TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, September 30, 2010

Teaching Torts with Sports

Adam Epstein (Central Michigan College of Business) has posted to SSRN Teaching Torts with Sports.  The abstract provides:

The purpose of this paper is to offer a pedagogical road map for an alternative way to engage students when arriving at the torts portion of the business law or legal environment course. It is designed to encourage utilizing sports cases and sport-related videos when teaching torts which can be effective and energizing. My research demonstrates that the prominence of sports related tort cases and examples are much more apparent in the negligence and intentional tort categories than in products liability or strict liability. More specifically, an effective way to relate the concept of negligence in sports is in the context of flying objects such as foul balls, bats, and hockey pucks. Incorporating intentional torts and sports usually begins with hits after the play, a pitcher intentionally hitting the batter, and the incidents of violence involving participants, fans, referees, coaches and parents. One of the best examples of products liability is the safety debate between using wooden baseball bats in professional baseball and the metal or aluminum bats in college baseball. Strict liability involving ultra-hazardous activities has its place for discussion in sports torts, but the breadth of litigation on the subject is clearly the least common of the four major tort categories rendering it virtually non-existent. Instructors are given hints as to how to engage students with sports torts regardless of their educational generation. Contemporary and classic cases are provided as examples.


September 30, 2010 in Sports, Teaching Torts | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 29, 2010

Free, Downloadable Torts Text

Eric Johnson (North Dakota) has posted to SSRN a full Torts text.  Johnson blogged about the project at Prawfs.


September 29, 2010 in Books | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 28, 2010

NY Rejects Defamation and Negligent Entrustment Claims in Cyberbullying Case

Stephen Kramarksy has an article in the New York Law Journal analyzing the July decision by a New York state court judge holding cyberbullying was not an actionable tort under New York law. 


September 28, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Justice Scalia Grants Stay of LA Tobacco Ruling

In his role as Circuit Justice for the Fifth Circuit, Justice Scalia granted a stay of execution on a $241.5 million judgment to fund a smoking cessation program for the benefit of class members in Scott v. Philip Morris, a class action involving Louisiana residents.   In a five page opinion, Justice Scalia found it likely that the Court would grant certiorari and that the case raises important questions about due process limits on class actions.   Lyle Denniston at SCOTUS Blog has commentary.


September 27, 2010 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Friday, September 24, 2010

Personal Injury Roundup No. 81 (9/24/10)

New Suits

  • Negligence suit filed against 2 CA health care facilities in birth of brain-damaged child (PR Web)
  • Woman sues airline over emergency landing (Overlawyered)


  • Idaho SC affirms dismissal of wrongful death action against school over a student's murder that occurred off the school's property and outside of school hours.  (LegalNewsline)
  • Connecticut SC reverses slip-and-fall verdict; "mode of operation" rule not applicable.  (LegalNewsline)

Reform, Legislation, Policy

  • NJ:  Bill would prohibit insurers from raising premiums for malpractice liability insurance unless a physician is found liable for a med mal claim.  (Holmdel Independent)
  • Malpractice reform no panacea for rising health care costs (Century Foundation)

Trials, Settlements and Other Ends



September 24, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, September 23, 2010

Butt-Shaking Employee Wins Workers' Comp Appeal

The Iowa Supreme Court has ruled that an employee who said "hello" to a colleague by shaking his butt may be entitled to workers' compensation for the injuries he received when his colleague returned the unusual greeting by tapping him with a truck.  The tap was too hard.  (Courthouse News Service)

Thanks to my colleague, Kathy Jones, for the tip.


September 23, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 22, 2010

Journal of European Tort Law: Volume 1, Issue 2

The European Centre of Tort and Insurance Law and Institute for European Tort Law are pleased to announce the publication of Volume 1, Issue 2 of the Journal of European Tort Law. This is a special issue on Wrongful Birth and Wrongful Life, with papers drawn from the most recent Annual Conference on European Tort Law, held in Vienna in April this year. The issue consists of the following articles:

Barbara C Steininger, Wrongful Birth and Wrongful Life:  Basic Questions (2010) 1 JETL 125
Martin Hogg, Damages for Pecuniary Loss in Cases of Wrongful Birth (2010) 1 JETL 156
Ewa Baginska, Wrongful Birth and Non-Pecuniary Loss:  Theories of Compensation (2010) 1 JETL 171
Albert Ruda, `I Didn't Ask to be Born': Wrongful Life from a Comparative Perspective (2010) 1 JETL 204

Free online access to the content of both this Issue, and Issue 1, is available at (registration required).

The Journal is keen to receive submissions of articles and comments on topics likely to be of interest to its readership. See here for further info and links:

Institute for European Tort Law
Reichsratsstrasse 17/2, A-1010 Vienna, Austria
Tel. (+43-1) 4277-29 662, Fax (+43-1) 4277-29 670 


September 22, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 21, 2010

Boston Considers Banning Soft Drinks Sales in City Buildings

Monday, September 20, 2010

Guest Blogger Donald Gifford on "No 'Ordinary Tort' — Climate Change Tort Actions and the Supreme Court"

Today's guest blogger is Professor Donald G. Gifford, the Edward M. Robinson Research Professor of Law at the University of Maryland School of Law.

No “Ordinary Tort”—Climate Change Tort Actions and the Supreme Court


The U.S. Supreme Court rarely grants certiorari in common law tort cases.  Possibly an exception  is imminent.  It was not surprising that the defendant-utility companies would petition the Supreme Court to accept certiorari[1] in Connecticut v. American Electric Power Co.[2] in which plaintiffs sued six electric utility companies seeking abatement of emissions from the defendants’ fossil-fuel-powered plants that allegedly contributed to global warming.  The Court of Appeals for the Second Circuit allowed the public nuisance action to proceed and in the process held that the

(1) political question doctrine does not bar adjudication of the claims;

(2) plaintiffs—eight states, the City of New York, and several land trusts—all have standing to pursue their claims; and

(3) plaintiffs have properly stated claims under the federal common law of nuisance.


What perhaps is surprising is that the Obama administration recently filed a brief urging the Court to take the case and reverse the Second Circuit,[3] in the process infuriating many in the environmental law community. Admittedly, the Solicitor General urged the Court to reverse the Second Circuit’s decision because of a lack of “prudential” standing and displacement of the common law claims by the EPA’s regulation under the Clean Air Act, grounds narrower than those proffered by the defendants.


In the long term, and viewed from the environmental law perspective, the legal issues raised by the current round of public nuisance actions against greenhouse gas emitters may not prove terribly consequential.  The EPA recently began a process intended to lead to its regulation of greenhouse gas emissions from fixed sources (e.g., industrial plants).   If such regulation occurs, it seems likely that courts facing the same issue in similar suits in the future will hold that common law public nuisance suits are displaced by this regulation under the Clean Air Act.[4]


To the torts scholar, however, the defendants’ cert petition and the Obama administration’s at least somewhat supportive reaction pose fascinating issues.  Both standing and political question doctrine issues seem strangely out of place in a tort action.  Traditionally the standing issue has been raised when a litigant challenges the action or inaction of the political branches of government on the basis of a statutory or constitutional claim.  It is generally thought that in tort litigation, the issue of standing collapses into the substantive cause of action.  Obviously, plaintiffs must allege and prove injury-in-fact and causation, essential requirements of standing, as part of their substantive causes of action.  In a parallel vein, a party raising the political question doctrine as a challenge to justiciability typically argues that the U.S. Constitution allocates responsibility for the pending issue to one of the political branches of government—either the executive or the legislative branch—and not to the courts.  Yet Article III specifically delegates “cases” and “controversies” to the judicial branch.


What is going on?  Are the defendants merely advancing unprincipled arguments to avoid the huge costs of abating their contributions to global climate change?  Is the Administration simply misguided?  I do not think so.


Contrary to the Second Circuit’s conclusion, the public nuisance action seeking to abate defendants’ contributions to global climate change is not “an ordinary tort suit.”[5]  The climate change litigation fits into a new genre of tort litigation, which I have called “public interest tort actions,”[6] that includes government tort actions against gun manufacturers and lead pigment manufacturers a decade ago.  Public interest tort litigation seeks to use the tort system to impose comprehensive judicial regulation when plaintiffs believe that either the political branches of government have refused to regulate when they should have acted or the government’s actions fall short of a minimally adequate response.  The plaintiffs are usually collective entities, such as state or municipal governments or class actions.  The substantive claim represents a collective harm, usually public nuisance.


Public interest tort litigation, unlike ordinary torts, raises serious justiciability concerns whether analyzed under either standing or the political question doctrine.  Laurence Tribe and his two co-authors recently argued that the Supreme Court should use the standing doctrine “to prevent some of the most audacious judicial sallies into . . . the climate change case, where plaintiffs assert only undifferentiated and generalized causal chains from their chosen defendants to their alleged injuries.”[7]  The appropriate role of common law courts is to adjudicate circumscribed, bounded disputes, not society-wide or even worldwide problems.


Regarding the political question doctrine, in the leading case of Baker v. Carr,[8] the Supreme Court identified six factors that individually or in combination with one another might lead a court to conclude that an issue poses a political question and therefore is non-justiciable.  Here, two of these factors are most relevant:  “a lack of judicially discoverable and manageable standards for resolving it;” and “the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion . . . ”[9]


When it comes to global climate change, as one environmental group has advertised, each of us is a plaintiff.  Left unsaid is the reality that each of us who drives a gasoline-powered or hybrid vehicle or who heats her home with fossil fuels is also, at least theoretically, a defendant.   No judicially discoverable and manageable standards exist to determine whether any particular defendant’s contributions to global climate change exceed reasonable levels and what limits courts should impose. Determining the appropriate mixture of   regulatory levels across all greenhouse-gas emitters and industries would require weighing the relative societal costs and benefits of reducing emissions from each of the literally hundreds of millions (in the U.S.) or billions (worldwide) of fossil fuel consumers.   These are not the kind of decisions that a common law court is capable of making.   Climate change is the society-wide—indeed worldwide—type of harm that our constitutional structures anticipated the political branches would handle.  Solving the problem requires policy decisions appropriately made by political institutions deriving their legitimacy from something other than a court’s reasoned elaboration from precedents that bear little or no resemblance to the complex meteorological, ecological, and economic issues inherent in climate change litigation. 


In the past, public nuisance actions have proved to be an important weapon in efforts to prevent environmental degradation.  Using public nuisance to tackle climate change, however, is going too far.  Most of us came to intellectual maturity during a time in which the Supreme Court generally stayed out of tort actions.  We are inclined to see intervention from today’s Supreme Court, typically regarded as conservative and pro-business, as an illegitimate intrusion into our world of common law courts.  But, before reaching that conclusion, we should carefully consider whether global climate change public nuisance litigation is in fact merely an “ordinary tort” or whether climate change litigation is a well-intentioned but fundamentally flawed circumvention of our constitutional structure that asks the trial court to do the impossible.


- Donald G. Gifford

Edward M. Robinson Research Professor of Law

University of Maryland School of Law    

[1] Connecticut v. Am. Elec. Power Co., 582 F. 3d 309 (2d Cir. 2009), petition for cert. filed, 79 U.S.L.W. 3092 (U.S. Aug. 2, 2010)  (No. 10-174).

[2] 582 F. 3d 309 (2d Cir. 2009).

[3] Brief of the Tennessee Valley Authority in Support of Petitioners’ Petition for a Writ of Certiorari, Am. Elec. Power Co. v. Connecticut,  582 F. 3d 309 (2d Cir. 2009), U.S. Supreme Court No. 10-174 (hereinafter “TVA Brief”), brief docketed Aug. 24, 2010,  available at 

[4] TVA Brief, 24 – 32.

[5] Am. Elec. Power Co., 582 F. 3d at 331.

[6] Donald G. Gifford, Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines, 62 S.C. L. Rev. __ (2011), available at = 1674443.

[7] Laurence H. Tribe, Joshua D. Branson & Tristan L. Duncan, Too Hot for the Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine 24 (Washington Legal Foundation, Critical

Legal Issues Working Paper Series, No. 169, 2010), available at 

[8] 369 U. S. 186 (1962)

[9]  Id. at 210 – 15. 

September 20, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Friday, September 17, 2010

Personal Injury Roundup No. 80 (9/17/10)

New Suits

  • Mel Gibson's ex-girlfriend Oksana announced her intent to file suit against Mel for battery, emotional distress and defamation. (TMZ).
  • Florida state court judge sues for medical malpractive for sponge left in his abdomen after surgery.  (Miami Herald)
  • Michael Jackson's mom sues concert promoter for wrongful death.  (Turkewitz)


  • Second Circuit reverses Judge Weinstein's class certification in the Zyprexa litigation.   The Court also vacated his denial of summary judgment.  (Court's opinion, Point of Law).
  • Sixth Circuit vacates jury award in welding rod case based on errnoneous Daubert ruling. (Mass Tort DefenseCourt's opinion)
  • Ninth Circuit affirms Alien Tort Claims Act verdict in favor of Chevron.  (Court's opinion, Torts/Bernabe)
  • Massachusetts Supreme Court adoptes "apparent manufacturer" doctrine. (Bernabe)

Reform, Legislation, Policy

  • The costs of defensive medicine?  Philadelphia Inquirer and BNET take a look.
  • Federal magistrate judge concludes that Texas's medical malpractice caps are constitutional.  (Texas Tribune)
  • Senator Patrick Leahy (D-VT) introduced the Food Safety Accountability Act of 2010, which strengthens criminal penalties for food safety violators.  (FDA Law Blog)

Trials, Settlements and Other Ends

  • $1.1 M jury award in Baltimore medical malpractice case.  (About Lawsuits)
  • $5.8 M alienation of affection award in North Carolina. (WNCT)


  • Podcast on California's medical malpractice laws.  (Bernabe)


September 17, 2010 in Roundup | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 15, 2010

Prof. Richard Cole

I am sad to report that TortsProf Richard Cole, of my institution (Western New England) passed away over the weekend.  Dick began teaching at the School of Law in 1976, and, over the years, taught Torts, Toxic Torts, and various other courses related to civil litigation.  A graduate of the University of Pennsylvania and the University of Michigan Law School, Dick also taught at Detroit College of Law and visited at Oxford.

I join Dean Gaudio, as do all of my colleagues, in grieving the loss of a colleague and friend.  Dick was a gentle, caring, and inquisitive professor and colleague, and he touched countless lives.


September 15, 2010 in TortsProfs | Permalink | Comments (1) | TrackBack (0)

Call for Papers: Civil Litigation as a Tool for Regulating Climate Change

Call for Papers

Civil Litigation as a Tool for Regulating Climate Change

Conference on February 18, 2011

The purpose of this conference is to explore the interlinked policy, science, legal and political questions of utilizing the American litigation system, and particularly its tort theories of liability, to regulate climate change.  Attempts to employ the courts as a tool for regulation are exemplified by cases such as Comer v. Murphy Oil, Connecticut v. American Electric Power, Co., and Native Village of Kivalina v. Exxon Mobile Corporation.  Key presentations at the conference will be made by Professor Daniel Farber, Director of the Center for Law, Energy and the Environment, University of California at Berkeley;  Professor Michael B. Gerrard, Director of the Center for Climate Change Law, Columbia University School of Law; and Professor Daniel Bodansky of the Schools of Sustainability and of Law, Arizona State University.  Scholars and practitioners in the fields of environmental science, litigation, and tort law, among other areas, are encouraged to attend and present papers that will generate debate and discussion concerning the desirability of such litigation, strategies concerning it, and the impact it might have on efforts to bring about national legislation and international cooperation on global warming and related problems.

Valparaiso University School of Law issues this call for papers as part of the 25th Annual Monsanto Lecture/Conference on Tort Law and Jurisprudence, to be held at the School of Law on February 18, 2011.  If you are interested in presenting, please submit an abstract of your proposed paper. Abstracts are due on or before December 1, 2010.  A limited number of stipends are available to defray travel and lodging costs of some participants.

Submitted by Joellen Lind.

September 15, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Health Affairs Sept. 2010 Issue - "Medical Malpractice & Errors"

The September issue of Health Affairs focuses on the topic of "Medical Malpractice & Errors."    The issue includes an article co-authored by Michelle Mello (Harvard), et al., on "National Costs of The Medical Liability System," and a another article co-authored by Anna C. Mastroianni  (U. Wash. Seattle), Mello and others on "The Flaws in State 'Apology' and 'Disclosure' Laws Dilute Their Intended Impact on Malpractice Suits."

Unfortunately, full text is available by subscription only, though issue summaries are available.    If this is an area of interest, I recommend getting the full September issue. 


September 15, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 14, 2010

Herstein on "Why the Duty of Care is Not a Duty 'To Try'"

Ori Herstein (Cornell) has posted "Responsibility in Negligence: Why the Duty of Care is Not a Duty 'To Try'"  on SSRN.  The abstract provides:

Even though it offers a compelling account of the responsibility-component in the negligence standard - arguably the Holy Grail of negligence theory - Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm - the essence of the negligence standard - and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try.

The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try - searching for the responsibility-component in the negligence standard - I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try.

 - SBS

September 14, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 13, 2010

Guest Blogger Andy Popper: "Leaping Forward--or Not--With the 2010 Foreign Manufacturer Legal Accountability Act"


    Earlier this summer I testified in favor of H.R. 4678, The Foreign Manufacturers Legal Accountability Act.  While at first the bill looked like it would sail through, recent highly vocal and stunningly well-funded opposition from foreign automobile manufacturers and others (can you guess which absolutely huge auto manufacturer – from Japan – has been at the forefront?) has placed its future in doubt. 

    Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually.  Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (think Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to give rise to the prospect of strangulation, etc.).  Because of the complex post-Asahi minimum contacts puzzle, many of those producers are not subject to tort liability in state courts regardless of the fact that their products are dangerous and likely to be sold in the U.S.  

    H.R. 4678 would require foreign manufacturers of certain products and component parts to designate a registered U.S. agent to accept service of process in a state where the manufacturer has a substantial connection either through importation, distribution, or sale of its products.  Three federal agencies (FDA, CPSC, and EPA) would determine the products and component parts subject to the terms of the bill.  Each agency would also establish the minimum quantity or value required to trigger the terms of the bill.  Central to the bill is the declaration that designation of a registered agent constitutes consent to jurisdiction by the foreign manufacturer in the courts of that state and in federal courts. 

    This strikes me as a simple, elegant, and appropriate step forward.  It levels the civil liability landscape, stripping foreign manufacturers of an unfair advantage over domestic manufacturers and addresses a powerful but understandable anomaly in our legal system. 

    By making possible litigation against those who place into the stream of commerce defective goods, the bill triggers the corrective justice incentive mechanisms of the tort system.  When you create the realistic possibility for liability, you activate incentives to make safer and more efficient products. 

    It is both the current state of the law – and problematic – that a foreign producer cannot readily be held accountable in state courts even if (a) the product was unquestionably dangerous and defective, (b) the harm to the victim was foreseeable, and (c) the foreign producer has sold large numbers of these products in the U.S. in the past.  Every U.S. manufacturer of any product is subject to the U.S. rule of law, the U.S. tort/civil justice system, and U.S. regulatory mandates.  That foreign entities and individuals profit from the sale of defective goods and are outside this system is wrong.  

    We all recognize the legal issue: assertion of jurisdiction over an individual or entity presents a challenge when the entity’s contacts with state are limited.  Not surprisingly, many foreign manufacturers do not have an officer, agent, representative, employee, office, or property in a particular state where their products cause harm.  At present, such manufacturers cannot readily be “haled” into state court if their contacts fail to meet the constitutionally compelled “minimum contacts” requirement.  In addition, the assertion of judicial power must be consistent with notions of fair play and substantial justice, fundamental fairness, and reasonability – for the defendant.  In the absence of the ingenious solution presented in H.R. 4678, these norms prevail and access to justice is limited or denied. 

    Opponents have argued that the terms of the bill violate WTO constructs.  They claim this system would discriminate unfairly against foreign manufacturers.  Frankly, it is hard to see how H.R. 4678 would create any undue barrier or obstacle to trade.  It imposes on foreign manufacturers the same responsibilities and obligations of domestic sellers and producers.  This is a straightforward and essential change, giving injured persons access to the civil justice system. 

    Check out the full text of the legislation as well as the testimony and statements filed regarding H.R. 4678 at:


--Andy Popper

American University


September 13, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Friday, September 10, 2010

Personal Injury Roundup No. 79 (9/10/2010)

We're back!  Did you miss our rounduppy goodness?  We've all started back at our respective institutions, and we're ready to rumble, er, provide a list of links to things happening in tort law.

New Suits

  • Family to sue Extreme World amusement park where daughter critically injured; free-fall ride had no fail-safe to ensure the catch net was in place before patrons were dropped 80 feet.  [WFRV]
  • Suit follows tea bottles allegedly exploding (linked to largely for the tag "Don't Tazo Me Bro") [Consumerist]
  • Burn from hot chocolate at McDonalds results in lawsuit (focus is on lid attachment as well as temperature) [Chicago Tribune]
  • Echoing the always-good-for-a-squirm Shoshone Coca-Cola Bottling Co. v. Dolinski, a new lawsuit against Wal-Mart for milk containing a dead mouse.  [Justice News Flash]


  • A fascinating case involving third-party intervening criminal misconduct; Tennessee appellate court concludes no manufacturer liability when an amusement park operator intentionally bypassed a safety system. []
  • Dismissal of tort suit for torture upheld based on state secrets doctrine [Washington Post]
  • Plaintiff's verdict in mesothelioma suit upheld; exposure came from cleaning husband's clothes.  []
  • Plaintiff's $20.5 million verdict in welding rod suit vacated, remanded for new trial with expert excluded. [Plain Dealer]

Policy, etc.

Trials, Settlements and Other Ends

  • Ford settles faulty-seatbelt case post-$131 million jury compensatory (should there be air quotes there?) verdict, before punitives.  [AOL Autos]


  • BP's report: "An Exercise in Rebutting Gross Negligence Claims?"  [WSJ Law Blog]
  • A (defense-oriented) look at the status of global warming litigation.  [Mass Tort Defense]
  • Bumbershoot would like you not to stage dive or mosh, but if you do, to be aware that it's risky.  I think that's what they mean anyway.  []
  • Do you have kids?  Do you know someone who does?  You might want to buy this CD, released on a label started by, uh, me.  New music from Pete Seeger, Dan Zanes, They Might Be Giants, Jonathan Coulton, and more.  Benefiting Haiti relief.  []


September 10, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 8, 2010

Simons on "Statistical Knowledge Deconstructed"

Kenneth Simons (Boston University) has posted to SSRN Statistical Knowledge Deconstructed.  The abstract provides:

In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.

This article presents the first systematic analysis of this pervasive but underappreciated problem, and it offers a qualified defense of the distinction. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and often is not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts might cause the actor to acquire statistical knowledge, but such an increase in scale ordinarily does not increase the level of culpability properly attributable to the actor. I articulate two invariant culpability principles, “Invariant culpability when acts are aggregated” and “Invariant culpability when risk-exposures are aggregated,” that formalize this idea.

Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable, and treats his acts as especially difficult to justify, when he knowingly imposes a highly concentrated risk of serious harm on a victim. (Under SSP, speeding to the hospital to save five passengers, knowing that this will likely require killing a pedestrian in one’s path, is much harder to justify than speeding to the hospital to save one passenger, knowing that this creates a 20% chance of killing a pedestrian in one’s path.)

The analysis has a number of implications and is also subject to important qualifications: Notwithstanding the invariant culpability principles, if a faulty actor repeats his unjustifiable acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists; in rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor’s culpability is comparable to that of an actor with individualized knowledge; the higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to “identifiable victims,” except insofar as that duty is a crude version of SSP; the decision by an actor to proceed with an activity after conducting a cost-benefit analysis is not, by itself, evidence of culpability, even if that analysis provides the actor with statistical knowledge that the activity will cause serious harm; a legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.

Via Solum/Legal Theory Blog.


September 8, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Priel on "A Public Role for the Intentional Torts"

Danny Priel (Warwick/Osgoode Hall) has posted to SSRN A Public Role for the Intentional Torts.  The abstract provides:

The recent litigation that ended in the House of Lords’ decision in Ashley v. Chief Constable of Sussex Police has brought the intentional torts back to the focus of judicial attention. Most commentary on this decision has focused on a few dicta that purport to support a reading the decision as concerned with private vindication of rights. In this article I examine this decision against a broad shift that has been taking place within tort law, and in particular the tort of negligence, away from ‘private law’ concern with the particular individuals involved in the litigation and towards broader ‘public’ concerns. After describing this shift in the case of negligence, I consider three possible private law interpretations of the role of the intentional torts. I argue that they are all deficient. I then highlight an aspect of Ashley that has been ignored by other commentators and which fits the public interpretation of tort law. I argue that this aspect provides a more convincing explanation for the decision, and one that aligns the intentional torts with the rest of tort law.


September 8, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 6, 2010

Happy Labor Day!

From the U.S. Department of Labor, some facts you may not now about Labor Day -

  • The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union.
  • In 1884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date.
  • By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.


September 6, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 3, 2010

Rapp on "Defense Against Outrage and the Perils of Parasitic Torts"

Geoffrey Rapp (Toledo) has posted to SSRN Defense Against Outrage and the Perils of Parasitic Torts.  The abstract provides:

In Snyder v. Phelps, the Supreme Court will soon weigh whether protestors at a slain soldier’s funeral committed the tort of Intentional Infliction of Emotional Distress (IIED) or engaged in protected speech. Imagine that Mr. Snyder, the IIED plaintiff and soldier’s father, had, rather than bring a tort claim, used physical force to defend himself from the arguably tortious conduct of Phelps and his crowd. Can force be used to defend against intentional extreme or outrageous conduct threatening a person with severe emotional distress? The answer in the case law and articulated doctrine appears to be “no.”

Two prominent narratives in tort law scholarship address the increasing recognition of claims for loss of emotional tranquility and the expanding privilege to use force in defense of self and others. This Article explores a puzzle in tort law that challenges these traditional accounts. The law permits the use of force to protect dignitary interests, in the case of offensive battery and assault, but seems to deny the use of force to protect against IIED. No basis for this distinction appears in the leading theoretical accounts of tort law – economics, corrective justice, and civil recourse theory. Rather, the basis of the rule seems to be the childhood maxim, “Sticks and stones…,” without strong theoretical or policy justification.

Two implications arise. First, the law continues to privilege physical security above emotional well-being. Second, although it is arguably the most successful “new” tort of the twentieth century, IIED remains a tort whose boundaries are murky and whose place in tort doctrine is unclear. The parasitic nature of IIED has complicated the effort to build clear doctrine around all but the most essential elements of the claim.


September 3, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)