TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, August 31, 2009

Guest Blogger Keith Hylton: "Is Tort Law Economically Efficient?"

A great deal has been written about the economic efficiency of the law,  and of tort law in particular.  There are arguments to be made on both sides, and I will not repeat all of them here.

The argument for efficiency of tort law was first set out explicitly by Richard Posner, though it was suggested one hundred years earlier by Holmes, who referred to the common law as largely determined by "convenience”.  Posner never said precisely how this efficiency property came about.  Paul Rubin offered a mechanism: litigants would tend to challenge inefficient rules more than efficient rules, and as a result the inefficient rules would be overturned more often than would efficient rules.  Rubin’s answer has been challenged by later articles (yes, I’ve taken part in this too).  Now, it appears that the most fashionable thing to say about the topic is that the tort law may be efficient sometimes.

The funny thing I find about this literature is that the simplest argument for tort law efficiency (whether you agree with it or not is another thing) has not been explored in the literature.  I guess that is because it is so simple that it would not look intellectually challenging enough to attract the interest of a peer review journal, and it may also be too simple to be spun out into a long-winded law review paper.  The simplest argument is that judges can look at the case in front of them and figure out the social costs of alternative
rulings.  Once they do that, most are likely to adopt the decision that leads to the lowest social costs.  And a judge doesn’t have to be an expert in economics to figure out which of several alternative decisions will result in the lowest social costs.  Over time, that tends to make tort law, and much of common law, economically efficient.

When I used to teach a class in law and economics in a program for judges at Brookings, I used to offer them this simple hypothesis to see how they would react.  I thought they would find the hypothesis controversial – and judges are quick to let you know if they disagree with you.  I found that they always agreed and treated as it as if it were noncontroversial, even obvious.

I don’t think this was a case of sample selection.  The judges who signed up for the program often expressed great skepticism in economic analysis.  As a group, however, they were far more receptive to the common law efficiency hypothesis than are law teachers.

Keith N. Hylton
Honorable Paul J. Liacos Professor of Law
Boston University

August 31, 2009 in Guest Blogger, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, August 29, 2009

Statute of Repose Win in Fen-Phen Appeal

Over at Drug & Device Law, Jim Beck writes about the Sixth Circuit's decision affirming summary judgment for Wyeth based on Tennessee's statute of repose.


August 29, 2009 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, August 28, 2009

Personal Injury Roundup No. 48 (8/28/09)

We just finished our first full week of classes here at Charleston.  Here's what happened this week in torts:

Reform, Legislation, Policy

  • Health reform debate continues to percolate.  (WaPo, AP, ABC News Political Punch)
  • Representative Henry Waxman (D-CA) takes on Medicare Part D drug program.  (NYT)
  • As required by statute, FDA creates the Tobacco Products Scientific Advisory Committee and is requesting nominations for members.  (FDA Law Blog)


  • Federal judge grants Daubert motion and excludes plaintiff's expert in Bausch & Lomb ReNu MDL. (Drug & Device
  • Another federal judge excludes the plaintiff's causation expert in Viagra MDL.  (Mass Tort Defense, Mass Tort Profs)

New Lawsuits

  • A coach and an aide have filed separate lawsuits over the collapse of the Dallas Cowboys training facility back in May.  (AP, Dallas Morning News)
  • Unmasked blogger plans to sue Google for complying with a court order to reveal her identity in the "Skanks in NYC" defamation suit.  (CNN, ABA Journal, Concurring Op)
  • Two Pennsylvania women sue over pitt bull attacks.  (Sun News)
  • Yaz blood-clot lawsuit filed in Illinois.  (About Lawsuits)
  • Mother-in-law sues comedienne for defamation based on daughter-in-law's jokes, and keeping it all in the family, the lawyer/husband/son is representing his comedienne wife.  (WSJ Law Blog, ABA Journal)

Trials, Settlements and Other Ends

  • Beck & Herrmann collect Zyprexa andAredia-Zometa summary judgment rulings.  (Drug & Device)
  • Federal judge dismisses Trasyol class action.  (Mass Tort Defense)
  • $1.3M verdict in Maryland med-mal case.  (About Lawsuits)


  • Pennsylvania appellate court rejects assumption-of-the-risk defense for golfer struck by ball. (Point of Law)


  •  LA jury awards $13.8 million punitive damages in tobacco case retrial.  (Cal Punitive Damages)


  •  Wall Street Journal article on the Alien Tort Claims Act. (WSJ)


August 28, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, August 27, 2009

Introducing Guest Blogger Keith Hylton

 HyltonMonday's Guest Blogger is Keith Hylton.   Hylton is currently the Honorable Paul J. Liacos Professor of Law at Boston University School of Law.  Hylton joined the BU Law faculty in 1995 after teaching for six years and receiving tenure at Northwestern University School of Law. At BU Law, he teaches courses in antitrust, torts and labor law.

Hylton's articles are too numerous to list here.  His 2008 publications alone include:  "Asbestos and Mass Torts with Fraudulent Victims," in Symposium on Perspectives on Asbestos Litigation, 37 Southwestern Law Review 575 (2008); "Due Process and Punitive Damages: An Economic Approach," in Symposium on Punitive Damages, 2 Charleston Law Review 345 (2008); "The Lawful Acquisition and Exercise of Monopoly Power and Its Implications for the Objectives of Antitrust," with David S. Evans, 4 Competition Policy International 203 (2008); "A Positive Theory of Strict Liability," 4 Review of Law & Economics 153 (2008); "Preemption and Products Liability: A Positive Theory," 16 Supreme Court Economic Review 205 (2008); "A Theory of Wealth and Punitive Damages," in Symposium on 'Crimtorts', 17 Widener Law Journal  (2008); "Unilateral Refusals to Deal and the Antitrust Modernization Commission Report," 53 Antitrust Bulletin 623 (2008); "Weyerhaeuser, Predatory Bidding, and Error Costs," 53 The Antitrust Bulletin 51 (2008); and "When Should a Case Be Dismissed? The Economics of Pleading and Summary Judgment Standards," 16 Supreme Court Economic Review 39 (2008). 

In addition, Hylton serves as co-editor of Competition Policy International and editor of the Social Science Research Network's Torts, Products Liability and Insurance Law Abstracts.

Hylton is also a former chair of the Section on Torts and Compensation Systems of the American Association of Law Schools, a former chair of the Section on Antitrust and Economic Regulation of the American Association of Law Schools, a former director of the American Law and Economics Association, a former secretary of the American Bar Association Labor and Employment Law Section, a former member of the editorial board of the Journal of Legal Education and a current member of the American Law Institute. 


August 27, 2009 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 26, 2009

The Prosser Notebook is Available Online at Berkeley Law Library

Our regular readers know that a member of my first Torts class was kind enough to share with me the Torts notebook of his grandfather, Leroy S. Merrifield.  Mr. Merrifield's first year at the University of Minnesota Law School was 1938-39, and his professor was William Prosser.  At the time, Prosser was working on Prosser on Torts, which was published in 1941.

Leroy S. Merrifield went on to became a law professor, and teach Torts, at George Washington University Law School.  The notebook, then, provides the thoughts of an eminent torts scholar, in the process of creating arguably the most influential hornbook on torts, as channeled by a student who would go on to become a Torts professor. 

Thanks to the efforts of Berkeley Law archivist William Benemann, the notebook is now available online:

My article analyzing the notebook is available here.


August 26, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Porat & Stein on Liability for Future Harm

Ariel Porat (Tel Aviv) & Alex Stein (Cardozo) have posted to SSRN Liability for Future Harm.  Here is the abstract:

This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim’s expected - albeit not yet materialized - harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person’s risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to the victim to decide whether to recover for his or her expected harm, or else wait and see if the risk materializes and recover only if it does. We observe that allowing victims to make this choice might create a collective action problem. Because expedited compensation for a victim’s expected harm erodes the wrongdoer’s ability to compensate future claimants, victims would opt for an early recovery for expected harm even when their substantive remedial preferences are different. We demonstrate, however, that this problem can be resolved.


August 26, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 25, 2009

Torts Opening at Albany

Peter Halewood asked us to post this announcement from Albany Law School:

Tenure-Track Positions
ALBANY LAW SCHOOL invites applications for as many as seven tenure-track positions beginning in the fall of 2010. Appointment will be made at the assistant, associate or full professor level, depending on experience. We are particularly interested in faculty with expertise in one or more of the following areas: family law, intellectual property, trusts and estates, tax, torts, criminal procedure, and business (including contracts, corporations, regulatory compliance, and mergers and acquisitions). Candidates must demonstrate 1) a strong academic background, 2) a capacity for and a commitment to excellence in scholarship, and 3) a capacity for and a commitment to be an effective teacher in the classroom and to spend significant time outside of class working with students.

ALBANY LAW SCHOOL is a small, independent private school in New York State’s capital. Established in 1851, it is the oldest independent law school in the nation and the oldest law school in New York. You can learn more about the school by visiting our website:

Application (electronic preferred) should include cover letter, resume, a list of publications and three references and be sent to Faculty Recruitment Committee c/o Barbara Jordan-Smith, Dean’s Office, Albany Law School, 80 New Scotland Ave., Albany, NY 12208-3494,

Albany Law School is an Equal Opportunity Employer.


August 25, 2009 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

"Flip and Fall"

Jonathan Turley reports that a Chicago woman who fell while walking on the floor near a dolphin tank is suing the zoo for “recklessly and willfully trained and encouraged the dolphins to throw water at the spectators in the stands, making the floor wet and slippery.”


August 25, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, August 24, 2009

Jeffrey O'Connell: Tort Liability as Social Insurance

Though not often thought of this way, tort liability coverage for personal injury can be best seen as social insurance. Such a vantage invites the government to take a firm hand in shaping such coverage rather than leaving it to the market, as is largely done with other forms of private insurance whether life, health, disability or homeowners. Social insurance can be defined as insurance coverage mandated by the government for losses – coverage that is so essential to well-being that society deems it impermissible for the populace to fail to be covered for such losses. Obvious examples are workers’ compensation, medicaid, medicare, along with old age benefits and total disability insurance under social security, etc. All these are mandated by state or federal legislation. Tort liability insurance is also mandated by law – in this case by common law rather than legislation, but law nonetheless. The common law in every state mandates that those liable for causing injury by their substandard conduct (or product) pay their victims’ losses. In the case of auto accidents, liability insurance for misconduct as defined by common law is indeed expressly mandated in one form or another for motorists by legislation in every state. Furthermore, mandatory auto insurance statutes not only protect the assets of those who commit torts but impart rights to those they injure.

Admittedly, tort liability insurance is not similarly legislatively mandated for, say, medical mistakes or malfunctioning products. But as a practical matter, any party – personal or corporate – potentially liable is compelled to purchase liability insurance based on the government’s common law dictate as to the legal consequences of such misconduct. Because tort liability is required by law, it follows that it should be viewed as a form of social insurance. Especially is this so since, on the other side of the coin, all who purchase goods or services are also, of course, required to pay for the tort liability coverage accompanying such purchases.

All this leads to the propriety, indeed necessity, for any government to structure this mandated insurance such that above all it seeks to protect those who suffer real need – namely those in almost any socioeconomic class seriously injured by tortious accidents whose losses outstrip all other applicable coverages.

Continue reading

August 24, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Saturday, August 22, 2009

Family of Flight Attendant on Air France Flight 447 Seeks Suit

The family of a flight attendant killed when AF447 crashed near the coast of Brazil on June 1st is seeking legal action against the airline.  Reuters has the details.


August 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, August 21, 2009

Call for Articles and Essays: Recent Developments in New York Law

Posted by request:

The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to our second annual issue addressing recent developments in New York law to be published in Spring 2010.

This issue will explore a wide range of recent developments in the laws of New York State, including but not limited to areas of criminal law, civil litigation, family law, property law, constitutional law, tax law, bankruptcy law, and municipal law. Authors may also discuss proposed changes to New York law, at the state or local level.

Please submit proposals of no more than 500 words by attachment to by October 1, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should relate to an area of New York State law.  Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by October 8. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.

Completed manuscripts will be due November 24, 2009.


August 21, 2009 | Permalink | Comments (0) | TrackBack (0)

Personal Injury Roundup No. 47 (8/21/09)

It finally feels like summer in western Massachusetts, and yet here we are finishing up 1L orientation, with classes starting next week!  I've got to get to school for the orientation picnic, so it'll be a little briefer than usual...

Reform, Legislation, Policy

  • Mandatory reporting of medical errors?  (TortsProf)
  • Regulation through litigation in the context of chicken houses (Washington Post)
  • An overview of assumption of risk in baseball (Point of Law)
  • Tort issues as part of health care reform (Daily DishFollowupNevada Appeal, many other places -- a sampling here)
  • Indiana teachers now have immunity from suit for some classroom activities (WIBC)

New Lawsuits

  • Eric Turkewitz contemplates various suits arising (or potentially arising) from Michael Jackson's death (NY Personal Injury Law Blog
  • Defamation suit filed, and dropped the same day, against "Skanks of New York" blogger (TG Daily
  • New details in suit against Steelers QB Ben Roethlisberger (KDKA)

Trials, Settlements and Other Ends

  • Lilly to pay $22.5M to settle West Virginia's marketing claims regarding Zyprexa (CNN)


  • $6M in trial over misdiagnosis of infant's infection (AboutLawsuits)


  • AkinMears (mesothelioma lawyers) among remaining advertisers on Glenn Beck (Gawker
  • Fraud in pesticide lawsuits (WSJ
  • TortsProf guest blogger Monday starts, well, Monday with Jeffrey O'Connell (UVa) (TortsProf)


August 21, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, August 20, 2009

Monday's Guest Blogger: Jeffrey O'Connell


Our first guest blogger is the University of Virginia's Jeffrey O'Connell, co-author of the principal work that proposed no-fault insurance.

After O'Connell graduated from Harvard Law School, he was a trial lawyer in Boston with the firm of Hale & Dorr. He began teaching at Virginia in 1980 after 16 years at the University of Illinois. He also has taught at the University of Iowa and has been a visiting professor at Northwestern, the University of Michigan, Southern Methodist University, the University of Texas at Austin, the University of Washington, and Oxford and Cambridge universities in England. He was the recipient of Guggenheim fellowships in 1973 and 1979. In 1989 he was the Thomas Jefferson Visiting Fellow at Downing College, Cambridge University and, in 1991, the John Marshall Harlan Visiting Distinguished Professor at New York Law School. In 1992 he received the Robert B. McKay Award for Tort and Insurance Scholarship from the American Bar Association.  In 1999, The American Lawyer listed O'Connell as likely to be viewed as one of "the Lawyers of the Century" based on his work reforming tort law.

O'Connell has served on the board of directors of Consumers Union, the Educational Advisory Board of the John Simon Guggenheim Memorial Foundation, and the Medical and Safety Committee of the NCAA.
Since 1966 he has written or co-written 12 books dealing with accident law, published dozens of articles on tort and insurance law, and lectured extensively throughout the United States and the world.

On a personal note, Jeffrey was my Torts professor and I served as his research assistant.  Although Torts professors are familiar with his voluminous scholarship (in a recent book review, future guest blogger Adam Scales called him "indefatigable"), I can attest that he's a virtuoso classroom teacher as well.  His post is entitled "Tort Liability as Social Insurance," and he attaches a 35-page paper to expand on the theme (indefatigable indeed!).


August 20, 2009 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 19, 2009

Is "Gluten-Free Beer" Really "Beer"?

As USA Today Reports, on Monday, the FDA began regulating the world of "gluten free beers."  These beverages are not made from the malted barley of the traditional sudsy brew, but from alternative ingredients such as malted sorghum or rice. 

FDA Law Blog has more. 


August 19, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 18, 2009

Californians Sue Facebook Over Privacy Issues

According to the Associated Press, five Californians have filed suit against Facebook alleging privacy law violations.  


August 18, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, August 17, 2009

Products Liability Prof Blog Seeks Products Liability Prof Bloggers

Head there for details.  We certainly like being part of the network and look forward to seeing who takes over that blog.


August 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Announcing Guest Blogger Monday!

We are delighted to announce a new feature at TortsProf Blog:  Guest Blogger Monday.  A distinguished line-up of Torts professors will be visiting on Mondays and writing about their recent scholarship, teaching ideas, and other torts-related topics. 

Our fall schedule includes Jonathan Cardi (Kentucky), Martha Chamallas (Ohio State), John Goldberg (Harvard), Keith Hylton (Boston), Tim Lytton (Albany), Jeffrey O'Connell (Virginia), Mike Rustad (Suffolk), Adam Scales (Washington & Lee), Tony Sebok (Cardozo), Jason Solomon (Georgia), Frank Vandall (Emory), and Ben Zipursky (Fordham).  In addition, Ken Abraham (Virginia), Mike Green (Wake Forest), David Owen (South Carolina), and Jenny Wriggins (Maine) will guest in the spring. 

We hope you enjoy this new feature.

--Sheila and Chris

August 17, 2009 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Sunday, August 16, 2009

Mandatory National Reporting of Medical Errors?

The "Dead by Mistake" series reported by Sheila here  is affecting policy debates.  Rep. Jim McDermott, a Seattle Democrat heavily involved in health reform legislation, believes mandatory national reporting of medical errors should be a top priority in Congress.  The Houston Chronicle has the story.


August 16, 2009 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, August 14, 2009

Personal Injury Roundup No. 46 (8/14/09)

Most of us are gearing up for classes next week.  I hope you enjoyed your last week of summer.

Reform, Legislation, Policy

New Lawsuits

  • WV:  An asbestos defendant argues it was forced to follow the directives of the U.S. Navy when it manufactured products for a ship.  (LegalNewsline
  • MD:  The family of a man who died after transplant surgery at the University of Maryland has sued, alleging a staffer drained out all of the decedent's blood.  (
  • IL:  Woman sues ex-boyfriend for posting nude photos of her (ABA Journal)

Trials, Settlements and Other Ends



  • Franklin County Circuit Judge William Alexander will preside over two trials against the state stemming from the Virginia Tech shootings.  (VLW Blog)
  • Dog Bite Case Website (Day on Torts)


August 14, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Survivors' "Hold Your Wee for a Wii" Suit Settles; Wrongful Death Case to Start 9/8

So reports local station KCRA.  Details are, as usual, confidential.  Prior reports are linked to from here.


August 14, 2009 | Permalink | Comments (0) | TrackBack (0)