TortsProf Blog

Martha Chamallas is the 2022 William Prosser Award Honoree

I am delighted to announce that the 2022 Prosser Award honoree is Martha Chamallas.  Professor Chamallas, the Robert J. Lynn Chair in Law at The Ohio State University, assumed emeritus status this year; she was honored with the 2021 Distinguished University Professor Award.  One of her Prosser Award nominators stated that she has been "a major influence in encouraging a greater consideration of the ways in which tort law impacts minorities and women."  From her Ohio State biography:

Professor Martha Chamallas is a leading scholar in a number of fields, including torts, employment discrimination law, and legal issues affecting women. She is the author of two books and more than 40 articles and essays in law journals such as the Michigan Law Review, the University of Pennsylvania Law Review, the University of Chicago Law Review, UCLA Law Review and the Southern California Law Review. She is a member of the American Law Institute, Torts Consultative Group and has participated on Gender and Race Bias Task Forces for the states of Iowa and Pennsylvania.

Following graduation from law school, Professor Chamallas clerked for the Honorable Charles Clark of the U.S. Court of Appeals for the Fifth Circuit and served as an attorney for the U.S. Department of Labor, Office of the Solicitor, Civil Rights Division.

Prior to joining the Moritz College of Law in 2002, Professor Chamallas served on the faculties of the University of Pittsburgh School of Law, the Louisiana State University Law Center, and the University of Iowa College of Law. She has held visiting positions at Harvard Law School, the Washington University School of Law, Richmond School of Law, the University of Ghent, and Suffolk University School of Law. She also served as the chair of the Women’s Studies Program at the University of Iowa.

At the Moritz College of Law, she teaches Torts, Employment Discrimination, and Gender and the Law. Professor Chamallas was the recipient of the Distinguished Lecturer Award in 2006 and the University Distinguished Scholar Award in 2013.

Billauer on Liability for Brain-to-Computer Interface

Barbara Pfeffer Billauer has posted to SSRN The Bionic Plaintiff and the Cyborg Defendant:  Liability in the Age of Brain-to-Computer Interface.  The abstract provides:

Human-enhancing devices via machine interface are rapidly approaching mass marketability. These devices include, for example, exoskeletons that allow functionality for those neurologically impaired are powered hydraulically, mechanically, or electrically. Newer devices, recently approved by the FDA, power such devices via brain waves transmuted into electrical signals. This Brain to Computer Interface (BCI) technology has been utilized in advanced designs, such as controlling a stylus or robotic arms, and more mundane contraptions, such as wheelchairs, via brain waves signaling intention. All are governed under Class II FDA designation for devices posing low and moderate risks.

Of concern are studies that have recorded the existence of a readiness potential that precedes brainwaves involved in conscious movement, recordable shortly before intent to move -- or even awareness of such intent -- is acknowledged by the user. This raises the question regarding whether BCI technology can mobilize devices based on unconscious or subconscious thoughts – creating the possibility of “unintended” harm, calling into question the legal definition of “intent” needed to prove assault and battery. The BCI devices also render it nearly impossible to divine relative contribution of fault in the event of an accident: was it due to the intent (conscious or not) of the user- or product malfunction, the subject, perhaps, of a product liability suit against the manufacturer? It appears the technology is poised to throw the tort system into disarray.

Here I postulate that FDA Class III regulation is warranted for BCI devices. This would assure greater oversight and protection – not just for the user- but for bystanders and the public at large for devices allowing remote movements engineered by pure thought. I further suggest that enhanced testing is warranted – and that failure to pursue such testing might render the manufacturer liable in tort breaching pre-emption bars, thereby furnishing double protection: deterrence via lawsuit, plus FDA oversight. This double protection, I suggest, is warranted in such potentially dangerous situations. Finally, I highlight the difficulties in assessing fault and recklessness in law when actions are committed without full awareness.

Russell on Comparative Auto Accidents

Thomas Russell has posted to SSRN Car Crashes, Personal Injury Litigation, and Frivolous Defenses in Alberta and Colorado.  The abstract provides:

This Article is a comparative empirical study of car crash litigation in Alberta, Canada and Colorado, USA.

The first part of the Article compares the rates of car crash injuries and litigation between Alberta and Colorado. The Article assembles data for what sociolegal scholars typically call the dispute pyramid, but I argued that a salmon run is a better metaphor for the winnowing of injuries through lumping, claiming, settling, and litigating.

The Article shows that Albertans have a safer driving culture than do Coloradans. Surprisingly, the data also show that Albertans file car crash lawsuits much more frequently than Coloradans, notwithstanding the American reputation for litigiousness. I suggest that something within the settlement of property damage only cases likely accounts for the difference.

The second part of the article presents a summary of empirical data and argument concerning the pleading of frivolous defenses by American insurance defense lawyers. I compare the pleading of these defenses to the Alberta Rules of Court.

I am especially interested in hearing from Alberta and Canadian lawyers regarding differences between the Canadian tort system and that of the United States.

Allen on the Emotional Woman Standard

Alena Allen has posted to SSRN The Emotional Woman.  The abstract provides:

The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.

Rave and McGovern on a Hub-and-Spoke Model of Multidistrict Litigation

Theodore Rave has posted his article with the late Francis McGovern, A Hub-and-Spoke Model of Multidistrict Litigation, on SSRN.  The abstract provides:

Consolidating mass tort cases in federal multidistrict litigation (MDL) has been a successful strategy for efficiently managing, facilitating the maturation of, and resolving nationwide disputes. This has been particularly true for cases involving single-event mass disasters or defective products sold by a single defendant, even when thousands of plaintiffs are involved. But in "mega mass torts"--those involving multiple defendants and multiple products and activities over an extended period of time (e.g., asbestos, silicone gel breast implants, opioids)--comprehensive resolution in an MDL has proven elusive. In these mega mass torts, the MDL judge can become a bottleneck, as there are only so many motions, discovery disputes, and bellwether trials a single judge can decide. But while these types of mega mass torts may be too varied for a single simultaneous trial or global settlement, eschewing aggregation would result in massive losses of efficiency and consistency.

Here we propose a "hub-and-spoke" model of MDL case management for these sorts of mega mass torts that takes full advantage of the nationwide scope of the federal judiciary to relieve pressure at the bottleneck. The idea is to initially consolidate all related cases in a single MDL (the hub) for common discovery and pretrial management. In the course of managing the hub MDL, the hub MDL judge will identify sensible groupings of parties and claims to recommend to the Judicial Panel on Multidistrict Litigation for strategic disaggregation as test cases. Those test cases will then be remanded to other federal judges (the spokes) to allow the litigation to move forward through further pretrial development, bellwether trials, and potential piecemeal settlements. The spoke cases can proceed in parallel with the cases still in the hub MDL to speed the process of maturation, much in the same way that a computer can handle complex tasks faster through parallel processing than through serial processing. The hub MDL judge may also retain jurisdiction over a common issue or party to provide a ready forum for a potential global resolution should the information generated in the spokes make one possible.

In this article, we discuss the problem of bottlenecks in mega mass tort litigation. We then describe the hub-and-spoke model, the advantages it offers over other approaches to mega mass tort litigation, and the ways in which it can increase the chances of finality in mega mass tort cases through a variety of settlement structures. Finally, we analyze an example of the hub-and-spoke model in action in the ongoing National Prescription Opiates MDL.

NJ Tarasoff Case: Coleman v. Martinez

The New Jersey Supreme Court upheld the Appellate Division's overturn of a grant of summary judgment; the majority held that a licensed social worker owed a common law duty to the victim of a schizophrenic patient:

In sum, Martinez treated a patient convicted of two violent assaults at a
dire time in her life and proceeded to watch her decompensate. Further, once
that decompensation became a barrier to T.E.’s reunification with her children,
Martinez identified Coleman as an antagonist and personification of that
barrier. “It does not seem highly extraordinary” that those actions would result
in a violent assault against Coleman.

The opinion is here:  Download Coleman.martinez.nj.2021  (Thanks to George Conk for the tip.)

Feminist Torts Judgments: Pruitt's Commentary on Boyles v. Kerr

Lisa Pruitt has posted to SSRN Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments:  Rewritten Torts Opinions.  The abstract provides:

This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

Hofstra Seeks Torts Professor

The Maurice A. Deane School of Law at Hofstra University seeks to fill one or more tenure-track positions.  We will consider all subject areas but primarily seek candidates with research and teaching interests in Torts, Property, and other first year courses such as Contracts, Criminal Law, and Civil Procedure. The Law School is particularly interested in faculty members who also have research and teaching interests in Environmental Law, Bankruptcy and/or Commercial Law. All candidates must have a strong commitment to serious scholarship. We are particularly interested in candidates who will enhance the diversity of our faculty.

As a leading national and regional educational institution, Hofstra Law is a distinguished center of legal scholarship in the service of justice and is committed to serving its local communities (which include Americans from a wide range of ethnic backgrounds and range from extraordinary affluence to entrenched suburban poverty), participating in the national scholarly dialogue, and educating attorneys for the local bar as well as the broader national  community. Hofstra Law recently completed a successful multiyear capital campaign and the University has recently opened new schools of medicine, public health and engineering. 

Candidates should send a cover letter and resume, including a description of areas of interest, and copies of representative works to Professor Linda Galler, Chair of the Faculty Appointments Committee, LawSchoolFacultyJobs@hofstra.edu.

Hofstra University is an equal opportunity employer, committed to fostering diversity in its faculty, administrative staff and student body, and encourages applications from the entire spectrum of a diverse community.

U.S. Air Force Held Primarily Responsible for 2017 Church Shooting

In 2017, a former serviceman killed 26 people and injured over 20 more when he opened fire in a Baptist church in Sutherland Springs, Texas.  A federal judge has ruled the U.S. Air Force was 60% responsible based on its failure to submit the shooter's criminal history to the FBI database, allowing him to purchase the weapon he used in the attack.

"The argument in this case was that the government had in its possession, particularly the Air Force, had in its possession information about a conviction for an offense of a service member which they failed to report — carelessly — to federal government authorities so it could be included in the National Crime Information Center database that then could be accessible for background checks at retail," [Timothy] Lytton said. "And that carelessness on the government’s part made them liable for the resulting harms, which were of course the mass shooting.”

Unlike other "high-profile" mass shootings, the Sutherland Springs lawsuit didn't involve a venue that was negligent or a gun store that sold a firearm illegally.

"We don’t have a lot of mass shootings where the problem is that a person who’s currently enlisted in the armed services had a conviction that wasn’t properly reported by the service to the federal government, that’s a sort of unusual fact pattern so I can’t really identify a trend of liability against the federal government in mass shootings," he said.

Texas Public Radio has the story.

Lytton on Illegal Firearms as Public Nuisance

Tim Lytton has an article at The Conversation regarding New York's new law defining illegal firearms as a public nuisance.  He anticipates a Second Amendment challenge to the law, but even if it survives:

The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.

Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.

Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.

Grey on Immunizing Nursing Homes

Betsy Grey has posted Against Immunizing Nursing  Homes to SSRN.  The abstract provides:

Nursing homes and other long-term care facilities account for approximately one third of the over 500,000 Covid-19 deaths in the United States. Facing liability from that widespread harm, the facilities have sought immunity protection from tort liability. In particular, they have sought protection under the federal Public Readiness and Emergency Preparedness (PREP) Act, which is designed to extend immunity from liability claims arising from various Covid-19 countermeasures developed and used during the pandemic.

Importantly for this essay, the lawsuits filed against nursing homes have centered on their failure to take mitigation measures, rather than on harm from their affirmative use of mitigation measures. Initially, courts held that PREP Act immunity does not apply to these failure-to-act claims. In the waning days of the Trump Administration, however, HHS issued an opinion that (together with other HHS statements) interprets the statute otherwise, broadening immunity even to cover the failure to take mitigation measures. That interpretation has been followed by at least one federal district court. This essay questions the wisdom of HHS’s opinion. It argues that it misreads the words and purpose of the PREP Act’s immunity provisions, and undermines accountability of the nursing home industry, creates the wrong incentives for the industry, and may leave victims without any compensatory remedy. This issue should reach appellate courts soon. If the interpretation continues to be followed by the courts, then the Biden Administration should rescind the opinion so that tort law may continue to protect one of society’s most vulnerable populations.

Nestle v. Doe

The USSC just issued its most-recent opinion on the Alien Tort Statute in Nestle v. Doe.  At JD Supra, Dechert's Andrew Boutros & Jay Schleppenbach review the decision.  The highlights:

• In its just-issued opinion in Nestle USA, Inc. v. Doe, No. 19-416, slip op. (2021), the Supreme Court reaffirmed its holding from Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108 (2013), that the Alien Tort Statute does not apply extraterritorially.

• Allegations that “financing decisions” that took place in the United States related to Ivory Coast cocoa farms that allegedly used child labor were insufficient to make plaintiffs claims domestic; these were just allegations of “general corporate activity” not sufficiently related to the actual wrongdoing alleged.
• The Court did not resolve the question on which it originally granted certiorari, which was whether Alien Tort Statute exempts corporations from suit altogether.

Gold Reviews Smith on the Structure of Remedial Law

Andrew Gold has posted to SSRN his review of Stephen Smith's Rights, Wrongs, and Injustices:  The Structure of Remedial Law.  The abstract provides:

This paper is a draft review of Stephen Smith’s recent book -- Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019). The book offers a groundbreaking and deeply insightful theory of the remedies in private law. On Smith’s account, remedies are judicial rulings, and they are issued because they provide people with new reasons for action. This review will focus on a jurisprudential puzzle that lies at the center of the book. Rights, Wrongs, and Injustices provides an original account of the authority in court orders. I will suggest that the book is right that the authority in court orders is distinctive, but wrong in its analysis of what grounds that authority. Considering this question, however, sheds significant new light on the law of remedies and on private law as a whole.

Kinzler's Highway Robbery

Peter Kinzler has just published Highway Robbery about the battle over no-fault automobile insurance in Congress.  The blurb provides:

In Highway Robbery Peter Kinzler delivers a fast-paced behind-the-scenes account of two federal legislative efforts twenty years apart—one from the political left and one from the right—to reform America’s auto insurance system to make it fairer and more affordable. He explains how the legislation was designed to achieve those objectives and describes the political challenge of trying to overcome the entrenched special interest opposition of those who stood to lose billions—trial lawyers and insurers—if the new no-fault system were adopted.

Highway Robbery provides readers with both a primer on how fault and liability auto insurance, no-fault, and no-fault choice insurance policies work and who benefits most from which system. Peter Kinzler, with years of experience as a congressional staffer and in the private sector, is the perfect guide through these important policy and political fights, enlivened with revealing firsthand sketches of the legislators, staffers, academics, and lobbyists who played major roles in these attempts as well as their interplay with each other. Drawing upon his decades of engagement with the issues Kinzler shows how thoughtful and skilled members of Congress, good staff, and thorough academic research can lay the groundwork for important reform legislation; in doing so he provides a model for restoring Congress’s effectiveness, whenever it chooses to resume exercising its constitutional authority as the legislative branch of government.

Highway Robbery details how the trial bar used the levers of political power first to undermine state no-fault laws and then to use the weaknesses they had implemented in the laws to undermine passage of federal legislation. It also describes the surprising alliance in opposition between the trial bar and famed consumer advocate Ralph Nader. No-fault continues to hold the promise of better compensation and dramatic premium reductions, with the largest savings available to those who need them most—low- and moderate-income drivers. The most likely scenario for further federal consideration of auto insurance reform would be in the context of congressional action on universal health insurance.

The book is available at Amazon on Wednesday and can be pre-ordered here.

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.