TortsProf Blog

JOTWELL Torts: Nolan on Giliker on Vicarious Liability

At JOTWELL, Donal Nolan reviews Paula Giliker's Vicarious Liability in the Common Law World.

Scordato on Causation

Marin Scordato has posted to SSRN Three Kinds of Fault:  Understanding the Purpose and Function of Causation in Tort Law.  The abstract provides:

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning at least three times, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate.

In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law more than in its dominant cause of action, negligence. Unsurprisingly, then, the causation requirement in tort law, and in negligence, has received a great deal of attention and analysis by both courts and commentators. Nevertheless, there remains a striking lack of consensus regarding the causation requirement, ranging from disagreement about the basic rationale for its existence as a part of the negligence claim to the more specific details of its doctrinal organization and articulation.

This article contributes to this ongoing discussion by offering an account of the causation requirement in negligence that places at its core the role that requiring causation plays in seeking to restrict the formal liability generated by the negligence tort to only those defendants who are deemed to be genuinely socially responsible for the harm suffered by the plaintiff. On this account, causation exists as part of the prima facie case for negligence, and in tort law more generally, as a means of insuring that all liable defendants possess a particular kind of fault with respect to the injury suffered by the plaintiff.

In developing this understanding of causation in negligence, the article identifies three different kinds of fault that a defendant might have regarding a given harm, demonstrates how a workable system of injury compensation could exist that requires only one, and explains how and why the causation requirement operates to insure that negligence liability is conditioned upon the presence of all three. Moreover, the article describes how the long-standing doctrinal features of the causation requirement, including its best-known exceptions, can best be understood as serving this underlying policy purpose. Additionally, suggestions for improving the effectiveness of causation doctrine that follow from this analysis are identified and discussed.

Erichson on Victim Civil Litigation and Corporate Accountability

Howard Erichson has posted to SSRN Victim Civil Litigation and the Elusive Goal of Corporate Accountability.  The abstract provides:

This article, written for the Clifford Symposium on Tort Law and Public Policy, examines the challenges of using victim civil litigation to hold corporations accountable for serious wrongdoing. First, it offers thoughts on defining the terms of victim civil litigation, corporate wrongdoing, and corporate accountability. Next, taking seriously the distinction between accountability grounded in punishing the wrongdoer and accountability grounded in providing redress to victims, it considers four major hurdles and how they interfere with each kind of accountability. It calls these hurdles the information asymmetry problem, the collective action problem, the Whac-a-Mole problem, and the agency problem. Using the Wells Fargo story as an illustration, it offers a view into treating victim civil litigation as one tool—important but insufficient on its own—for holding corporations accountable for serious wrongdoing.

Venook & Engstrom on Participatory MDLs

Todd Venook & Nora Freeman Engstrom have posted to SSRN Toward the Participatory MDL:  A Low-Tech Step to Promote Litigant Autonomy.  The abstract provides:

MDLs rely, for legitimacy, on individual client autonomy. That fact justifies a system that affords MDL litigants few, if any, formal safeguards, even while furnishing class members in class actions elaborate procedural protections. In this Chapter, we zero in on litigant autonomy in MDLs. We explain why autonomy matters, dissect its elements, and evaluate how much autonomy MDL litigants seem to have in practice. We then zoom in on a necessary component of litigant autonomy: information. As we explain, when it comes to the promotion and protection of litigant autonomy, effective communication—and the provision of vital information that it enables—is not sufficient, but it is necessary. Even well-informed litigants can be excluded from vital decision-making processes, but litigants, logically, cannot call the shots while operating in the dark.

With that background, we review some troubling evidence indicating that at least some MDL litigants felt confused and uninformed regarding their suits—and, in light of that evidence, we assess what MDL transferee courts are doing to keep litigants up-to-date and well informed. Here, we furnish the results of our own rigorous empirical analysis of court-run MDL websites, which are often extolled, including by judges, as a key venue for client-court communication. Unfortunately, our analysis reveals deep and pervasive deficits with respect to these sites’ usability and relevance. If this is where case-related communication is supposed to be happening, then litigant confusion is unsurprising. We close with several recommendations for courts seeking to harness simple technology to promote better court-litigant communication. We fully recognize: Improved MDL websites aren’t a panacea. But they might, however marginally, promote the autonomy interests of litigants—and light a path for future reform.

Tilley on the Sexism and the First Amendment

Cristina Tilley has posted to SSRN The First Amendment and the Second Sex.  The abstract provides:

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing full legal and cultural equality with men—were complicit in this effort because they scoffed at the domesticated version of womanhood shielded by protective speech torts like slander.

This Article begins by surfacing the deep architecture of nineteenth-century life and law, with its bright boundaries between public and private. When speech regulation was commonplace and the First Amendment slept, public law was free to punish government criticism in the public sphere—a distinctly anti-democratic phenomenon. At the same time though, women in the private sphere targeted by domestic gossip had generous remedies in private law—a distinctly empowering phenomenon. It then shows how, throughout the twentieth century, the ACLU urged the Supreme Court to treat all law as public law and all life as public life. Across this new public terrain, the group argued, speech regulation should be replaced with self-help in the form of muscular counterspeech. ACLU luminaries on the distaff side joined this campaign, convinced that women were on the cusp of full public citizenship. Because this cultural turn would give women status to counterspeak, they were certain the protection of remedial speech torts would grow obsolete.

Today it appears that the women of the ACLU fatally miscalculated. American law has adopted the premise that all can navigate the deregulated marketplace of ideas by marshaling ideas and intellect. But American culture clings to the preference for private womanhood, producing gendered consequences for female speech. Modern women who bring their ideas into the public sphere are just as likely to be refuted with attacks on their domestic status or sexuality as they are with intellectual rejoinders. Stripped of the private law that used to repel such threats, these women are left either to counterspeak in ways that aggravate their personal peril or to withdraw from the speech arena altogether. The Article contends the time has come to acknowledge the tax that speech law extracts from women, and to ask whether today’s expressive marketplace is fair or foul.

Obligations X Conference: Private Law and the State

The Tenth Biennial Conference on the Law of Obligations will be hosted by Western Law and held at the Banff Centre for Arts and Creativity in Alberta, Canada from 11–14 July 2023. The conference will be co-convened by Professors Jason Neyers, Andrew Robertson, Zoë Sinel, and Joanna Langille. The biennial Obligations Conference brings together legal scholars, judges, and practitioners from throughout the common law world to discuss current issues in private law theory and doctrine. The conference is generously sponsored by Borden Ladner Gervais LLP, Hart Publishing, The Marcel A. Desautels Centre for Private Enterprise and the Law, Miller Thomson LLP, Polley Faith LLP and the Social Sciences and Humanities Research Council.  More information and registration here.

St. Thomas (MN) Needs Visitor in Torts

The University of St. Thomas (Minneapolis) School of Law invites applications for at least two Visiting Professor positions at any faculty rank for either the 2023 Fall semester, the 2024 Spring semester, or the full 2023-24 academic year. 

We have specific curricular needs for first year Torts and Lawyering Skills; we will consider candidates’ interest in teaching additional courses in light of our other needs.  Applicants will be expected to teach two classes during a semester visit, and either three or four classes during an academic year visit.

UST Law’s commitments to scholarship, teaching, service, and community are inspired by its mission, which dedicates it, as a Catholic law school, “to integrating faith and reason in the search for truth through a focus on morality and social justice.” We welcome applicants of diverse races, ethnicities, geographic origins, gender identities, ages, socioeconomic backgrounds, sexual orientations, religions, work experience, physical and intellectual abilities, and financial means.

UST Law has been recognized for excellence in various ways  (see:https://www.stthomas.edu/law/about/rankings/):

1. #23 faculty scholarly impact (Sisk/Leiter methodology)
2. #1 in the nation for best practical training (National Jurist) 
3. #8 for “quality of student life” (Princeton Review)
4. #5 for state and local judicial clerkships (Princeton Review)

UST Law is located in the heart of downtown Minneapolis. The University of St. Thomas is the largest private university in Minnesota, with 10,000 undergraduate and graduate/professional students; eight colleges and professional schools (including schools of business, engineering, health, and others); and 55-plus graduate and professional degree programs.

Please submit a cover letter and CV online at http://www.stthomas.edu/jobs/, or contact Interim Associate Dean for Academic Affairs Lisa Schiltz, at lawappointments@stthomas.edu. Review of application materials will begin immediately and continue until the position is filled. 

Oral Argument in Gonzalez v. Google

...apparently did not go well, with several justices admitting they were confused.  The Court is being urged to narrow the protection offered by Section 230 of the Communications Decency Act.  CNN has the story.  

"Concluding the Restatement (Third) of Torts" at Southwestern Law School

Byron Stier and I are pleased to announce "Concluding the Restatement (Third) of Torts" at Southwestern Law School on March 24, 2023:

Since the early 1990s, the American Law Institute has been drafting the Restatement (Third) of Torts.  That effort, down to a handful of projects, is within several years of completion.  Leading scholars, judges, and practitioners, many of them Reporters or Advisers for the final portions of the Restatement, will gather at Southwestern Law School to discuss significant remaining issues.  Occurring during the drafting process, the symposium is designed to affect positively the Restatement, and thus the law.

Sponsored by the Southwestern Law Review, Southwestern’s Panish Civil Justice Program, and the American Law Institute, the symposium will commence with a welcome by Justice Goodwin Liu of the California Supreme Court and the Council of the American Law Institute and will also include a luncheon keynote address by Brian Panish ’84, one of the nation’s leading trial lawyers.

The first panel will focus on the appropriate role of theory in the Restatement process.  The second panel will address issues of medical malpractice, including the proper standard of liability and California’s MICRA cap on damages, recently raised for the first time since its enactment in 1975.  The third panel will consider the controversial question of whether and how to recognize claims for medical monitoring in the context of the affirmative stance taken in the current draft of the Restatement.  Panel four will discuss issues in damages; many of the most heated disputes in tort law concern the proper amount of compensation to be paid for tortious injuries.  The symposium will conclude with a Reporters’ Roundtable, in which three sitting Restatement Reporters provide their analyses of key points from the day.

Speakers include Reporters Nora Freeman Engstrom, Mike Green, and Mark Hall, as well as Mark Behrens, Judge Kevin Brazile, Martha Chamallas, Mark Geistfeld, Deborah Hensler, Keith Hylton, Greg Keating, Nina Kohn, Justice Goodwin Liu, Brian Panish, Rex Parris, Phil Peters, Victor Schwartz, Tony Sebok, Cathy Sharkey, Ken Simons, David Studdert, and Adam Zimmerman.

More information is here.

Levin & Lytton on Gun Industry Immunity

Hillel Levin & Tim Lytton have posted to SSRN The Contours of Gun Industry Immunity:  Separation of Powers, Federalism, and the Second Amendment.  The abstract provides:

In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.

Additionally, this Article addresses unresolved questions concerning constitutional limits on gun industry regulation. PLCAA explicitly strikes a balance between three constitutional principles. It safeguards the individual right to keep and bear arms by protecting the gun industry from civil litigation that would unduly curtail civilian access to firearms. It insists that the separation of powers requires that gun industry regulation should derive from legislation not common law adjudication. It affords state governments autonomy in deciding how to regulate the gun industry, recognizing that there are regional differences in attitudes about how to best reduce firearms-related violence. We counsel against interpretations of the Second Amendment’s application to gun industry regulation that would expand the right to keep and bear arms at the expense of other important constitutional principles such as the separation of powers and federalism.

JOTWELL Contracts: Hoffman on Hylton on Waivers

At JOTWELL, David Hoffman reviews Keith Hylton's Waivers.

Engstrom & Venook on Common Benefit Fees and MDLs

Nora Freeman Engstrom & Todd Venook have posted to SSRN Common Benefit Fees to Promote MDL Integrity.  The abstract provides:

Multidistrict litigation (MDL) has long been dogged by worries about illegitimate—or even fraudulent—claims. These claims, and public concern about them, damage the system; they erode confidence in judicial processes, increase costs, and contribute to rising caseloads. But, while many have noted the problem, and some have even sought to address it, so far, judges’ arsenals have been limited. Some judicial efforts (such as Lone Pine orders) amount to overkill: The entry of a Lone Pine order threatens to chill the vindication of important rights, not merely the initiation of bogus claims. Other efforts, such as plaintiff fact sheets and census orders, suffer from the opposite problem: Because they lack teeth, these orders can encourage a game of judicial whack-a-mole, as some nonmeritorious claims may be rooted out even as more such claims are ushered in.

Against that backdrop, we offer an innovative and practical solution to address this problem head-on. In particular, we explain how MDL transferee judges can harness common benefit fees to induce plaintiffs’ lawyers to improve their screening practices, encouraging lawyers to cull invalid claims before they are filed. By assessing common benefit fees on a sliding scale, judges can financially reward those lawyers who meaningfully vet would-be clients—and penalize those who don’t. Over time, through tailored and targeted efforts, judges can ensure that attorneys are properly incentivized to review the factual basis of suits while also keeping courts open to claims of uncertain-but-possible merit.

Emerson on Franchisor Vicarious Liability

Robert Emerson has posted to SSRN Franchisors in a Jam:  Vicarious Liability and Spreading the Blame.  The abstract provides:

Franchising serves as one of the most popular forms of owning and operating a business. As the franchise model has grown, so too have issues in vicarious liability. Over the years, multiple methods of allocating the blame to franchisors have developed, such as through statutory construction or the emergence of vicarious liability in the common law. With legal classification and the level of control of the utmost importance, franchisors tread lightly in establishing oversight procedures that do not cross over into control of day-to-day operations.

Traditional tests for vicarious liability assess the level of control a franchisor may exercise over a franchisee and whether the entity benefitted from the actions that caused the harm. Other approaches have potentially expanded vicarious liability beyond the agency context. While franchisors try to disclaim their liability, efforts have emerged to hold trademark owners liable for the unfettered use of their marks by a franchisee or licensee. It is a trend tending to favor the injured customer who, after all, seldom knows the difference between franchisor and franchisee. Further, as online presence and sales both increase, so too does the risk of social media and website-based contractual or tort obligations and of deep linking liability within franchise networks.

Consumer surveys about the meaning of licensed trademarks, especially in franchising, and a review of 250 franchisor websites - both undertaken for this article - reveal practical and systemic problems as well as a way forward. Part of the way is through private action, individually or in groups, as consumers must advocate for themselves while also calling for greater oversight from the states or the FTC. Improved supervision of franchisors, such as monitoring their websites and trademarks, can protect consumers and incentivize franchisor behavior. Also, progress can be systemic. With a clearer legal landscape as to vicarious liability, society generally and franchisors particularly can ensure that franchisees meet acceptable business practices and that potential or actual customers of the franchisee are protected from legally flawed and factually dubious interpretations of agency-based responsibility.

Via the ALI website.

JOTWELL Torts: Sebok on Cheng, Guttel, & Procaccia on Waivers of Liability

At JOTWELL, Tony Sebok reviews Edward Cheng, Ehud Guttel, & Yuval Procaccia's Unenforceable Waivers.

Gold on Private Law Theory

Andrew Gold has posted to SSRN When Private Law Theory Is Close Enough.  The abstract provides:

Private law theorists often adopt concepts that are a close, but imperfect, fit for the concepts actually used in the law. Such theorists employ concepts that diverge moderately from the legal concepts courts themselves employ. In other cases, theorists may match the law’s concepts as a legal matter, but they employ concepts that diverge moderately from the concepts found in moral reasoning. Such theories diverge to some degree from the moral understanding, but they are still ‘in the right ballpark.’ This paper assesses the value in legal theories that come close to a set of target concepts, but which are not quite a fit for them.

Smith on Idaho's Law of Seduction

Michael Smith has posted to SSRN Idaho's Law of Seduction.  The abstract provides:

Seduction is a historical cause of action that permitted women’s fathers to bring suit on their daughters’ behalf in sexual assault and rape cases. This tort emerged long ago when law’s refusal to recognize women’s agency made this the only means of recovering damages in these cases. As time went on, women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could therefore be easily forgiven for thinking that such an archaic tort still exists under Idaho law.

But one would be wrong. This article argues that despite the Idaho Supreme Court’s abolition of the “heartbalm” torts of alienation of affections (a plaintiff suing a person who enticed their spouse to end a marriage) and criminal conversation (a plaintiff suing someone who had sex with their spouse), the tort of seduction lives on. Seduction is based in statutes dating back to before Idaho became a state. This means that as much as Idaho’s Supreme Court has critiqued heartbalm torts for being outdated and prone to abuse, these reasons are insufficient for the court to abolish the statute-based tort of seduction.

While seduction is still good law in Idaho, this Article explores whether this a good thing. The gendered language of Idaho’s seduction statutes renders them vulnerable to an equal protection challenge. And the existence of alternate causes of action to seek recovery for sexual harassment, sexual assault, and rape now perform the damage-recovery function that seduction used to address. This Article make the case for the factual existence of Idaho’s law of seduction for the purpose of revealing the many shortcomings with this law, concluding that while Idaho’s tort of seduction continues to exist, perhaps it shouldn’t be long for this world.

Private Law Fellowship at Harvard

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2023. The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academics with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law, unjust enrichment, restitution, equity, and remedies. The Project seeks applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law.

Application materials are due to Bradford Conner (conner at law.harvard.edu) by 9:00 a.m. on February 28, 2023. Details on both the fellowship and the application can be found at http://blogs.harvard.edu/privatelaw/people/

Goldman's Amicus Brief in Gonzalez v. Google

Eric Goldman has posted to SSRN his amicus brief in Gonzalez v. Google.  The abstract provides:

This is Prof. Eric Goldman's amicus brief in the U.S. Supreme Court case of Gonzalez v. Google, involving the scope of 47 USC 230's immunity for user-generated content services. The brief explains the interplay between Section 230 and the First Amendment, including how Section 230 provides important procedural complements to the First Amendment's substantive protections for online publishers. It also explains how the plaintiffs' requests to exclude algorithmic recommendations from Section 230's immunity would undermine Section 230's procedural benefits.

Outside In: The Oral History of Guido Calabresi

Norman Silber has published Outside In:  The Oral History of Guido Calabresi with Oxford University Press.  The blurb provides:

Guido Calabresi is an extraordinary person. His family, of Jewish heritage, occupied a secure and centuries-old position near the top of Italian society-- until the rise of fascism. Guido's parents fled to America on the eve of the war in Europe, with their children, to avoid political and religious persecution. They arrived without money or social standing. Guido's talents and good fortune helped him to thrive at several elite American institutions and to become a leading legal scholar, teacher, law school dean, and judge. He would receive prizes and awards for his contributions; to legal theory, especially for opening up the area of 'law and economics'; for contributions to the modern transformation of American law schools, as the Dean of Yale Law School; and for advancing the development of law including through progressive decisions as a member of the United States Court of Appeals for the Second Circuit.

Outside In is a unique sort of account, written in Guido's remarkable voice based on recordings that which took place over a decade. The book is a unique amalgam of oral history and biography, with supplementary commentaries to explain, elaborate, validate, and interpret and situate the personal narrative within its larger historical context.

Updated:  The author was kind enough to provide a code for 30% off:  ALAUTHC4 

Jacoby on Mass Tort Bankruptcy

Melissa Jacoby has posted to SSRN Sorting Bugs and Features of Mass Tort Bankruptcy.  The abstract provides:

In 1997, after two years of study, the National Bankruptcy Review Commission recognized bankruptcy’s potential as a forum to address mass tort problems, but emphasized that Congress needed to do much more to ensure due process, address major risks of under-compensation and inconsistent compensation of future injured parties, and address uncertainty about the lawfulness of these cases. United States Supreme Court cases invalidating particular limited-fund class actions raised the stakes, casting doubt on certain bankruptcy practices.

Congress adopted neither the commission's proposals nor others on the topic. Mass tort bankruptcy practice continued without legislative clarifications or improvements, culminating in recent high-profile and controversial cases like Purdue Pharma, Boy Scouts of America, LTL (Johnson and Johnson's bankruptcy to cut off ovarian cancer and mesothelioma patients’ access to the civil justice system regarding talc-related claims) and Aearo Technologies (3M's bankruptcy that aspired to stop multidistrict litigation over allegedly faulty earplugs).

Revisiting earlier reform discussions helps reveal how much bugs rather than features drive these kinds of mass tort bankruptcies. Lawyers and defendants (and perhaps some plaintiffs lawyers) gravitate to bankruptcy to do extraordinary things that have weak statutory and constitutional support and are in tension with principles of due process, not to mention federalism and separation of powers. The design of mass tort bankruptcies also tends to blunt the effective operation of standard chapter 11 protections meant to empower individual creditors – tools that often are cited as making bankruptcy “better” for mass tort than other aggregate litigation fora. The analysis in this draft article invites skepticism about whether the system can credibly and constitutionally deliver the level of global resolution that debtors and their co-defendants demand.