TortsProf Blog

"New Frontiers in Torts" Symposium at Southwestern

The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles.  The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish.  The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion.  Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms.  In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others.  The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus.  The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts.  Registration for the symposium is available now.

Speakers and moderators at the symposium will include the following:

• Ronald Aronovsky, Professor of Law, Southwestern Law School;
• Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
• Alan Calnan, Professor of Law, Southwestern Law School;
• Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
• James Fischer, Professor of Law, Southwestern Law School;
• Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
• Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
• Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
• Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
• Francis McGovern, Professor of Law, Duke Law School;
• Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
• Brian Panish, Founding Partner, Panish, Shea & Boyle;
• R. Rex Parris, Founding Partner, Parris Law Firm;
• Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
• Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
• Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
• Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
• Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
• Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
• Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
• Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.

Cross-posted from Mass Tort Litigation Blog.

19th Annual Conference on European Tort Law

The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to the 19^th Annual Conference on European Tort Law, which will be held in Vienna from April 16 to 18, 2020.

The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe. A Special Session on Saturday morning is dedicated to the increasingly relevant topic of ‘Liability for Digital Technologies’.

The flyer is here:  Download ACET2020_Folder_Email

Zick on the Costs of Dissent

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

This Article holistically examines the threat that civil liabilities and costs pose to effective political protest. The immediate impetus for examining the costs of dissent is the appearance of new civil liability claims, including “negligent protest,” “conspiracy to protest,” and “malicious petitioning.” However, these claims merely add to an already challenging and burdensome protest environment, which imposes legal, regulatory and cultural restrictions on protest activities. In addition, a wide variety of more traditional costs ranging from permit fees to punitive damages also affects contemporary protest. Owing to their potential chilling effect on expressive activities, courts have special obligations to review both new theories and traditional costs skeptically, to demand precision in terms of liability standards, and to reject civil liability when it is inconsistent with First Amendment rights and commitments. Applying these guidelines, the Article urges courts to reject new theories of liability such as “negligent protest” and “malicious petitioning.” It also encourages courts and lawmakers to more carefully consider the First Amendment implications of other aspects of the cumulative – and rising – costs of dissent.

Conk on the Cato Institute and Qualified Immunity

At Otherwise, George Conk details the Cato Institute's recent battle against qualified immunity.

Goldberg & Zipursky: Recognizing Wrongs

John Goldberg & Ben Zipursky have published Recognizing Wrongs from Harvard University Press.  From the blurb:

Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.

Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.

Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

I got my copy yesterday; get yours here. 

Smith on the Structure of Remedial Law

Stephen Smith has posted to SSRN Rights, Wrongs, and Injustices:  The Structure of Remedial Law--Introductory Text.  The abstract provides:

In this text, which comprises the 'Preface' and 'Introduction' to Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019), I set out the foundations for the first comprehensive account of the scope, foundations, and structure of the law governing private law remedies (understood here as judicial rulings) in common law jurisdictions.

Substantively, this introductory text explains what remedial law is, why it is important, and how common law lawyers’ failure to take remedies seriously as a legal subject has impoverished their understanding not just of remedial law, but also of the broader private law. As part of this explanation, it also introduces four themes that run through the book’s examination of particular remedies. First, the question of what courts should do when individuals seek their assistance (the focus of remedial law) is different from the question of how individuals should treat one another in their day-to-day lives (the focus of substantive law). Second, remedies provide distinctive reasons to perform the actions they command; in particular, they provide reasons different from those provided by either rules or sanctions. Third, remedial law has a complex relationship to substantive law. Some remedies are responses to rights-threats, others to wrongs, and yet others to injustices. Further, remedies respond to these events in different ways: while many remedies merely replicate substantive duties, others modify substantive duties and some create entirely new duties. Finally, remedial law is underpinned by general principles — principles that cut across the traditional distinctions between ‘legal’ and ‘equitable’ remedies.

Goudkamp on Beever on a Theory of Tort Liability

James Goudkamp has posted to SSRN Book Review:  A Theory of Tort Liability.  The abstract provides:

Allan Beever’s latest book, A Theory of Tort Liability, builds on his previous major theoretical works regarding tort law, those being Rediscovering the Law of Negligence, and The Law of Private Nuisance. In the same vein as his earlier projects, Beever defends a rights-based conception of tort law. His ultimate concern in A Theory of Tort Liability is to explain 'how [the] rights [that underpin tort law] relate to each other and ground a systematic form of liability'.

Polsky on Federal Tax Implications for PI Plaintiffs and Lawyers

Gregg Polsky has posted to SSRN Taxing Litigation:  Federal Tax Concerns of Personal Injury Plaintiffs and Their Lawyers.  The abstract provides:

This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount of damages awarded. These attempts have been met with varying degrees of success, depending on the jurisdiction and context.

The Article then addresses the personal tax issues of trial lawyers themselves. Structured attorney fee arrangements, whereby these lawyers attempt to defer tax on contingent fees, are discussed. The tax deductibility of litigation costs advanced by contingent fee lawyers to their clients is considered. Finally, the Article concludes with a discussion of how provisions of the 2017 Tax Act might affect trial lawyers.

NJ: Public Defenders and the Tort Claims Act

On Monday, the New Jersey Supreme Court heard oral arguments in the case of a wrongly convicted man now suing his public defender.  The court is considering two issues.  First, whether an attorney acting on behalf of the government to represent a private client, where representation is required by the constitution, is entitled to protections under the state's tort claims act when sued for legal malpractice.  Second, whether the plaintiff's loss of liberty is separate from pain and suffering.

George Conk represented the state bar association on the first issue.  He has details at Otherwise.

Pasquale on Data-Informed Duties in AI Development

Frank Pasquale has posted to SSRN Data-Informed Duties in AI Development.  The abstract provides:

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to industry to help it avoid preventable accidents. It will also assist a judiciary that is increasingly called upon to develop common law in response to legal disputes arising out of the deployment of AI.

JOTWELL Torts: Sebok on Herstein on Moral Responsibility in Negligence

At JOTWELL, Tony Sebok reviews Ori Herstein's Nobody's Perfect:  Moral Responsibility in Negligence.

Duff on Expanding Benefits in Workers' Comp

Michael Duff has posted to SSRN Post-Traumatic Stress Disorder (PTSD) Coverage and other Expanding Benefit Changes in the Workers' Compensation Insurance Marketplace:  Academic Legal Perspective.  The abstract provides:

This paper discusses the increased use of causation presumptions in workers' compensation cases involving firefighters and other first responders. It also considers increasing workers' compensation coverage of post traumatic stress disorder with respect to those same categories of workers.The paper discusses how workers' compensation coverage of certain conditions tends to parallel the growth of potential tort liability, observes that disease presumptions were a feature of early 20th century workers' compensation statutes (and so are not new), and argues that recognition of workers' compensation "mental-mental" claims has been consistent with "zone of danger" expansion of the negligent infliction of emotional distress cause of action.

Sugarman on Traynor

Steve Sugarman has posted to SSRN Justice Roger J. Traynor, Pragmatism, and the Current California Supreme Court.  The abstract provides:

California Supreme Court Justice Roger J Traynor entered the debate between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions,especially in torts. In this article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the "Rowland" factors, which promote the treatment of “no breach” cases as “no duty” cases. In Part II, I demonstrate the prominence of pragmatism in the Court’s recent decision-making, but not the sort of pragmatic thinking that Traynor expressed. In Part III, I speculate as to how Traynor might have wanted these recent cases resolved based on his pragmatic endorsement of enterprise liability.

Anita Bernstein's "The Common Law Inside the Female Body" Discussed in Online Symposium at Northwestern Law Review

From the  Faculty Lounge:

The Northwestern University Law Review Online has published a symposium issue devoted to Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press 2019), including a response by Professor Bernstein.  Here is the publisher's description of the book:

In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.

Here are the essays in the symposium line-up:

Bridget J. Crawford, The Common Law as Silver Slippers
David S. Cohen, The Promise and Peril of a Common Law Right to Abortion
Joanna L. Grossman, Women are (Allegedly) People, Too
Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle
Margaret Chon, Intellectual Property Infringement and the Right to Say No
Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law
Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body
Anita Bernstein, Negative Liberty Meets Positive Social Change

Bernstein will receive the William L. Prosser Award at the AALS Annual Meeting in January.

FL: Appellate Court Upholds Constitutionality of Med Mal Cap if Arbitration Offer Had Been Rejected by Plaintiff

On Wednesday, a south Florida appellate court upheld as constitutional a $350,000 cap on pain and suffering in med mal cases in which a healthcare provider's offer to arbitrate was rejected and the plaintiff filed suit.  The distinction is important because the Florida Supreme Court held in 2017 that caps on pain and suffering in med mal cases generally are unconstitutional.  WUSF has the story.

Congress Passes Administrative Compensation Procedure for Military Medical Malpractice

On Tuesday, the Senate voted, 86-8, to pass the National Defense Authorization Act.  The Act included $400M for the Defense Department to investigate and pay out military med mal claims internally, bypassing the Feres Doctrine.  President Trump is expected to sign the legislation shortly.  I reported about this possibility last week.  Fox 46 has details.

Goudkamp on Lunney on Australian Tort Law

James Goudkamp has posted to SSRN Book Review:  A History of Australian Tort Law 1901-1945:  England's Obedient Servant?.  The abstract provides:

Recent years have witnessed a surge of interest in the historical foundations of tort law. In 2014, Paul Mitchell published his excellent A History of Tort Law 1900–1950. Now Mark Lunney has published A History of Australian Tort Law 1901–1945: England’s Obedient Servant? Lunney’s book is ultimately concerned to test the claim, which he regards as being received wisdom, that in the period between 1901 and 1945 Australian private law, and Australian tort law in particular, essentially mirrored that in England and that there was little evidence of Australian exceptionalism. Lunney takes the following remark of GW Paton (the Dean of Melbourne Law School) made in 1952 that ‘there are very few significant differences’ between English and Australian law as embodying the conventional view.

Oscar Gray's Memorial Service

The service was held on Tuesday, December 10 at the University of Maryland School of Law.  Speakers included Judge Calabresi and Don Gifford.  Video is here.

Bypassing the Feres Doctrine?

Under a provision inserted into the annual defense authorization bill, Defense Department officials could offer payouts to victims of military medical malpractice.  In what is essentially a compromise, the Feres doctrine, prohibiting victims of military medical malpractice from recovering in court, would not be overturned.  Instead, an administrative compensation program would be created:

In the legislation, lawmakers noted that although the move “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death … that was the result of medical malpractice caused by a Department of Defense health care provider.”

Most claims would be limited to under $100,000, although the secretary could authorize larger payouts in some circumstances.

The House should vote on the bill today, with the Senate following early next week.  The legislation has passed Congress in each of the last 58 years.  Military Times has the story.

CA: PG&E Reaches $13.5B Settlement with Wildfire Victims

On Friday, Pacific Gas & Electric announced a $13.5B settlement with victims of multiple wildfires alleged to have been started by the company's negligence.  Dozens of people died in those fires and tens of thousands of homes were destroyed.  The settlement "will cover claims stemming from some of the deadliest and most destructive fires in the state’s history, including the 2018 Camp Fire and the 2017 Tubbs Fire. A federal bankruptcy judge needs to approve the accord before it becomes final."  Derek Hawkins at WaPo has the story.