TortsProf Blog

Judge Jack Weinstein 1921-2021

With sadness I note the passing of Judge Jack Weinstein, a legendary federal judge and the most-recent honoree of the Prosser Award.  The Daily News has the notice.

Penney on Chilling Effects

Jon Penney has posted to SSRN Understanding Chilling Effects.  The abstract provides:

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding.

I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.

Miller & Oberdiek's Introduction to Civil Wrongs and Justice in Private Law

Paul Miller and John Oberdiek have posted Introduction to Civil Wrongs and Justice in Private Law.  The abstract provides:

This introduction to Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds., Oxford University Press, 2020) provides a thematic overview of the significance of civil wrongs to debate over conceptual and normative questions in private law theory, as well as a discussion of the contributions to the volume. The volume includes chapters by the editors and María Guadalupe Martinez Alles, Ahson Azmat, Nicolas Cornell, Christopher Essert, Lee Fennell, Kimberly Kessler Ferzan, Andrew Gold, John Goldberg, Ori Herstein, Larissa Katz, Gregory Keating, Liam Murphy, David Owens, James Penner, Jeffrey Pojanowski, Matthew Shapiro, Adam Slavny, Stephen Smith, Findlay Stark, Victor Tadros, and Benjamin Zipursky.

Baker, Avraham & Sebok on the MDL Revolution and Consumer Legal Financing

Lynn Baker, Ronen Avraham & Tony Sebok have posted to SSRN The MDL Revolution and Consumer Legal Financing.  The abstract provides:

Third-party consumer legal funding, where financial companies advance money on a nonrecourse basis to assist individual plaintiffs with living expenses, is an increasingly popular and controversial part of American litigation. And consumers with mass tort claims pending in Multi-District Litigations (MDLs) constitute the fastest growing sector of those seeking assistance from this billion-dollar funding industry. Policy makers, mass tort plaintiffs’ lawyers, and scholars have increasingly raised concerns about exorbitant interest rates and have called for regulations to protect vulnerable consumers from “predatory lending.” To date, however, the policy debate has largely relied on anecdotes and speculation because funders have not been forthcoming with facts. This Article begins to fill that important informational void.

We were given unique, unrestricted access to the complete archive of 225,293 requests for funding from 2001 through 2016 from one of the largest consumer litigation financing firms in the U.S., and we are the first to explore the anatomy of litigant finance in mass tort cases. We find that the Funder systematically offers mass tort claimants larger advances and more favorable terms along multiple dimensions than it does for consumers with motor vehicle accident claims. Our data analyses involving both categories of claimants offer reassurance about numerous asserted abuses in the funding industry and lead us to recommend that restrictions not be imposed on the availability or cost to consumers of this funding. Rather, we propose that existing market competition be enhanced by the adoption of laws that would ensure greater simplicity, transparency, and consistency in the pre-funding disclosures made to consumers and by removing the prohibitions that most states’ Rules of Professional Responsibility currently impose on lawyers’ ability to provide financial assistance to their clients.

Baker & Silver Defend Private Claims Resolution Facilities

Lynn Baker & Charles Silver have posted to SSRN In Defense of Private Claims Resolution Facilities.  The abstract provides:

This contribution to a Symposium in honor of Francis McGovern's life and accomplishments is a natural occasion on which to assess some of the normative arguments for and against private claims resolution facilities (CRFs). He was one of the most prominent figures in the world of multi-claimant litigation and settlements. We were privileged to work alongside him in various matters and to consider him a friend. We miss him dearly.

The Article begins, in Part II, by describing three core models of private CRFs that are commonly observed in mass tort settings, often in combination: individual settlements by in-house counsel, victim compensation funds, and group settlements (inventory and global). Our view is that variations in the design of CRFs often have functional explanations as responses to the desires and needs of the parties. When the parties differ in their preferred arrangements, the design of a CRF will inevitably reflect inequalities in bargaining power between the parties. That is expected, as each CRF is the product of compromise. With regard to each of the three core models, this second Part will discuss when and why the defendant might prefer it, then go on to discuss its benefits and costs to the plaintiffs (and plaintiffs’ counsel). Part III then addresses two criticisms that scholars have levied against one or more of these types of private CRFs: that private CRFs deny claimants corrective justice, and that judicial supervision is needed to protect claimants’ autonomy and to police agency failures on the plaintiffs’ side. We argue that the first criticism is mistaken because it wrongly contends that corrective justice requires the use of courts, and that the second is erroneous because market forces should encourage plaintiffs’ attorneys to protect claimants’ autonomy as fully as claimants want and tend to reduce agency costs to an efficient level in multi-claimant settlements no less than in single-client matters. The Article concludes in Part IV with some final thoughts on the limited potential of judicial review to improve private CRFs.

Judge Calabresi Lauded as He Teaches His Final Torts Class

Judge Guido Calabresi, who was instrumental in creating the law and economics movement in tort scholarship, has taught his final Torts class at Yale.  Calabresi continued teaching Torts even after moving to the bench; he taught Torts for six decades.  More than 160 of his former students came to celebrate him on his final day.  Yale has the story.  Thanks to former TortsProf blogger Sheila Scheuerman for the tip.

Kent on How History Can Inform Current Bivens and Qualified Immunity Debates

Andrew Kent has posted to SSRN Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation Against Federal Officers.  The abstract provides:

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially-created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to the institution which should weigh the costs and benefits of allowing constitutional tort suits against federal officers for damages, especially in areas like national security or foreign affairs in which the political branches might be thought to have constitutional primacy. Scholarly writing and litigation briefs critical of the Court’s treatment of Bivens now frequently focus on damages suits under common law or general law against American government officers in the early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writing about officer damages suits claims that courts in the early republic: acted independently of Congress to impose significant restraints on federal officers; protected persons from federal overreach no matter their citizenship and territorial location, and even during wartime; and refused to grant anything like qualified immunity that might have softened the blow of strict personal liability and promoted government efficiency. Common law damages suits against federal officers are said to have remained routinely available until after Bivens was decided when, in the 1988 Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of their employment.

Through case studies of litigation against federal officers involved in customs enforcement and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show that there was substantial political branch endorsement of personal damages liability of federal officers in the early republic, but as material and legal conditions changed over the nineteenth century, Congress moved away from officer suits as a means of ensuring accountability of federal officers and compensation of persons harmed by official illegality. Further, in high stakes contexts for the young republic—wartime prize seizures and peacetime anti-piracy seizures—the Supreme Court did in fact apply immunity doctrines to protect officers and incentivize vigor. Finally, alien enemy disability to sue in U.S. courts during wartime must be acknowledged as a significant limit the protective reach of the officer damages suit. I conclude with thoughts about the implications of this somewhat revised view of the history of damages litigation against federal officers.

AALS: Spotlight on the Torts & Compensation Systems Section

The latest issue of AALS News has a spotlight on the Torts Section, an interview with current Chair Mary Davis and Chair-Elect Tim Lytton.

Chamallas Named Distinguished University Professor at Ohio State

Martha Chamallas has been named one of two 2021 Distinguished University Professors, the highest faculty award at The Ohio State University.  Congratulations to Martha on this well-deserved honor!  The OSU announcement is here.

R3: Intentional Torts to Persons Approved by ALI Membership

Today at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts:  Intentional Torts to Persons.  Reporters Ken Simons and Jonathan Cardi shepherded the project to completion; Ellen Pryor served as a Reporter from 2014-2015.  The ALI's press release is here.

JOTWELL Torts: Steel on Benbaji on Kant on Welfare and Freedom

At JOTWELL Torts, Sandy Steel reviews Yitzhak Benbaji's Welfare and Freedom:  Towards a Semi-Kantian Theory of Private Law.

Peters on the Next Med Mal Insurance Crisis

Philip Peters has posted to SSRN On the Cusp of the Next Medical Malpractice Insurance Crisis.  The abstract provides:

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.

How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.

The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one.

The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform.

This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be.

Goldberg on Gardner on Personal Life and Private Law

John Goldberg has posted to SSRN Taking Responsibility Personally:  On John Gardner's From Personal Life to Private Law.  He presented at the AALS Torts panel in January and the piece is forthcoming in the Journal of Tort Law.  The abstract provides:

This essay, written for a panel honoring the late John Gardner, explores a tension in his book’s highly engaging and illuminating account of the relationship between “personal life” and “private law.” For the most part, the book sets out to explain how private law’s doctrines help us to act as we ought to act by reproducing, with greater specificity, the rules and norms of morality. At crucial moments, however, it suggests that private law serves its function by departing dramatically from morality. In particular, it argues that private law’s conferral of broad discretion on victims of legal wrongs to decide whether and how to pursue claims against wrongdoers has no moral counterpart. I suggest, to the contrary, that personal life does contain analogues to private law’s powers and liabilities. I further maintain that Gardner’s reluctance to recognize them reflects a problematic understanding of interpersonal responsibility as monadic answerability to reason rather than dyadic answerability to another.

 

Sharkey on Public Nuisance

Cathy Sharkey has posted to SSRN Public Nuisance as Modern Business Tort:  A New Unified Framework for Liability for Economic Harms.  The abstract provides:

This Article focuses on public nuisance’s innovative use as a means of recovering purely financial losses between non-contracting parties (i.e., “strangers”), in particular where the economic loss rule potentially bars recovery. The Article proposes a new approach to reconciling the torts of negligence and public nuisance, centered on the “channeling” or enforcement rationale: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the social costs of its activities. Where the prospect of physical bodily injuries and property damage is attenuated, this cost-internalization function is especially important to deter excessively risky conduct likely to lead to significant financial losses. Moreover, the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that the societal harms of the 21st century involve risky conduct leading to purely financial harms. Where there are diffuse, widespread harms raising concomitant concerns of under- and over-deterrence, a new “channeling” paradigm is necessary to guide courts in fashioning the metes and bounds of public nuisance as the quintessentially modern business tort of the 21st century.

Genomic Analysis in Tort Cases

Kirk Hartley, Susan Brice, and Mark Zellmer are hosting a virtual conference, "Genomic Analysis in Tort Cases."  The conference runs most of the day on Wednesday, May 26, is free, and you can register here: https://www.eventbrite.com/e/genomic-analysis-in-tort-cases-virtual-tickets-152523216045.  An agenda is available here:  Download Perrin Conferences_Genomics Analysis Final_04 (1)   The gist is below:

• Panel 1 will address the use of genomics in product liability and/or premises cases involving exposures to toxicants, including asbestos, benzene and radiation. 
• Panel 2 will address cases involving issues such as birth defects, medical malpractice and individual variability in the metabolism of drugs and chemicals. 
• Panel 3 will explain the big picture of the processes and methods involved in using genomic analysis in actual cases. 
• Panel 4 will present example of "environmental cases" in which genomic analyses have been used to provide objective evidence to trace sources of exposure and dispersal, and will briefly touch on uses of genomic analyses for cancer cluster cases. 
• Panel 5 will focus on communicating genomic issues to juries and judges; among other things, jury consulting experts will provide some thoughts on communicating the messages. 
• Panel 6 will focus on use of genomics in "high value" settings, including a further focus on cancer cluster cases and medical monitoring cases, with some discussion of some of the draft statutes that are pending regarding PFAS and other chemicals. 
• An extended Q & A session will close out the day. 

Bogle on Private Law Theory and the Past

Stephen James Bogle has posted to SSRN Private Law Theory and the Past.  The abstract provides:

Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorizing by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.

Justice Thomas Would Hear Case to Overturn Feres Doctrine

Justice Thomas issued a dissent from cert denial in which he made it clear he believes Feres was a policy judgment by the Court and not based on the Federal Tort Claims Act.  He stated succinctly, "Feres was wrongly decided."  ABA Journal has the story.

WalletHub Covers Auto Bodily Injury Liability Insurance

Here.

Avraham & Yuracko's WaPo Op-ed on Race- and Sex-Based Damage Calculations

Ronen Avraham & Kimberly Yuracko published an important op-ed in The Washington Post late last week entitled "The use of race- and sex-based data to calculate damages is a stain on our legal system."  Steve Lubet has more at The Faculty Lounge.  In addition to the contribution of Judge Jack Weinstein, mentioned in the op-ed, Martha Chamallas and Jenny Wriggins have done significant work in this area.  

Rabin on Sugarman

Bob Rabin has posted to SSRN Stephen Sugarman and the World of Responsibility for Injurious Conduct.  This piece is from a festschrift for Steve put on by the California Law Review.  Bob also spoke yesterday at a moving celebration in honor of Steve's career.  The abstract provides:

For a festschrift celebrating the scholarship of Professor Stephen Sugarman, I was asked to discuss his contributions to the area of accident law. Professor Sugarman’s published work runs across the spectrum of responsibility for injurer-based harm, embracing intentional misconduct, fault-based recovery, strict liability, no-fault compensation schemes, and social insurance. In addition to this wide-ranging and cogent analysis of approaches to liability and compensation, Sugarman has complemented his system-based work with perspectives from the vantage points of history, public policy formation, and jurisprudential assessment of tort and tort alternatives.

My coverage unfolds as follows. I begin with Sugarman’s landmark initial excursion into the world of tort law in which he advocated the replacement of tort with a social insurance scheme. Next, I discuss his more focused tort replacement studies in the world of no-fault liability. Then, I examine his critiques of tort doctrine and his interdisciplinary approaches to the system, which include historical and jurisprudential perspectives. I conclude on a personal note.