TortsProf Blog

Goldberg & Zipursky Appear on "Digging a Hole"

John Goldberg & Ben Zipursky appear on the latest episode of "Digging a Hole:  The Legal Theory Podcast," hosted by David Schleicher & Samuel Moyn.  They discuss their latest book, Recognizing Wrongs.

Davis Named Sole Finalist for UK Deanship

TortsProf Mary Davis has been named the sole finalist for the deanship at the University of Kentucky.  Coverage here.  Congratulations to Mary!

Witt on Holdren on Industrial Accidents

John Witt has posted to SSRN Radical Histories/Liberal Histories in Work Injury Law.  The abstract provides:

Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.

Approximately 90,000 Sexual Abuse Claims Filed Against Boy Scouts of America

The deadline for filing claims against the Boy Scouts of America (BSA) in bankruptcy was this week, and nearly 90,000 claims were filed.  That number is significantly higher than expected.  Eventually, a compensation fund will be created for the victims.  The very first case I started working on back in 1996 was on behalf of a sexual abuse victim against BSA and local organizations, and even then it was not a new story.  ABC News has details.

Geistfeld on Civil Recourse Theory

Mark Geistfeld has posted to SSRN his book review of John Goldberg & Ben Zipursky's Recognizing Wrongs.  Entitled Tort Law and Civil Recourse, the abstract provides:

In Recognizing Wrongs (Harvard U. Press 2020), Professors John Goldberg and Benjamin Zipursky defend their long-standing thesis that the primary purpose of tort law is to implement the principle of civil recourse, which “can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her” (p. 3). To provide an adequate account of tort law, the principle of civil recourse cannot simply describe the formal structure of tort liability; it must also explain the substantive nature of wrongdoing. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior that mistreated the plaintiff. Goldberg and Zipursky accordingly conclude that “the point of tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them” (p. 266).

The argument turns on mistreatment and the associated prohibition of injury-causing behavior, each of which is defined in problematic terms. Many tort rules function as forms of no-fault or strict liability, even when not expressly denominated as such. According to Goldberg and Zipursky, these rules are defined by an “unforgiving” behavioral standard not to cause injury that can be violated by even “conscientious and diligent actions” (p. 193). In addition to begging the question of why this behavior meaningfully mistreats the plaintiff, Goldberg and Zipursky do not address the implications of such a rule. On their account, the violation of any tort duty is prohibited. Insofar as one ought to avoid acting in a legally prohibited manner, dutyholders who cannot comply with an “unforgiving” behavioral obligation should avoid engaging in the risky activity altogether—an extreme obligation that would prevent most of us from driving automobiles. Something about this argument has gone awry.

As this Review shows, civil recourse readily accommodates an alternative interpretation of tort law that substantially limits the relevance of mistreatment, which in turn limits the importance of civil recourse to the remedial aspects of modern tort law. Although undoubtedly important, the redressive structure of tort liability does not supply the “point of tort law.” Goldberg and Zipursky depict tort law in a manner that is faithful to its historical origins but is now anachronistic. The role of mistreatment within the early common law stemmed from the customary norms that governed behavior in the state of nature. Lacking protection of a centralized government, individuals needed to defend their honor in order to ward off future attacks. Even in cases of accidental harm, suffering injury at the hands of another necessarily involved a form of mistreatment—a loss of honor—that entitled the victim to obtain compensation from the injurer, a form of interpersonal redress for mistreatment that functioned as a rule of strict liability. By enforcing these norms, the early common law was fully animated by the principle of civil recourse.

Over time, social conditions have changed. Physical security no longer depends on one’s honor. To protect individuals from physical harm, modern tort law focuses on the prevention and compensation of injury. Mistreatment matters only insofar as it involves highly culpable wrongdoing—a distinctive threat to physical security redressed by punitive damages. Outside of this extraordinary remedy, mistreatment does not substantively shape the tort rules governing accidental physical harms. Tort liability still satisfies the principle of civil recourse—plaintiffs receive redress from defendants who have violated their tort rights and thereby wronged them—but the primary purpose of modern tort law is defined by its substantive rights and correlative obligations, not by the remedial structure of civil recourse.

Grey & Orwoll on Tort Immunity in the Pandemic

Betsy Grey & Samantha Orwoll have posted to SSRN Tort Immunity in the Pandemic.  The abstract provides:

A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.

Grey on Sex-Based Brain Differences and Emotional Harm

Betsy Grey has posted to SSRN Sex-Based Brain Differences and Emotional Harm.  The abstract provides:

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.

This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.

Gold on the Right of Redress

Andrew Gold has posted to SSRN Introduction to the Right of Redress.  The abstract provides:

This is a draft of the Introduction chapter from my new book, The Right of Redress (Oxford University Press, 2020). As the book argues, the law enables private parties to engage in redress by undoing the wrongs committed against them. Moreover, a distinctive kind of justice governs our legal rights of redress, different from the kind described in leading corrective justice approaches. Through analysis of these key ideas, The Right of Redress helps to make sense of tort law, contract law, fiduciary law, unjust enrichment doctrine, and equity.

Lahav & Burch on Transparency in Mass Torts

Alexandra Lahav & Elizabeth Chamblee Burch have posted to SSRN Information for the Common Good in Mass Torts.  The abstract provides:

In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought to prioritize litigation’s information-production role over competing litigant-autonomy values in lawsuits like the Opiate litigation that have a significant bearing on public health and safety. To aid courts in doing so, we propose a nuanced approach to confidentiality that takes into consideration the interests of different actors and stakeholders with different legal claims, recognizing that doing so will undermine the system’s commitment to trans-substantivity in practice.

JOTWELL Torts: Goldberg on Lahav on Remedies

At JOTWELL, John Goldberg reviews Alexandra Lahav's The Knowledge Remedy.

Zick on the Costs of Dissent

Timothy Zick has posted to SSRN The Costs of Dissent:  Protest and Civil Liabilities.  The abstract provides:

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions affecting protest, including “negligent protest,” “aiding and abetting defamation,” “riot boosting,” “conspiracy to protest,” and “tortious petitioning.” The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add to an already challenging and burdensome protest environment, which includes regulatory and other restrictions on speech and assembly. Owing to their chilling effect on First Amendment rights, courts have a special obligation to review both traditional costs and new civil actions skeptically, to require clarity and precision in terms of liability standards, and to allow civil liability only in very narrow circumstances. Applying these guidelines, the Article urges courts to reject a number of civil costs and claims as inconsistent with First Amendment precedents and doctrines, and to review other costs and liabilities in light of the First Amendment values protest activity serves. Beyond the courts, officials and administrators should more carefully consider the First Amendment implications of the cumulative – and rising – costs of dissent.

CFP: Michigan Law Junior Scholars Conference

The University of Michigan Law School invites junior scholars to attend the 7th Annual Junior Scholars Conference, which will take place virtually on April 16-17, 2021. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Michigan Law journals have also agreed to give serious consideration to publish selected papers. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.  More information here:  Download Cfp Michigan Law School 2021 Junior Scholars Conference

Applications are due by January 4, 2021.

AALS Torts Section 2020 Newsletter

. . . is here:  Download Torts Newsletter 2020

Thanks to Tim Lytton.

Three by Nolan

Donal Nolan has posted three pieces to SSRN.  First, Assumption of Responsibility:  Four Questions; the abstract provides:

Although the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a distinct ground on which liability is imposed, or merely a foil for policy arguments ¬– or for another, more general, test for the recognition of duties of care. Matters are complicated by the fact that assumption of responsibility does not fit neatly within the orthodox categories of ‘tort’ and ‘contract’, but hovers uncertainly between the two. The aim of this article is to try to bring some clarity to the controversies surrounding assumption of responsibility. Four questions frame the analysis. What does assumption of responsibility mean? When does it matter? Why do we need it? And where does it belong? Although the answers to some of these questions are necessarily tentative, at least one conclusion should become clear, namely that assumption of responsibility is a meaningful and distinctive basis on which to impose negligence liability.

Second, The Essence of Private Nuisance; the abstract provides:

One meaning of the word ‘essence’ is the feature or set of features that defines a thing. My claim in this chapter is that the essence of the tort of private nuisance in this sense is interference with (or impairment of) the usability of the claimant’s land. Although this claim is merely a clarification of the orthodox definition or conception of the tort, the clarification turns out to be significant. Furthermore, while this central defining feature of private nuisance is well-established, it has been the subject of very little sustained analysis, and one of the aims of this chapter is to begin the task of plugging that gap. And finally, the orthodox conception of private nuisance has come under attack recently, and there is a danger that without a robust defense of it the coherence and utility of the tort will be compromised. In this chapter I seek to provide such a defense.

The chapter is divided into three main parts. In the first part, I show how orthodox it is to define private nuisance by reference to interference with the use and enjoyment of land, seek to clarify this defining idea as concerned with the abstract usability of the land, and consider the implications of this analysis for the scope of the private nuisance action. In the second part, I summarize and then critique a recent challenge to the orthodox conception of the tort, which I call the ‘physical invasion’ view. And in the final part, I briefly consider some of the implications for property theory of the orthodox conception of private nuisance, properly understood.

Finally, Tort and Public Law:  Overlapping Categories?; the abstract provides:

This article explores the relationship between tort law and public law as legal categories. The principal argument of the article is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. I begin my analysis with the two tort doctrines that seem to me most clearly to fall within public law, namely the tort of misfeasance in public office and the availability of exemplary damages in cases of oppressive, arbitrary or unconstitutional action by servants of the government. I then go on to look at a more ambivalent doctrine, the tort of malicious prosecution. Finally, I consider the implications of conceiving of these various doctrines as part and parcel of public law, rather than private law. It follows from my analysis that there is no clear boundary between ‘tort law’ and ‘public law’, but rather a degree of overlap between the two categories. There are lessons here for both private lawyers and public lawyers. The lesson for private lawyers is that attempts to reconcile these doctrines with general private law principles are misguided. The lesson for public lawyers is that closer examination of these doctrines may further understanding of the nature and purposes of public law.

Czapanskiy on Taxing the Sale of Structured Settlement Income Streams

Karen Czapanskiy has posted to SSRN Tax Policy, Structured Settlements and Factoring:  Making Exploitation Easy and Profitable.  The abstract provides:

Secondary sales of streams of income payable under structured settlements of tort claims are such a disfavored transaction that Congress imposed a punitive 40 percent excise tax on them. These “factoring transactions” are disfavored because it is believed that payees are likely to be exploited, to dissipate the lump sum which is paid for the stream of income and to become dependent on taxpayers when payees become indigent as a result. Congress was also persuaded that state courts could keep an eye on the problems, however, so the 40 percent excise tax is excused if the transaction is approved by a state court in a proceeding under a state “Structured Settlement Protection Act” or SSPA.

State court supervision of factoring transactions might be an adequate response to the problems raised by secondary sales if the only person who suffers negative consequences is a self-supporting individual who is likely to remain so even after spending the money paid for the factoring transaction. The reality, however, requires a deeper look at the context. Most of the tort plaintiffs who sell their streams of income may be vulnerable to commercial exploitation because they are disabled people with significant cognitive, behavioral, and emotional issues. If the factoring transaction results in the predicted dissipation of the lump sum payment, a payee’s loss of a regular stream of income and subsequent impoverishment may affect the people who care for them, mainly their mothers, and the people who care for their dependents, another group of women. Most payees live in communities of color characterized by concentrated poverty—communities that could benefit from having more residents with income-producing assets. The structured settlement factoring industry knows all of this and uses the overlapping vulnerabilities to strip the payees, their families, and their communities of the only major asset that most of the payees will ever own. Given this context, I argue that critical tax policy supports repealing the exemption of SSPA-approved factoring transactions from the excise tax.

Frye & Miers on Internet Trolls and Section 230

Brian Frye & Jess Miers have posted to SSRN Combating Internet Trolls:  The Right of Publicity and Section 230.  The abstract provides:

Section 230 protects internet trolls and websites from liability for defamation and other torts, but from liability for intellectual property infringement. This essay argues that some plaintiffs may be able to use the right of publicity to bring claims otherwise preempted by Section 230. Specifically, it reflects on whether Kenneth Zeran could have filed a successful right of publicity action.

Jaeger on the Empirical Reasonable Person

Christopher Brett Jaeger has posted to SSRN The Empirical Reasonable Person.  The abstract provides:

The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community customs or norms. Surprisingly, this scholarly debate has always been more philosophical than empirical. Though it is often lay jurors who determine whether litigants’ behavior is reasonable, very little work has actually examined how laypeople make this determination.

This Article approaches the reasonableness debate from a fresh empirical perspective, examining the factors that influence whether laypeople judge behavior reasonable. Across four experiments, participants’ judgments consistently depended on information about the behavior of others—and never depended on whether precautions were cost-justified. These findings supply the first experimental evidence that lay decision makers understand reasonableness more in behavioral than in economic terms; indeed, they may not understand reasonableness in economic terms at all.

After describing the experimental findings, the Article unpacks some of their implications. First, the Article contends that tort law’s reasonable person standard both is and should be informed by observations and beliefs about others’ conduct. Second, the Article identifies challenges that arise from conceiving of the reasonable person in economic terms. Finally, the Article raises the possibility that decision makers’ understanding of reasonableness varies—and perhaps should vary—depending on the nature of the alleged negligence at issue.

Concern that Convergence of Flu and COVID Could Boost Med Mal Claims

Because initial symptoms of flu and COVID-19 are similar, some experts are concerned that physicians will mistake the two, leading to an increase in malpractice claims.  Business Insurance has details.

Goudkamp & Nolan on an Empirical Perspective of Contributory and Professional Negligence

James Goudkamp & Donal Nolan have posted to SSRN Contributory Negligence and Professional Negligence:  An Empirical Perspective.  The abstract provides:

Although contributory negligence is usually associated with accident cases, it is frequently pleaded by defendants who have been sued for negligence in the performance of their professional duties, and yet very little is known about the impact of the doctrine in professional negligence litigation. In this chapter, we seek to fill this gap, by means of both empirical and qualitative analysis of recent contributory negligence case law in the United Kingdom. This analysis suggests that there are certain distinctive features of the operation of the contributory negligence doctrine in the professional negligence context.

Ginsberg on Palsgraf and Med Mal

Marc Ginsberg has posted to SSRN Palsgraf Meets Medicine:  Physician Beware!--The Unidentified Non-Patient and the Duty of Care.  The abstract provides:

This paper focuses on the intersection of proximate causation and physician liability. Specifically, the issue is this: should a physician be liable to an unidentified victim of a motor vehicle accident caused by a physician’s patient who was not warned to avoid driving due to a medical condition, prescription medication or procedure which may impair the patient’s driving ability? This paper surveys the jurisprudence of various states in search of the answer.