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.
Friday, August 30, 2013
The ABA Journal reports that the Appellate Division of New Jersey Superior Court has held that a remote texter can be liable for injuries caused when the text-recipient has a car accident, but only if the texter knew that the recipient was driving and reading texts while driving.
A copy of the decision is available here.
Thanks to Lisa Smith-Butler for the alert.
Wednesday, August 14, 2013
Paul Figley (American) has published "Using Problems to Teach Quantitative Damages in a First Year Torts Class" in the Journal of Legal Education. The article discusses methods to teach 1Ls how to actually calculate damages in a torts case, such a future income. Figley suggests a "Festival of Damages" class day, where "the students serve as advocates, judges, and reporters to discuss and argue specific damages issues." The article provides instructions for how to incorporate this idea into your own class.
Tuesday, June 11, 2013
The Faculty Lounge reports that Phoebe Haddon will be stepping down as Dean at Maryland at the end of the 2013-2014 academic year. According to the press release, Haddon will return to faculty research and teaching in Fall 2014. Haddon's teaching and research include torts and constitutional law.