, and intended uses of products violating statutes or regulations would result in absolute liability. By adapting liability schemes to consumer behavior, this five-tiered approach promises not just to clarify the law, but to better serve the Restatement Third`s objectives of efficiency and fairness.

--CJR

Free Torts Lecture at Valparaiso

Daniel Farber (Berkeley) will discuss, “Tort Law in the Era of Climate Change: Katrina and 9/11” at the  annual Monsanto Lecture at Valparaiso Law on Thursday, February 14th. 

Farber will discuss how society now faces uncertain risks from terrorist attacks, natural disasters and other events that threaten massive harm to the public at large. While some assume that these risks are too extraordinary for the nation’s tort system to handle and present a threat of unconfined liability, Farber will argue that although the tort system is limited, is can prompt precautionary measures and government action to maintain societal risk-spreading.

More information (time and place) available from Valparaiso.

- SBS

Gryphon Discusses Contingent Fees

Over at Point of Law, Marie Gryphon has an interesting discussion about contingent fees.  Based on the research of behavioral economists Eyal Zamir and Ilana Ritov, Gryphon addresses the following questions:

Why do plaintiffs with assets opt for contingent fees over hourly rates? Why are contingent fees so uniform? And if contingent fees are so attractive to plaintiffs, why haven't defendants demanded similar arrangements?

--CJR

Top 10 Recent Torts Downloads on SSRN

Here are the top torts downloads on SSRN for the last 60 days:

1	237	Choice of Law in the American Courts in 2007: Twenty-First Annual Survey Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: January 2, 2008 Last Revised: January 14, 2008
2	187	Rome II and Tort Conflicts: A Missed Opportunity Symeon C. Symeonides, Willamette University - College of Law, Date posted to database: November 22, 2007 Last Revised: November 22, 2007
3	180	Moral Cognition and Computational Theory John Mikhail, Georgetown University - Law Center, Date posted to database: November 13, 2007 Last Revised: December 3, 2007
4	123	Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada Michael S. Lynk, University of Western Ontario, Date posted to database: December 12, 2007 Last Revised: December 12, 2007
5	97	Did the Right Make America a Lawsuit Nation?: Thomas Geoghegan's See You in Court Theodore H. Frank, American Enterprise Institute for Public Policy Research, Date posted to database: November 28, 2007 Last Revised: January 16, 2008
6	72	Personal Inviolability and 'Private Law' Gregory C. Keating, University of Southern California Law School, Date posted to database: January 7, 2008 Last Revised: January 20, 2008
7	70	Towards a European Tort Law? Damages Actions for Breach of the EC Antitrust Rules: Harmonising Tort Law Through the Back Door? Francisco Marcos, Albert Sánchez Graells, Tribunal de Defensa de la Competencia de la Comunidad de Madrid, Instituto de Empresa Business School - Observatory on Competition Policy, Date posted to database: November 12, 2007 Last Revised: December 5, 2007
8	67	Creating Masculine Identities: Harassment and Bullying 'Because of Sex' Ann McGinley, University of Nevada, Las Vegas - William S. Boyd School of Law, Date posted to database: December 3, 2007 Last Revised: December 4, 2007
9	40	The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law Marin Roger Scordato, Catholic University of America - Columbus School of Law, Date posted to database: December 10, 2007 Last Revised: December 12, 2007
10	38	Instructing Juries on Punitive Damages: Due Process Revisited after Philip Morris v. Williams Sheila B. Scheuerman, Anthony J. Franze, Charleston School of Law, Arnold & Porter, Date posted to database: December 14, 2007 Last Revised: December 14, 2007

--CJR

Hylton on Asbestos Litigation

Yesterday Keith Hylton posted Asbestos and Mass Torts with Fraudulent Victims on SSRN.  Here is the abstract:

Deterrence and compensation goals should be distinguished, and compensation priorities should change in response to the deterrence goal. This has immediate implications for the problem of handling marginal and fraudulent claims in asbestos litigation. Where the deterrence goals come to the forefront, for example in instances of reckless exposure, it may be desirable for courts to require defendants to pay damages that are not transferred to any claimants. Where the deterrence goals are less compelling, as in instances of ordinary negligence, the importance of weeding out marginal and fraudulent claims becomes paramount. I consider optimal penalties for attorneys who bundle fraudulent claims.

This paper was presented at Southwestern last month as part of a major symposium on "Perspectives on Asbestos Litigation."

--CJR

Geistfeld's Guide to Torts

Aspen Publishers has launched its "Essentials" series, and Mark Geistfeld is writing the Torts installment.  Aspen describes the series as follows:

The Essentials series offers a prominent author's personal view of the subject matter. Each book will help students understand the salient characteristics of the subject and how the subject relates to other law school courses. Some authors will choose to focus on unifying themes or policy issues; others will choose to focus on doctrines or illustrative case studies. But the purpose of each volume is the same — to illumine the subject matter for the student.

Geistfeld's volume on Torts will be available next year.

--CJR

O'Connell on Binding Early Offers vs. Med Mal Caps

Jeffrey O'Connell (Virginia) has posted "Commentary Binding Early Offers versus Caps for Medical Malpractice Claims?" on SSRN.  The abstract provides:

Like damages caps, early offer reform promises reduction in the costs of medical liability cases. In contrast to damages caps, early offer reform offers advantages to both claimant and defendant. Under early offer, the defendant would have the option to offer an injured patient periodic payments for the patient's net economic losses as they accrue, but not payments for noneconomic losses (pain and suffering). If an early offer were made and accepted, that would settle the claim. This commentary explains how an early offer reform might work and summarizes data from a recent closed claim study of medical malpractice cases in Texas and Florida. The data show widespread opportunities for successful early offers and provide evidence that substantial per case savings would result.

- SBS

Nagareda on Mass Tort Litigation

In a new featured column at PointofLaw, Richard Nagareda (Vanderbilt) argues that resolution of mass torts requires a reconception of the attorney-client relationship and the role of the civil tort system:

What is needed for mass torts is a corresponding legal response that would turn this leveraging into its own source of constraint—that would bestow the coercive authority needed to make peace, but only coupled with measures to link the interests of the peacemakers to the long-term viability of the arrangements they create. Such measures might include the overriding of existing lawyer-client retention agreements so as to link the fees to be obtained from clients by plaintiffs' lawyers to the peace terms that they fashion for non-clients who are otherwise similarly situated.

- SBS

Sebok on Telecom Immunity

In his latest Findlaw column, Tony Sebok analyzes the constitutionality of providing civil immunity to telephone companies that allegedly violated customers' privacy rights by providing information about phone and Internet communications to the federal government.  Sebok points out that the suits filed against AT&T and other companies sound in tort law:  the original Foreign Intelligence Surveillance Act includes a civil suit provision, and "[t]he causes of action that were triggered by the violation of FISA concerned privacy, a tort interest recognized by almost every state's common law, and possibly protected by an implied right of action under the First and Fourteenth Amendments as well."  Sebok argues that before Congress can eliminate a plaintiff's statutory tort claim, it must provide compensation under the Fifth Amendment's Takings Clause, and that different treatment based on the statutory nature of these claims is unjustified. 

- SBS

Viscusi on Hedonic Damages

Last week, Kip Viscusi posted on SSRN The Flawed Hedonic Damages Measure for Wrongful Death and Personal Injury Compensation.  Here is the abstract:

The payment of hedonic damages based on the value of statistical life will lead to excessive insurance and excessive deterrence in personal injury cases. The value of statistical life can play a constructive role in assessing negligence and liability. The recent proposal that wrongful death victims be awarded hedonic damages in addition to both economic damages and noneconomic damages to compensate for the harm to survivors will produce rampant double counting and will transform wrongful death awards in a very inefficient and undesirable manner. Recent attempts to set compensation levels by chaining the value of statistical life with measures of happiness and disability reflect a fundamental misunderstanding of the value of statistical life literature.

--CJR

Vladeck on Preemption

David C. Vladeck has written an issue paper entitled, "The Emerging Threat of Regulatory Preemption," distributed by the American Constitution Society.  The abstract provides:

In The Emerging Threat of Regulatory Preemption, Georgetown University Law Center Professor David C. Vladeck examines how, in his view, regulatory agencies have attempted to insulate regulated industries from state tort law claims by slipping preemption language into regulatory preambles. Professor Vladeck traces this “preemption by preamble” campaign in several key agencies, such as the Food and Drug Administration, and highlights the serious procedural and substantive issues involved. Procedurally, making preemption determinations in a regulation’s preamble (the introductory language that often precedes the actual regulation) is setting policy in a way that is “neither transparent nor democratic,” insulating it from the political process and formal notice-and-comment procedures. Substantively, permitting such preemption raises separation of powers concerns, as it could be viewed as an “effort by the Executive Branch to arrogate power that properly belongs to Congress.” Professor Vladeck argues that decisions “on whether to displace state law to achieve federal objectives are quintessentially legislative judgments that Article I, Section I of the Constitution entrusts to Congress.” Historically, state tort and damages law have served important and complementary roles to federal regulation, and tampering with that balance should not be undertaken lightly. Professor Vladeck concludes by cautioning that “[w]hile the public watches the Supreme Court wrestle with the preemption questions presented in Riegel v. Medtronic, and perhaps in Wyeth v. Levine, the more troubling action is taking place out of public view,” a quiet erosion of tort law remedies and the health and safety benefits they entail. 

- SBS 

Torts and Race

I believe I linked to this before, but it's worth another mention on MLK day -- Jennifer Wriggins (Maine) has an SSRN posting entitled "Whiteness, Equal Treatment, and the Valuation of Injury in Torts, 1900-1949."  The abstract:

The essay explores the relationships between U.S. tort law, race, and legal culture in the first half of the twentieth century. The essay begins by highlighting two ways in which tort law and legal culture were glaringly white. First, whiteness was the default in the sense that litigants and witnesses were presumed to be white unless otherwise identified, and second, African-American people were excluded from decision-making roles in the tort system. Despite the whiteness of the civil justice system, black plaintiffs brought and won tort cases in all regions during this period. The tort system's institutional commitment to private enforcement and individualized resolution of claims resulted in significant access to the civil justice system for black plaintiffs. However, that same commitment to individualized resolution of tort claims allowed bias and inequality to devalue black plaintiffs' claims at every stage of tort litigation, in ways that were impossible to challenge. Despite the racist exclusions of the legal system and wider culture during this period, a theoretical commitment to equal treatment of tort victims persisted as an undercurrent in legal culture. Judges and others used a variety of attempted justifications, different in content but similar in structure, to rationalize their unequal treatment of black tort plaintiffs.

--BC