TortsProf Blog

Rave on Tort Claims as Property Rights

Theodore Rave has posted to SSRN Tort Claims as Property Rights.  The abstract provides:

Courts have long said that legal claims are a constitutionally protected form of property. But what does that mean? This essay explores the treatment of legal claims as property rights in the context of mass torts in doctrinal, theoretical, and economic terms. Corrective justice and civil recourse conceptions of tort law dictate that tort claims are owned by individual plaintiffs. Allocating these property rights at the individual scale can make it difficult to use public mechanisms, like class actions, to aggregate mass tort plaintiffs’ claims to achieve tort law’s instrumental goals like deterrence horizontal equity. At the same time property rights in tort claims facilitate aggregation and mass settlement through private ordering that often sweeps away individualized distinctions among plaintiffs. While the private aggregate settlements that emerge may sometimes further tort law’s instrumental goals, they do so fortuitously, as a byproduct of intermediaries seeking private gain from bundling claims together for sale to the defendant en masse, and without the transparency or oversight of public alternatives.

Kentucky Law Journal Exclusive Submission

The Kentucky Law Journal has an exclusive submission window, with a particular interest in tort pieces (perhaps in honor of Dean Mary Davis's specialty!).  The details are at Howard Wasserman's Prawfsblawg post here.

Dorfman on the Work of Tort Law

Avihay Dorfman has posted to SSRN The Work of Tort Law.  The abstract provides:

Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two conceptions of tort law appear to dominate the ways we should understand and discharge these tasks. One conception takes tort law to be the law of wrongs whereas the other conception equates tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be that of identifying the nature of the conflict to which it responds (or shapes). In fact, there are three of them: Inherently valuable, tolerably valuable, and valueless conflicts. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to organizing activities at the physical workplace.

Wright on Multiple Legally Responsible Causes

Richard Wright has posted to SSRN Identifying and Assigning Liability Among Multiple Legally Responsible Causes.  The abstract provides:

This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibility and ultimate liability issues, and briefly discusses the legal responsibility and ultimate liability issues.

Hedley on Private Law Theory

Steve Hedley has posted to SSRN Private Law Theory:  The State of the Art.  The abstract provides:

This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.

Geistfeld on Proximate Cause

Mark Geistfeld has posted to SSRN Proximate Cause Untangled.  The abstract provides:

The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across all elements of the tort claim.

In a negligence case, for example, duty determines the risks that factor into the duty to exercise reasonable care. This property implies that the duty must be limited to the risks of foreseeable harm in order for the standard of reasonable care to govern only those harms. Foreseeability for this purpose is defined by the general zones of danger or reference classes that the reasonable person would consider when estimating the likelihood of accidental harm, reducing foreseeability to a behavioral concept that is adequately determinate for resolving the issue of breach. The element of proximate cause then provides a case-specific requirement that the plaintiff’s injury must be within a general category of foreseeable harms encompassed by both the tort duty and its breach—a necessary predicate for liability. The prima facie case accordingly requires the foreseeability test to establish proximate cause for the breach of a duty that is limited to the risks of foreseeable harm.

Once liability has been established, the damages phase of the case requires a further inquiry to fix the full extent of compensable harm proximately caused by the tortious conduct. The foreseeability test produces inequities in the determination of damages that the directness test fairly resolves. This inquiry is structured by the uniformly adopted rule that permits full recovery for an unforeseeably large harm, such as a crushed skull, that was directly caused by a tortious force that would normally cause minor injury, such as a bump on the head. This rationale also explains why the intentional torts exclusively rely on the directness test, eliminating culpability as a confounding factor in the analysis of proximate cause. Because the directness test is a rule for equitably determining compensatory damages, its tort rationale does not justify the directness test for proximate cause in criminal cases, contrary to a widely adopted assumption. Instead of being competing formulations, the directness and foreseeability tests each address different components of a tort claim, explaining why each one is both widely adopted and yet roundly criticized when employed as the only method for determining proximate cause.

Kutner on Property Torts and the Restatements

Peter Kutner has posted to SSRN Property Torts and the Restatements.  The abstract provides:

Essay examining connections between tort law and property, and the Restatements' treatment of tort liability for loss of, damage to or interference with property interests.

Korean Media Law Amendment

In South Korea, the ruling Democratic Party is on the verge of passing a Media Law Amendment that authorizes punitive damages against the media of up to five times compensatory damages.  The standard for punitive damages would be intent or gross negligence.  The law is presented as a way to curtail "fake news," and the government defends the law on the basis that US law is even harsher regarding punitive damages toward the media.  

I don't know what the government has in mind, but, regardless, US law does not support the Media Law Amendment.  The USSC has interpreted the Due Process Clause of the US Constitution as establishing a flexible cap on punitive damages in the form of a single-digit multiplier of compensatory damages (no more than nine times).  Sitting as a common law court in a maritime case, however, the Court referred to a 1:1 ratio as a "fair upper limit."  Moreover, the Due Process limit is said to protect all types of defendants from a system of punitive damages that is widespread in the US.  As I understand Korean law, punitive damages are not generally available; they must be authorized by particular statutes.  Thus far, only a handful of specific statutory allowances of punitive damages have been enacted.  So, in this case, the authorization of punitive damages would be targeting the media specifically.  Additionally, I understand that Korean punitive damages have traditionally been set at a 3:1, not a 5:1, ratio.    

The bigger problem with arguing that US law is harsher against media defendants than the proposed Korean law is that it doesn't take the free-speech protections of the US Constitution into account, particularly the standard needed to prove liability for damages in defamation cases.  The Korean Media Law Amendment would allow punitive damages based on a standard as low as gross negligence.  Very few US jurisdictions allow punitive damages in any kind of case based on gross negligence; the vast majority require a higher standard.  Under US law, for certain types of plaintiffs in a defamation case, gross negligence would not be sufficient to recover even compensatory damages.  Interestingly, in a recent statement, Democratic Party leader Song Young-gil cited Gertz v. Welch as support for the Media Law Amendment, stating the US imposes "tremendously heavy punitive damages."  On remand, the plaintiff in Gertz was awarded $100,000 in compensatory damages and $300,000 in punitive damages.  Gertz, however, is widely understood as requiring "actual malice"--knowledge of falsity or reckless disregard for the truth--prior to receiving punitive damages, at least from a media defendant on matters of public concern.  The $300,000 award was made after the plaintiff proved the "actual malice" standard.  Gross negligence would not have been sufficient.  

Whatever the merits of the Media Law Amendment, and I'm dubious about them, US law does not support its passage.

Kyung-Won Lee of the Seoul Broadcasting System has the story (in Korean). 

Update:  Consideration of the bill has been postponed for a month for further discussion.

Punishment and Private Law

Bloomsbury has released Punishment and Private Law, edited by Elise Bant, Wayne Courtney, James Goudkamp & Jeannie Paterson.  The blurb provides:

Does private law punish? This collection answers this complex but compelling question. Lawyers from across the spectrum of the law (contract, tort, restitution) explore exactly how it punishes wrong doing. These leading voices ask whether that punishment is effective and what its societal role might be. Taking the discussion out of the technical and into a broader realms of a wider purpose, it is both compelling and thought-provoking.

Order online at www.bloomsbury.com – use the code UG8 at the checkout to get 20% off your order!

COVID-19 Suits Against Businesses Through the Lens of Cruise Ship Cases

At Bloomberg News, Robert Iafolla & Jake Holland cover COVID-19 suits against businesses through the lens of cruise ship cases.  Here's the lede:

The limited success of cruise line Covid-19 lawsuits showcases the high bar consumers must meet to hold businesses liable for alleged virus exposure, suggesting they can overcome legal hurdles—but only in the right circumstances.

Cruise ship passengers filed at least 42 lawsuits in federal court alleging injuries—ranging from emotional distress to death—due to exposure to Covid-19, an analysis of Bloomberg Law data shows. About 15% of those cases have settled on undisclosed terms, and 40% of them have been dismissed. None have advanced to trial.

The data highlight the long odds consumers face to win such lawsuits in less confined environments than a cruise ship. The pervasive presence of the virus makes it very difficult to prove that spending time at a specific business caused a consumer to get sick, legal observers say.

Janger & Twerski on Warranties and Amazon

Edward Janger and Aaron Twerski have posted to SSRN Warranty, Product Liability and Transaction Structure:  The Problem of Amazon.  The abstract provides:  

Amazon, and other internet sales platforms, have revolutionized the manner in which goods are purchased and sold. The obligations undertaken by Amazon in those sales are unclear, both as a matter of transparency, and as a matter of legal doctrine. Is Amazon a store? Is it a shipper? Is it a telephone? In various transactions Amazon can play some or all of these roles. Choosing the right metaphor has consequences. Amazon knows this and has done everything it can to deploy the metaphors selectively to its best legal and practical advantage, even when the chosen characterizations are inapt or even mutually inconsistent.

In an earlier article, we explored whether Amazon should be considered a “seller” for the purposes of product liability when a customer purchases goods from a third-party seller using the Amazon platform. We concluded that the answer was an emphatic “Yes.” We examined the relationship between Amazon and the third-party seller, and considered the extent to which Amazon controlled all aspects of the sale. We also noted, to a lesser extent, the way in which the consumer experienced the sale process.

The purpose of this article is, to extend that analysis to include the law of contracts—principally the law of warranty. We ask the next question: Should Amazon be considered a “warrantor” for the purposes of making the implied warranty of merchantability when it serves as an intermediary between a third-party seller and a consumer buyer? Again, we conclude that it does.

This article will proceed in four steps. First, it will explore the formal legal problems that transaction structure creates when sales are intermediated by an internet platform like Amazon. The problem created by Amazon’s manipulation of transaction structure is the same for contract and for tort, but as we shall see, the doctrinal response is not symmetric. Second, it will explore whether that transaction structure should affect substantial rights. To address that question we will look at what a customer actually sees when they purchase something from Amazon. We will show that what the consumer experiences is at odds with the formal transaction structure claimed by Amazon. We will examine the text of the Uniform Commercial Code (UCC), and show that the statute does not preclude Amazon from being considered a warrantor. Further, Amazon could, and probably should be considered a warrantor-by-estoppel, or as an agent. Third, we will consider whether Amazon should be viewed as successfully disclaiming warranty. Here we conclude that the answer is tied inextricably to ongoing debates about the enforceability of boilerplate in consumer contracts. Those debates are reflected in the current battle royal of the Restatement of Consumer Contracts, but more importantly, in uncertainty in the courts. For that reason, warranty will offer an imperfect solution at best. So, finally, fourth, we return to tort, and argue that the section 20 of Third Restatement of Torts – Product Liability offers a somewhat more direct solution, including within the definition of "seller," somebody who "sells or otherwise distributes."

Abrams Receives 2021 Blackboard Catalyst Award for Teaching and Learning

University of Louisville TortsProf Jamie Abrams's work (along with that of Valerie Harris and Marija Sasek) designing a medical malpractice expert witness deposition simulation for law and dental students has resulted in the 2021 Blackboard Catalyst Award for Teaching and Learning.  Abrams based the simulation on the principles in her West Academic book, Tort Law Simulations:  Bridge to Practice.  UL News has the story.

Harris on Rationales for Vicarious Liability

Daniel Harris has posted to SSRN The Rival Rationales for Vicarious Liability.  The abstract provides:

Vicarious liability means holding one person responsible for the misdeeds of another just as if the wrongdoer and the defendant were the same person. There are two competing rationales for the idea. The agency rationale is based on the idea that agents act as extensions of their principals’ legal personality. According to the agency rationale, vicarious liability requires proof the wrongdoer was an agent, apparent agent, or employee of the defendant (the exact relationship depending on the type of tort) plus proof the misconduct occurred within the scope of the agency. Under an alternative approach that Dean William Prosser dubbed the “modern justification of vicarious liability,” agency does not matter. Corporate defendants must pay, regardless of fault, for enterprise related torts, even if the actual wrongdoer was an independent contractor or an employee acting outside the scope of employment. Scholars often present the modern justification as the law and ignore the agency rationale or treat it as outmoded. This Article will show that, in fact, the agency rationale is supported by powerful arguments and is generally followed by the courts (outside of California).

Lande on Collaborative Law

John Lande has posted to SSRN Canaries in the Litigation Coal Mine.  The abstract provides:

Although litigation provides many vitally important benefits for individuals and society, it can harm everyone it touches, including litigators. Collaborative lawyers offer clients the collaborative process, which consists solely of negotiation. Because these lawyers find litigation to be extremely traumatic, they value the opportunity to handle collaborative cases, in which they are precluded from litigating by virtue of an enforceable “disqualification agreement.” These lawyers are like canaries in the “litigation coal mines,” warning of dangers that litigation can cause.

This article highlights traumas that litigation can cause law students, lawyers, and parties. It describes the benefits that collaborative practice can provide for lawyers and parties – as well as challenges in collaborative practice. However, relatively few parties use collaborative practice, especially in non-family law cases. This article emphasizes the importance of all lawyers helping clients manage their conflicts as well as possible while minimizing the harm to clients, people in their lives, and themselves (i.e., the lawyers). It includes links to practical resources to help lawyers do so, especially when they need to litigate.

Sawacki on Ethical Malpractice

Nadia Sawacki has posted to SSRN Ethical Malpractice.  The abstract provides:

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws analogies to arguments that have been raised in the context of legal malpractice, informed consent, and clinical practice guidelines. The Article concludes that while standards of medical ethics may be relevant to assessing the standard of care in medical malpractice cases, it may be premature to treat ethics violations as prima facie grounds for liability.

WalletHub: How Much Car Insurance Do I Need?

WalletHub covers how much automobile insurance to purchase here.

JOTWELL Torts: Avraham on Cheng et al. on Sequencing in Damages

Over at JOTWELL Torts, Ronen Avraham reviews Sequencing in Damages by Edward Cheng, Ehud Guttel & Yuval Procaccia.

Sinai & Shmueli on Maimonides and Tort Theory

Yuval Sinai & Benny Shmueli have published Maimonides and Contemporary Tort Theory with Cambridge University Press.  The blurb provides:

Maimonides lived in Spain and Egypt in the twelfth century, and is perhaps the most widely studied figure in Jewish history. This book presents, for the first time, Maimonides' complete tort theory and how it compares with other tort theories both in the Jewish world and beyond. Drawing on sources old and new as well as religious and secular, Maimonides and Contemporary Tort Theory offers fresh interdisciplinary perspectives on important moral, consequentialist, economic, and religious issues that will be of interest to both religious and secular scholars. The authors mention several surprising points of similarity between certain elements of theories recently formulated by North American scholars and the Maimonidean theory. Alongside these similarities significant differences are also highlighted, some of them deriving from conceptual-jurisprudential differences and some from the difference between religious law and secular-liberal law.

Baker, Avraham & Sebok on the Market for Post-Settlement Litigant Finance

Lynn Baker, Ronen Avraham & Tony Sebok have posted to SSRN The Mysterious Market for Post-Settlement Litigant Finance.  The abstract provides:

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options.

This funding made headlines during the recent NFL concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of “predatory lending.” Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre- and post-settlement litigant funding.

This Article is the first to present systematic, large-scale data on post-settlement litigant funding—the type of funding most NFL players reportedly received. We were given unrestricted access to the complete archive of sixteen years of funding applications and funding contracts from one of the largest consumer litigant funding companies in the United States. These data, which are robust and representative, enable us to make transparent the terms and true price to consumers of this formerly mysterious funding. We find that the Funder offers not only clearer contract terms but also better financial terms to post-settlement clients relative to pre-settlement clients. Yet these better terms do not come close to reflecting the virtually nonexistent litigation risk to the Funder. We therefore recommend that post-settlement litigant funding be subject to the same regulations as conventional consumer credit and that a standardized, simple disclosure be required.

Torrey on Harmonizing Wrongs and Compensation

At Workers' Compensation Law Prof Blog, David Torrey, a Pennsylvania workers' compensation judge who also teaches at Pitt, covers my latest article, with a focus on the WC material.