Tuesday, March 31, 2015
I have posted to SSRN The Prosser Letters: 1919-1948. The abstract provides:
William Prosser was one of the most accomplished and influential scholars of the twentieth century. He molded the development of tort doctrine, especially in the areas of products liability, privacy, and the intentional infliction of emotional distress. In spite of his numerous achievements, there is no full-length biography of Prosser. A major reason no one has written such a volume is the lack of Prosser’s papers. Based on information from a Berkeley Law librarian, it appears Prosser destroyed most of his papers in 1963. Recently, however, prominent academics have both written shorter biographical pieces on Prosser and called for further research on his life.
Progress is possible thanks to the serendipitous discovery of a pile of Prosser’s old letters at a garage sale in the Berkeley area. The letters begin when the twenty-one-year-old Prosser is in Europe after fighting in World War I and continue through Prosser’s role as a visiting professor at Harvard Law School in 1948. They provide a first-hand account from Prosser during crucial periods of his life.
This essay is based on a review of those letters. It accomplishes three main things. First, it fills in considerable details of Prosser’s life, including the resolution of several contested issues, such as where Prosser spent his childhood and when he matriculated as a 1L at Harvard Law School. Second, the essay provides a first-hand account of Prosser’s pedagogical experience in law school and how that affected his teaching, his struggle with the decision to become an academic, and his candid appraisal of the academy. Third, the essay reveals Prosser’s assessment of his own honesty, which is especially provocative in light of the controversy surrounding his methods for influencing the law.
Wednesday, March 25, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter
As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at firstname.lastname@example.org. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award
This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to email@example.com are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach. In the meantime, feel free to contact me if you have any questions.
Friday, March 20, 2015
Nora Engstrom (Stanford) has posted her contribution to the O'Connell tribute to SSRN. Entitled Exit, Adversarialism, and the Stubborn Persistence of Tort the abstract provides:
Serious tort reformers have long tried to divert certain claims from the tort system into no-fault or “replacement” regimes where, it is said, compensation can be more easily, expeditiously, predictably, and simply delivered. Yet while many continue to champion no-fault’s expansion, surprisingly few have stopped to ask how America’s various no-fault experiments, in place for over a century, have thus far fared. Taking up that challenge, this Essay, written in memory of no-fault pioneer Jeffrey O’Connell, canvasses America’s four boldest experiments with no-fault legislation. The investigation — of workers’ compensation, automobile no-fault, the Vaccine Injury Compensation Program, and birth injury funds in Florida and Virginia — reveals that all four of our most ambitious no-fault experiments have, in significant respects, failed. Seepage from no-fault regimes and into the tort system has been a persistent problem. Further, even when compensation has been provided within existing no-fault mechanisms, the mechanisms have become bogged down by adversarialism, marked by longer times to decision and increased combativeness, attorney involvement, and reliance on formal adjudicatory procedures. Showing how and why no-fault has repeatedly fallen short, this Essay seeks to complicate conventional wisdom concerning no-fault’s ostensible advantages. And, it seeks to honor O’Connell’s proud legacy, for only by identifying what’s gone wrong, might we start anew on a path toward the creation of better and more resilient reforms.
All of the papers in the JTL tribute are now available here.
Thursday, March 5, 2015
Bob Rabin (Stanford) has posted to SSRN his contribution to the JTL's O'Connell tribute. Entitled Jeffrey O'Connell and the Compensation Principle in Accident Law: Institutional and Intellectual Perspectives, the abstract provides:
In this essay, I locate the principles that animated the career of Jeffrey O’Connell in a larger context of examining the role of compensation in accident law. I provide a short historical excursion to set the stage. Next, I discuss how O’Connell followed his initial venture involving auto no-fault with a more expansive scheme of elective no-fault coverage for products and medical mishaps, which in turn was followed by his early offers proposal. Then, I briefly trace the legacy of O’Connell in the present era of mass tort and disaster relief claims. A final section offers a concluding note.
Monday, March 2, 2015
I have posted to SSRN my contribution to the Journal of Tort Law's Jeffrey O'Connell tribute. Entitled Party Autonomy in Tort Theory and Reform, the abstract provides:
Tort theory has been dominated by a debate between scholars who view tort law as rooted in individualized justice and scholars who argue tort law is an instrument of social policy. This dialogue has distracted scholars from the more important issue of how to properly separate cases worthy of individualized justice treatment from those better suited to routinized resolution. Tort law already contains both types. One potentially fruitful method of separation is to empower the parties themselves to make the decision. They could do so by voluntarily trading liability for the elimination or substantial reduction in non-economic damages. Such an approach honors individualized justice by leaving the parties in control of the case and, if used, would increase both compensation and administrative efficiency, arguably without a reduction in the deterrent effect. Although the purpose of this article is not to design the ideal proposal(s) to embody such an approach, Jeffrey O’Connell has given us several models to begin our deliberations. It is only the latest contribution in his impressive legacy.
Friday, February 27, 2015
The next issue of the Journal of Tort Law is a tribute to Jeffrey O'Connell, who died in January of 2013. From the Introduction:
O’Connell’s overriding goal was to make compensation more readily available to the injured. He saw traditional tort law as dilatory, unfair, inefficient and hence inadequate to address the pressing needs of injury victims. In pursuing reform, he necessarily took a stand in the theoretical debate about the purposes of tort law. In the typical case, he believed, tort should be compensatory; matters of individualized justice or deterrence were secondary. Given the realities of tort litigation as he saw them, O’Connell believed justice and deterrence goals were both harder to accomplish and harder to measure than a compensation objective. On this understanding, tort law is best justified as insurance and yet, for that very reason, was ripe for radical reform, given its deficiencies. At heart, O’Connell was deeply practical and pragmatic. He wanted his ideas to matter for the world and he valued the tangible good of victim compensation over what he took to be more speculative goods.
The papers that follow reference O’Connell’s pragmatism, but also branch out to touch on many different aspects of his work. Robert Rabin finds that mass tort and disaster relief claims are today being handled on terms congruent with O’Connell’s efforts to realign the tort system to focus on compensation. Kenneth Abraham and G. Edward White combine O’Connell’s love of biography with his interest in tort law to study the life and influence of a scholar who was in many ways a forerunner and kindred spirit: William Prosser. Nora Freeman Engstrom, in the spirit of O’Connell’s critiques of tort, turns the tables by subjecting no-fault programs to careful analysis. Anthony Sebok finds one of O’Connell’s early first-party insurance proposals relevant to currently heated debates over litigation finance. Zoë Sinel challenges O’Connell’s claim that tort is properly understood and assessed by its ability to deliver compensation. Finally, Christopher Robinette finds in O’Connell’s scholarship guidance as to how to begin distinguishing those tort suits worthy of individualized justice treatment from those better suited to serve a compensatory objective.
The pieces are available at De Gruyter's "Ahead of Print" section, though I believe Tony's and Nora's articles are not yet included.
Tuesday, December 16, 2014
The Harvard Law School Program on Private Law is seeking applicants for a post-doctoral fellowship. Information is here: Download PostdoctoralFellowshipinPrivateLawCallforApps
Thursday, September 11, 2014
The AALS Torts & Compensation Systems Section has announced that Mike Green (Wake Forest) will receive the 2015 Prosser Award. From the announcement:
Friday, August 8, 2014
Friday, July 11, 2014
TortsProfs' own Chris Robinette is quoted in this Washington Post article about the verdict against the L.A. Dodgers stemming from the 2011 beating of a Giants fan in the stadium parking lot. The victim sued the Dodgers for failure to provide adequate security. On Wednesday, a jury found for the plaintiff, and the Dodgers are liable for nearly $14 million of the verdict.
Tuesday, June 17, 2014
Volume 6 of the Journal of Tort Law will contain a tribute to Jeffrey O'Connell, who died in January of 2013. Contributors are: Kenneth Abraham (Virginia), Nora Engstrom (Stanford), Mark Geistfeld (NYU), Bob Rabin (Stanford), Adam Scales (Rutgers-Camden), Tony Sebok (Cardozo), Zoe Sinel (Western Ontario), Ted White (Virginia), and me. John Goldberg graciously arranged the issue, which will appear in spring 2015.
Tuesday, June 3, 2014
Tuesday, May 20, 2014
The discussion draft of the Restatement Third, Torts: Intentional Torts to Persons, was discussed this morning at the American Law Institute annual meeting.
Monday, March 3, 2014
Jill Wieber Lens (Baylor) has posted Warning: A Post-Sale Duty to Warn Targets Small Manufacturers on SSRN. The abstract provides:
The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.
This Article is the first to identify a massive problem with a factually dependent post-sale duty to warn — that it will most likely result in liability for small manufacturers, but not large manufacturers. This is because the costs of issuing the warning for a small manufacturer will always be smaller than for a large manufacturer. This Article is also the first to argue that a factually dependent post-sale duty to warn is thus inconsistent with the underlying purposes of products liability law and general public policy. Although the factually dependent post-sale duty to warn seemed like a perfect solution to the overburdening problem, it should not be adopted.
Tuesday, February 25, 2014
I am sorry to report the passing of one of the great empirical legal scholars of our day: Professor Ted Eisenberg (Cornell). Professor Eisenberg, age 66, died on Sunday from a heart attack. From the Cornell statement:
Known as the “grandfather of empirical legal studies,” Eisenberg was a passionate teacher, beloved colleague, and prolific scholar during his 33 years at the Law School.
A legendary figure in the areas of bankruptcy, civil rights, and the death penalty, Eisenberg has used innovative statistical methodology to shed light on such diverse subjects as punitive damages, victim impact evidence, capital juries, bias for and against litigants, and chances of success on appeal. He is the founder of the Journal of Empirical Legal Studies and a Fellow of the American Academy of Arts and Sciences. Eisenberg taught courses on bankruptcy and debtor-creditor law, constitutional law, civil rights, contracts, federal income taxation, and empirical studies of the legal system.
Photo atttribution: Cornell Law School
Monday, February 17, 2014
Thursday, December 26, 2013
After 5 successful years of leading the Institute for European Tort Law, Ken Oliphant is stepping down at the end of 2013 to resume his position as Professor of Tort Law at the University of Bristol. Ernst Karner, of the University of Vienna, will act as interim Director. Congratulations and best wishes to both!
Thursday, December 5, 2013
Tuesday, November 5, 2013
The Faculty Lounge reports that upon Dean Solomon's move to the Provost's office, TortsProf John Oberdiek will become acting Dean at Rutgers-Camden next July 1, 2014. Oberdiek teaches and writes in torts and tort theory.
Monday, October 28, 2013
Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.
In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice.