TortsProf Blog

Morgan: Great Debates in Tort Law

Jonathan Morgan has published Great Debates in Tort Law with Hart Publishing.  The blurb provides:

Exploring the key discussions and arguments in tort law, this book enables students to get a deeper and more rounded understanding of the subject.

Part of the Great Debates series, it is an engaging introduction to the more advanced legal concepts, such as negligent breach of duty and vicarious liability. Each chapter is structured around questions and debates that provoke deeper thought. It features summaries of the views of notable experts on key topics and each chapter ends with a list of further reading.

This book is ideal for use by ambitious students alongside a main course textbook, encouraging them to think critically, analyse the topic and gain new insights. The development of these skills and the discursive nature of the series, with an emphasis on contentious topics, means the book is also useful for students when preparing their dissertations. Suitable for use on courses at all levels, this book helps students to excel in coursework and exams.

Giliker: Vicarious Liability in the Common Law World

Paula Giliker has published Vicarious Liabilty in the Common Law World with Hart Publishing.  The blurb provides:

This book is the one place to find unprecedented access to case-law, doctrinal debates and comparative reflections on vicarious liability from across the common law world. The doctrine of vicarious liability, that is strict liability for the torts of others, represents one of the most controversial areas of tort law. Unsurprisingly it is a doctrine that has been discussed in the highest courts of common law jurisdictions. This collection responds to uncertainties as to the operation of vicarious liability in twenty-first century tort law by looking at key common law jurisdictions and asking expert scholars to set out and critically analyse the law, identifying factors influencing change and the extent to which case-law from other common law jurisdictions has been influential. The jurisdictions covered include Canada, England and Wales, Australia, Singapore, Ireland, Hong Kong and New Zealand.

In providing critical analysis of this important topic, it will be essential and compelling reading for all scholars of tort law and practitioners working in this field.

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

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Crootof on Implementing War Torts

Rebecca Crootof has posted to SSRN Implementing War Torts.  The abstract provides:

Under the law of armed conflict, no entity is accountable for lawful acts in war that cause harm, and accountability mechanisms for unlawful acts (like war crimes) rarely create a right to compensation for victims. Accordingly, states now regularly create bespoke institutions, like the proposed International Claims Commission for Ukraine, to resolve mass claims associated with international crises. While helpful for specific and politically popular populations, these one-off institutions have limited jurisdiction and thus limited effect. Creating an international “war torts” regime—which would establish route to compensation for civilians harmed in armed conflict—would better address this accountability gap for all wartime victims.

This Article is the first attempt to map out the questions and considerations that must be navigated to construct a war torts regime. With the overarching aim of increasing the likelihood of victim compensation, it considers (1) the respective benefits of international tribunals, claims commissions, victims’ funds, domestic courts, and hybrid systems as institutional homes; (2) appropriate claimants and defendants; and (3) the elements of a war torts claim, including the necessary level and type of harm, the preferable liability and causation standards, possible substantive and procedural affirmative defenses, and potential remedies.

Domestic law has long recognized that justice often requires a tort remedy as well as criminal liability; it is past time for international law to do so as well. By describing how to begin implementing a new war torts regime to complement the law of state responsibility and international criminal law, this Article provides a blueprint for building a comprehensive accountability legal regime for all civilian harms in armed conflict.

Torts at the AALS Annual Meeting in San Diego

At the AALS Annual Meeting, the Torts & Compensation Systems Section has two events on Thursday, January 5th.  From noon until 1:00 is the awards ceremony at which the Prosser Award is bestowed upon John Goldberg and Ben Zipursky.  From 3:00 until 4:40 is the Section meeting.  The panel is entitled "Opioid Litigation:  The Good, the Bad, and the Ugly."  Speakers include Elizabeth Cabraser, Nora Engstrom, Charles Lifland, Linda Mullenix, Jennifer Oliva, and Lindsey Simon.  Tim Lytton will serve as moderator.  The blurb provides:

The nationwide wave of lawsuits against opioid manufacturers, distributors, and retailers is, arguably, the most significant litigation phenomenon of the 21st century. Opioid litigation includes many features that are now familiar to observers of mass torts: multi-district class-action litigation, government-entity plaintiffs, corporate bankruptcy, and eye-popping settlements. This session will offer a brief analysis of the current state of opioid litigation. Panelists and session attendees will then share their views on the success of this litigation as a response to the opioid crisis and discuss general lessons to be learned for the future.

Today is the last day for early-bird registration.

Heled, Levin, Lytton, & Vertinsky on a Statutory Tort Solution to the Reproductive Wrong of Misrepresentation

Yaniv Heled, Hillel Levin, Tim Lytton & Liza Vertinsky have posted to SSRN Righting a Reproductive Wrong:  A Statutory Tort Solution to Misrepresentation by Reproductive Tissue Providers.  The abstract provides:

Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring tort claims, we aim to jump-start more effective government oversight and industry self-regulation. The proposed legislation is also responsive to political dynamics surrounding the abortion debate and, thus, stands a better chance of adoption than have prior proposals.

Engstrom, Hyman & Silver Amicus Brief on Damages

Nora Engstrom, David Hyman & Charles Silver have filed an amicus brief in a Texas case on damages:

The brief addresses two misguided proposals that Petitioners—tort defendants in the trial court below—are pushing in a case currently before the Supreme Court of Texas.  The first proposal is to require Texas courts to consider comparison cases when reviewing the reasonableness of awards of noneconomic damages.  The brief argues that that proposal is unsound conceptually and unworkable empirically, which is why other courts that have tried the approach have quickly abandoned it.  Second, Petitioners insist that noneconomic damages should be limited to a predetermined ratio of economic damages, as is currently the case for compensatory damages and punitive damages.  The brief argues that, in addition to violating the bedrock principle that prevailing tort plaintiffs are to be made whole, this second proposal, by tethering damages for pain and suffering to lost wages, would disproportionately harm certain (low-wage-earning) accident victims, including women, children, and the elderly.  In the brief’s words:  “If Petitioners have their way, Texas’s civil justice system will systematically (but irrationally) discount the pain endured by old persons, young persons, and stay-at-home moms.”  Finally, the brief takes issue with the contention by Petitioners and their supporting amici that noneconomic damage awards in Texas have “skyrocketed.”  For starters, the brief notes that, although the insurance industry amici have proprietary data on which their business models depend, they have offered no evidence to support their empirical claim.  That silence is telling.  Moreover, after compiling and analyzing the best data that is publicly available, the brief reports that it appears that noneconomic damages aren't increasing but are, rather, in sharp decline.  

The brief is here:  Download Law Professor Amici Curiae Brief in Support of Respondents (1)

Gold & Smith on Restatements and the Common Law

Andrew Gold & Henry Smith have posted to SSRN Restatements and the Common Law.  The abstract provides:

Restatements interact with the common law in multiple ways. Restatements reflect the common law, but they also may do much more; for example, they may accelerate legal reform, and they may freeze the law in place. This chapter considers ways that Restatements can address a concern that Justice Cardozo emphasized: the need for a balance between certainty and flexibility. With that in mind, a central concern is the way that the common law operates as a complex system. The system of the common law is a hybrid of a spontaneous and a made order; it is also, potentially, a loosely connected system rather than the kind of deductive system that some formalists imagine. Taking these features into account, we argue that a key consideration in the drafting of Restatements should be the architecture of the common law, including its conceptual structure. Restatements can seek an “architectural fit,” and in doing so they can strike a workable balance between certainty and flexibility.

Robertson on Justifying Liabilities and Duties

Andrew Robertson has posted to SSRN Justifying Liabilities and Duties.  The abstract provides:

This chapter argues that a thorough consideration of the justifications for the law of obligations requires close attention to liability and duties in addition to rights. Liability provides an important frame of reference for any justificatory exercise in the law of obligations, for two reasons. The first is that, historically and as a matter of practice, the common law of obligations begins with, and focuses primarily on, liability rather than rights and duties. While it is possible, through careful study, to identify rights and duties in the common law, the common law is not imposed on us through the announcement of general rights or duties. The common law is explicated through judgments, and in private law cases those judgments mostly take the form of justifying liability or justifying the denial of liability. A focus on liability as a justificatory frame of reference reminds us of the context in which rights, duties and liabilities are identified, explicated, developed and enforced. It also reminds us of the role of the state and the interaction between the public interest, the goal of promoting social harmony and the conventional morality that underlies the law of obligations.

A second reason to consider liability as a frame of reference is that important questions of justification arise in relation to primary liabilities. Those questions will be left out of account in an analysis that focuses exclusively on rights and duties. This chapter uses the examples of equitable estoppel and the right to performance of a contractual promise to explore the difficulty that is encountered in determining the existence and significance of rights in the common law of obligations, and the difficulty that is encountered in drawing the boundary between right/duty relationships and liability/power relationships. The chapter sketches some ideas about possible justifications for two particularly controversial forms of primary liability: vicarious liability and equitable estoppel. The final part of the paper discusses the need to take account of duties in the analysis of justification in private law. The duty perspective raises the idea of behaviour guidance as a possible justification of the common law of obligations. In order to understand why private law cannot be seen as a set of ‘guidance rules’, we need to turn to the relationship between duties, rights and liability. The paper therefore concludes that a full understanding of justification can only be gained by taking account of liabilities, duties, and rights.

JOTWELL Torts: Tilley on Cardi & Chamallas on Negligent Rape

At JOTWELL, Cristina Tilley reviews Jonathan Cardi & Martha Chamallas's A Negligence Claim for Rape. 

Tort Law Day 2022 at the American Museum of Tort Law

The Museum is having a virtual event for Tort Law Day 2022 on Saturday, October 29 at 1:00 Eastern.  Register here.

Shanin Specter

1:00 pm ET - Tort Law An Instrument of Social Justice
Founding Partner, Kline & Specter

Joanne Doroshow

1:30 pm ET - The Importance of Protecting and Advancing Tort Law
Founder and Executive Director of the Center for Justice & Democracy

Professor Valerie P. Hans

2:00 pm ET- Understanding and Safeguarding the Trial By Jury
Charles F. Rechlin Professor of Law, Cornell Law School

Greg Kafoury

2:30 pm ET- Seeking Justice for Injured Plaintiffs
Partner, Kafoury & McDougal

Ralph Nader

3:00 pm ET- Educating The Public About the Role of Tort Law in our Democracy
Consumer Advocate & President of the American Museum of Tort Law

Phil Goldberg on Public Nuisance

Phil Goldberg has published, in Mealey's Personal Injury Report, Is Today's Attempt at a Public Nuisance "Super Tort" The Emperor's New Clothes of Modern Litigation?  Download Goldberg Public Nuisance Trends in Mealey's (1)

ALI Launches Restatement of Constitutional Torts

From the ALI announcement:

The American Law Institute’s Council voted today to approve the launch of Restatement of the Law, Constitutional Torts. The project will be led by Reporters John C. Jeffries, Jr. of University of Virginia School of Law and Pamela S. Karlan of Stanford Law School.

The project will examine the law of 42 U.S.C. § 1983, which provides an individual the right to sue state government employees and others acting "under color of state law" in federal court for violations of federal law. Actions under § 1983 are the dominant vehicle for securing money damages for federal rights, especially constitutional rights. The project also will cover Bivens actions, the analogous cause of action for violations by a federal officer. Among other topics, the Restatement will cover governmental immunities from suit, local government liability for official policy or custom, and restrictions on § 1983 actions imposed by the Prison Litigation Reform Act and the overlapping law of federal habeas corpus.

The full announcement is here.

Wright on Dialogues with Puppe on Causation

Richard Wright has posted to SSRN Dialogues on Causation with Puppe.  The abstract provides:

This paper describes the contemporaneous development of the thoughts and writings of me and Ingeborg Puppe, the leading German scholar on causation in the law, beginning independently in the 1980s and subsequently, after learning of each other's work, through numerous communications and recent joint publications. We agree on the most important things: e.g., the failure of the strong necessity (but-for/sine qua non) analysis of causation in (duplicative and preemptive) overdetermined causation cases and of the various attempts to save it, the failure of 'singularist' ('I know it when I see it') theories, the proper NESS analysis of causation based on instantiaton of natural laws and related causal generalizations, the rejection of counterfactual reasoning, the acceptance of omissions as causes. the proper analysis of causation by omissions and overdetermined negative causation ('double prevention') cases, the recognition of properties of events and states of affairs (rather than events or states of affairs as whole) as the proper causal relata, and the proper framing of the causation analysis in the law (focusing on the causal connection between the wrongful aspects of the defendant's conduct and the legally relevant injury). But there are some actual or possible areas of disagreement. Puppe treats mental processes and some complex physical processes (e.g., the development of cancer) as indeterministic and thus not subject to the NESS analysis, while I believe they are, at least at a practical level, deterministic. She deems it necessary to treat humanly created rules in addition to causal laws and generalizations based on natural law as causal, while I believe that, as with mathematical principles, causation occurs through humans' undestanding, acceptance and application of those rules and principles rather than through their actual satisfaction. She refuses, at least for legal responsibility purposes, to fully apply the NESS analysis to recognize as causes conditions which are not independently strongly sufficient when there is a simutaneously operative independently strongly sufficient condition. Conversely, she attempts to treat almost all limitations on legal responsibility, including the risk-based limitations, as causally based, while I have always insisted on a strict separation of causal analysis from the distinct analyses of legal responsibility and ultimate liability based on, e.g., the realization of the wrongfully created risks, the existence of a superseding cause, or the the fact that the injury would have occurred anyway in the absence of any legally wrongful conduct (the 'no worse off' limitation).

22nd Annual Conference on European Tort Law

From April 13 to April 14, 2023, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL) will host the 22^nd Annual Conference on European Tort Law in Vienna. The Conference will highlight the main developments in tort law in Europe in 2022 and allow discussion of their implications.

For further information and registration, contact:

European Centre of Tort and Insurance Law (ECTIL)   Institute for European Tort Law (ETL)

Reichsratsstrasse 17/2, A-1010 Vienna, Austria               Reichsratsstrasse 17/2, A-1010 Vienna, Austria

Tel. (0043 1) 4277 29650                                                       Tel. (0043 1) 4277 29651

Email ectil@ectil.org                                                               Email etl@oeaw.ac.at

http://www.ectil.org                                                               http://www.etl.oeaw.ac.at

The flyer is here:  Download Announcement ACET 2023 (eng) 21.10.22

Steel on Material Contribution to Damage

Sandy Steel has posted to SSRN Material Contribution to Damage, Again.  The abstract provides:

This case note considers recent statements about the scope of the doctrine of 'material contribution to damage' in the tort of negligence. It argues that such a rule continues to exist, as a matter of authority, in single tortfeasor cases, but that the authorities are not entirely reconcilable with each other. It explains five matters that need to be addressed in a reform of this area.

Simons on the Reasonable Person

Ken Simons has posted to SSRN The Hegemony of the Reasonable Person in Anglo-American Tort Law.  The abstract provides:

Tort law has increasingly employed the rubric of the reasonable person in a variety of doctrinal domains. Many jurisdictions have rejected a differentiation of landowner duties according to the status of the entrant as trespasser, licensee, or invitee, and substituted a ‘reasonable person’ test. Assumption of risk has been eliminated or greatly narrowed in favor of comparative fault, which asks simply whether the plaintiff failed to act as a reasonable person. The reasonable person plays a significant role even in intentional torts: apparent consent precludes liability when the defendant reasonably (though mistakenly) believes that plaintiff consented; putative self-defense precludes liability when the defendant reasonably (though mistakenly) believes facts that would establish that privilege; and offensive battery requires that the contact be offensive to a ‘reasonable’ sense of dignity. What explains this widespread use of ‘reasonable person’ tests? A desire for simplicity? The normative appeal of such a standard? Normative modesty about adopting a more controversial standard or about specifying more detailed rules? A concern to empower juries? Inertia or lazy thinking? Are such tests mainly descriptive (of ordinary conduct) or mainly idealized and prescriptive? In answering these questions, this paper argues that the hegemony of the reasonable person is sometimes a welcome but often an unwelcome development.

Seattle Jury Awards $275M Against Monsanto in PCB Trial

Last Thursday, a Seattle jury awarded $275 million to six adults and seven children who alleged they suffered brain damage due to exposure to PCB (polychlorinated biphenyls) manufactured by Monsanto.  This was the fifth case against Monsanto over exposure to PCB at Sky Valley Education Center in Washington.  Juries awarded damages in three of the other cases, but a fourth case ended in a mistrial.  Monsanto plans to appeal the verdict.  Amanda Bronstad at Law.com has the story (behind a paywall).  Thanks to Leslie Rowan for the tip.

Epstein on Public Nuisance

Richard Epstein has posted to SSRN The Private Law Connections to Public Nuisance Law:  Some Realism About Today's Intellectual Nominalism.  The abstract provides:

Historically, the law of public nuisance was confined to cases where private parties blocked public roads or polluted public waters, thereby infringing on a right belonging to all citizens. In tandem with the identical provisions under private nuisance law, the appropriate remedies included monetary sanctions, injunctions and various orders. So understood, a consistent regime of public and private enforcement controlled against these wrongs. More recently, however, multiple attempts have been made to remove the limitations of public nuisance law so as to turn it into an all-purpose remedy that pays insufficient attention to the key features of this body of law. In so doing, too many modern cases have taken the position that the term nuisance has no real meaning at all, so that it can be turned to any substantive end of the moment. This position rests on a false if common claim about the necessary indeterminacy of all language.

This philosophical ploy has been invoked repeatedly to expand the conception of public, and indeed private, nuisances beyond their proper connotations. Thus far, this trend has been resisted in cases involving global warming, and, at least for the moment, firearms. But actions of this sort have had undeserved success in dealing with cases involving such important substances as lead paint and opioids. In virtually all these cases, an expanded public nuisance theory is used to sidestep key requirements in relevant areas of law, including reliance in misrepresentation cases and design or manufacturing defects in product liability cases. Stopping these tactics in public nuisance cases is part of a larger battle, for no system of constitutional limitations on government power can survive if language is never clear enough to explain the do’s and don’ts of public life.

Fennell on Risk Control Services

Lee Anne Fennell has posted to SSRN The Gun and the Paperweight:  Risk Control Services and Disservices.  The abstract provides:

Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions—and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability.

Goldberg & Zipursky Are the 2023 Prosser Award Honorees

John Goldberg & Ben Zipursky have been named the 2023 Prosser Award honorees, the first time the Award has been presented to two people.  The Award recognizes their contributions to the field of tort law generally and emphasizes the strength of their 2020 book, Recognizing Wrongs.

From the Harvard Law School website about John Goldberg:

John Goldberg, an expert in tort law, tort theory, and political philosophy, joined the Law School faculty in 2008 and served as a Deputy Dean from 2017 to 2022. Previously he was a faculty member of Vanderbilt Law School, where he was Associate Dean for Research (2006-08). He is co-author of Recognizing Wrongs (Harvard University Press 2020), as well as a leading casebook — Tort Law: Responsibilities and Redress (5th ed. 2021) and The Oxford Introductions to U.S. Law: Torts (2010). He has also published dozens of articles and essays in scholarly journals. Goldberg has taught an array of first-year and upper-level courses, and has received multiple teaching prizes. An Associate Reporter for the American Law Institute’s Fourth Restatement of Property, Goldberg also serves as an advisor to the Third Restatement of Torts. In addition, he is a member of the editorial boards of the Journal of Tort Law and Legal Theory, and in 2009 was Chair of the Torts and Compensation Systems Section of the Association of American Law Schools. After receiving his J.D. in 1991 from New York University School of Law, Goldberg clerked for Judge Jack Weinstein of the Eastern District of New York and for Supreme Court Justice Byron White. He earned his B.A. with high honors from the College of Social Studies, Wesleyan University. He also holds an M. Phil. in Politics from Oxford University and an M.A. in Politics from Princeton University. Before joining the Vanderbilt faculty, he briefly practiced law in Boston.

From the Fordham University School of Law website about Ben Zipursky:

Benjamin C. Zipursky is Professor of Law and James H. Quinn ’49 Chair in Legal Ethics. A member of the Fordham Law School’s faculty since 1995, he has taught as a visitor at Columbia Law School, Harvard Law School, Vanderbilt Law School, and NYU (Philosophy).  In the late 1990s and early 2000s, Professor Zipursky, along with Professor John C.P. Goldberg (Harvard), pioneered Civil Recourse Theory in Tort Theory, and Goldberg and Zipursky are the most widely cited Torts professors in the United States.  Zipursky has published more than one hundred articles, essays, and book chapters in a variety of subjects, including Torts, Jurisprudence, Constitutional Law, Criminal Law, Legal Ethics, and Moral Philosophy. He has lectured extensively in the United States and abroad and is the co-author of a leading casebook, Tort Law: Responsibilities and Redress (5th ed. 2021) (with J. Goldberg, L. Kendrick and A. Sebok) and The Oxford Introductions to U.S. Law: Torts (2010) (with Goldberg), and co-editor of Research Handbook in Private Law Theory (2020) (with H. Dagan).  His most recent book, Recognizing Wrongs (2020) (with J. Goldberg) has been widely acclaimed, and has generated Law and Philosophy symposia on three continents.

Congratulations to John and Ben!