TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, November 30, 2010

Vaccines & Drugs: A Brave New Tort World

AALS Torts & Compensation Chair Cathy Sharkey has put together a fantastic panel for the 2011 Annual Meeting in San Francisco.  The overview:

The proliferation of vaccine and pharmaceutical drug-related injuries challenges our conceptions of how the tort system can best meet its compensatory and regulatory aims in the 21stcentury.  In 1986, Congress created the National Childhood Vaccine Act, establishing a no-fault compensation scheme for vaccine-related injuries.  In 2010, the U.S. Supreme Court granted certiorari in Bruesewitz v. Wyeth, Inc. to decide whether design defect claims against vaccine manufacturers are preempted.  This follows closely on the heels of the U.S. Supreme Court’s decision in Wyeth v. Levine, finding that failure to warn claims against a drug manufacturer were not preempted.  Our panelists—who include two prominent torts and products liability scholars (Mary Davis, who posted on a related issue on Monday, and Bob Rabin, who will guest blog with us next semester), a seasoned litigator (Mal Wheeler), and a policy expert (James Copland)—will explore whether it makes sense to have separate legal regimes for vaccines and other pharmaceuticals.  They will also address issues at the core of tort law in the modern administrative state: the need for no-fault victim compensation and the respective roles of litigation and governmental regulation.

The program is Saturday, January 8th from 1:30 to 3:15.  The location has not been finalized because of an ongoing labor dispute.  I'll provide an update on the location when it's available.  I hope to see you there.


November 30, 2010 in Conferences, Products Liability | Permalink | Comments (0) | TrackBack (0)

Outsourcing Department of Labor Legal Work

An opinion piece in the Wall Street Journal on Saturday, cleverly titled "1-800-Trial-Bar," described an announcement by Vice President Joe Biden of a government-funded toll-free number for employees to call with unresolved Fair Labor Standards Act or Family Medical Leave Act complaints to receive a referral to a private attorney.

It sounded like hype to me, but then I investigated a bit - and it's true!   According to the ABA,

Some workers whose complaints aren’t resolved by the U.S. Labor Department will be told of another option: Find a private lawyer through an ABA-approved lawyer referral program.

....In a typical year, more than 35,000 workers contact the Wage and Hour Division with complaints, according to the Labor Department’s Office of Public Affairs. Most are resolved, but thousands can't be resolved because of limited capacity, Solis said at the press conference.

Now, beginning on Dec. 13, workers with unresolved complaints under the Fair Labor Standards Act or the Family Medical Leave Act will be told of another option. They will get a letter explaining their rights and offering a toll-free number that can link them to ABA-approved lawyer referral programs in their geographic area.

As the White House Press Release explains further, the rationale seems to be "Well, the Department of Labor can't handle all of these complaints so we'll outsource the work to private lawyers."   I'm paraphrasing, but here's the official explanation from the press release:  "[C]omplainants whose cases cannot be resolved by DOL because of limited capacity will be given a toll-free number to a newly created system where they are connected to an ABA-approved attorney referral provider if there are participating attorneys in their area."  (emphasis added). 

Here's an idea - Instead of outsourcing to private attorneys, the Department of Justice could hire more recent law grads through its Honors Program and thus create jobs as well as resolve these FLSA/FMLA complaints.


November 30, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, November 29, 2010

Guest Blogger Mary Davis: Preemption and Modern Tort Litigation

I have spent the better part of the last decade thinking and writing about federal preemption of state common law damages actions, particularly in the products liability context.  I think that federal preemption provisions should be narrowly construed to preserve state tort law--I am an unapologetic fan of the tort system with all its supposed faults.  I think that state common law tort doctrine, and the private litigation that stems from it, adds value to our society that is largely immeasurable.  Congressional intent, the "touchstone" of preemption analysis according to the Supreme Court, should be crystal clear if it is to displace that law.  A longstanding "presumption against preemption" operates as a tool of discerning congressional intent in default of such clarity, but the Supreme Court wavers in its adherence to the presumption and, consequently, it is under attack. 

The Supreme Court is poised to answer another preemption case this term in Bruesewitz v. Wyeth involving preemption under the National Childhood Vaccine Injury Act (Vaccine Act).  The Vaccine Act contains an express preemption provision which the Court will have to interpret and the application of the presumption against preemption, in both express and implied preemption, will be in issue.   Unlike most congressional legislation which affects products liability, the Vaccine Act created a compensation system for children who are injured by the unavoidable side effects of a vaccine.  The legislation was the product of a substantial outcry by vaccine manufacturers in the mid-1980s about the effect of tort litigation on the vaccine supply—manufacturers would stop producing vaccines if Congress didn’t do something.  So Congress did.  Over twenty years later, the Court must determine in Bruesewitz what Congress meant when it said that state tort law was preempted if a vaccine’s side effects were “unavoidable.”  For those of you familiar with the Restatement (2d) of Torts § 402A on strict products liability, this language comes from comment k on liability for unavoidable risks.

In 1991, the Supreme Court began in earnest to address preemption in product liability claims and has decided over a dozen such cases using a confusing array of analyses with results that are sometimes difficult to reconcile. Bruesewitz is one of two products liability preemption cases the Court has agreed to hear this term.  The other involves preemption of product liability claims under the National Traffic and Motor Vehicle Safety Act of 1966.  In Williamson v. Mazda Motor of America Inc., the Court must determine whether the Motor Vehicle Safety Act impliedly preempts a claim based on the design of rear seat belt systems.  This case will build on Geier v. American Honda Motor Corp., decided in 2000, in which the Court found implied conflict preemption based on the federal seat belt standard in a case involving the failure to incorporate air bags into the vehicle's design.  Geier found the plainitiff's claim preempted even though the legislation contains a savings clause that purports to save common law damages actions.   There is obviously much more to these cases but delving into preemption in detail is not my major goal.

While exploring the Vaccine Act and the preemption issue raised by Bruesewitz (because I never want to miss an opportunity to write something about preemption), I happened to receive an e-mail from our Torts colleague (and my former professor) Dean David Logan from Roger Williams University School of Law forwarding the following New York Times article by Binyamin Applebaum that I had not seen: This article reports on the increase in private financing of tort litigation.  I was startled by it.  The Times article reports that  “Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.”  I suppose that I should not have been surprised that private investors might be interested in the results of private litigation—law firms have to go somewhere for the funds to finance such litigation. 

In the way that law professors do, I began to think about the intersection of my research into the Vaccine Act preemption issue, and my newfound knowledge of the abundance of private investment in tort litigation.  The increase in preemption arguments since the early 1990s surely resulted in part from product manufacturers and other litigation targets trying to get out from under the “weight,” perceived or real, of large-scale tort litigation.  The occasional tort claim in the face of federal regulation never seemed to generate much preemption interest until truly large-scale tort litigation became the norm after the explosion in asbestos cases in the 1980s and 1990s.  Traditional analysis of the preemptive scope of most federal regulation had not resulted in findings of preemption until then; indeed, very few such arguments had been made. 

Fast forward to 2010.  Large-scale tort litigation is the norm.  And every case in which there is a federal regulation presents an opportunity for defendants to pose preemption arguments.   The presumption against preemption assumes that state common law tort doctrine operates as an important counterpoint to federal regulation.   What else informs the presumption?  Must we explore the way in which state common law damages actions proceed--with an understanding of the monetary influences and the pressure to settle--as part of the analysis?   Common law tort claims survive federal preemption efforts depending on an assessment of congressional intent but does that assessment require an understanding of the modern way that those claims come to exist and are resolved?  I had not included the litigation process into my own analysis but that may have been naive.  I wonder whether the value of tort law as I have always believed in it is being thwarted by those who champion it just as it is by those who would displace it with the work of federal regulators.  The use of class actions and other aggregate litigation directed toward settlement was largely unknown to the Congresses writing legislation which is now the subject of preemption analysis.  The Vaccine Act was written explicitly against the background of a concern for large-scale litigation and yet Congress still explicitly preserved some state common law claims.  That awareness may be critical to deciding the scope of the Vaccine Act's preemption provision.  In hindsight, that seems a remarkable step.

I have often criticized product manufacturers who cry that “the sky is falling” because of the flood of alleged unmeritorious litigation that they face.  Private financing of litigation does not render litigation unmeritorious; on the contrary, it may suggest the opposite.  But as we end another semester of teaching torts to One-Ls, my belief in the importance of a robust state tort law unimpeded by an aggressive use of preemption, and my concern over the influence of private investment of large-scale tort litigation have collided in a way that makes me ponder how I will reconcile the conflict for my Torts students of the future.  What will I tell my students next year when they ask me what the purpose of tort law is in the 21st century with the mass of federal regulation controlling conduct of product manufacturers and others, and the pressure on lawyers to provide a return on investment to the financiers of private litigation.  I would be interested to hear your answers.

--Mary J. Davis, Associate Dean for Administration and Faculty Development and the Stites and Harbison Professor of Law, University of Kentucky College of Law

November 29, 2010 in Guest Blogger | Permalink | Comments (2) | TrackBack (0)

Sunday, November 28, 2010

Bed Bug Liability

Josh Freedom duLac of The Washington Post published an article yesterday about liability for bed bugs.  Judge Posner's Mathias case was ahead of its time.  The recent surge in bed bugs has created an uptick in litigation against motel owners and landlords alike.  duLac's article focuses on a Maryland attorney who is filing a series of bed bug liability suits.  The typical compensatory damages claim is $200,000, and many of the suits claim punies.  Bed bug suits, in Maryland and elsewhere, generally face three major issues.

First, plaintiff will have to prove notice on the part of the motel owner or landlord.  Actual notice is best, but constructive notice should suffice.  For constructive notice, the focus will be the length of time the condition (bed bugs) has been in place.  The Maryland suits contain mostly conclusory allegations, so discovery will be important.

Second, plaintiff will have to establish compensatory damages.  Bed bugs are nasty creatures, and I have a lot of sympathy for people impacted by them.  On the other hand, as I noted in the article, I'm skeptical of the amounts claimed in the Maryland suits.  $200,000 is a large sum of money.  I know of someone who received slightly more than that from the tort system for losing his eyesight in both eyes.  I don't claim that outcome was adequate, but it does bring the bed bug damages into perspective.  I understand that ad damnum clauses are drafted as a ceiling, but these are quite high.  Plaintiffs in Mathias got a jury verdict for compensatory damages of $5,000.  A Florida attorney quoted in duLac's article is leaving the bed bug liability field because the damages are too small.  He noted that he settled one case for $4,000 and another for $10,000.

Finally, a fairly standard punies regime requires a plaintiff to prove some type of conscious and deliberate behavior on the part of the defendant.  In Mathias, the hotel owners were informed about the bed bugs.  Instead of paying for a $500 extermination, the owners allowed the bed bug situation to fester for nearly two years.  It was widely known the hotel had bed bugs.  There were certain rooms that employees were not supposed to rent out because of the bugs, yet the rooms were rented if there were not enough other rooms available.  Guests were informed the bugs were ticks (as if that's better!).  Under these circumstances, the court upheld a punies verdict of $186,000.  If proving notice in the Maryland cases will require the discovery of significant facts, for punies the bar is even higher. 


November 28, 2010 in Current Affairs, Damages | Permalink | Comments (3) | TrackBack (0)

Thursday, November 25, 2010

Monday's Guest Blogger: Mary Davis


Mary J. Davis is the Associate Dean for Administration and Faculty Development and the Stites and Harbison Professor of Law at the University of Kentucky College of Law. She joined the faculty in 1991 after six years of a litigation defense practice, predominantly in products liability, for the law firms of Womble, Carlyle, Sandridge & Rice in Winston-Salem, North Carolina and McGuire, Woods, Battle, & Boothe in Richmond, Virginia.

She has been a visiting professor of law at the University of Texas School of Law, Boston College Law School, William and Mary College of Law and Wake Forest University School of Law. She is co-author of the textbook Products Liability and Safety: Cases and Materials(5th ed. 2008) (including the annual case supplement and Teacher's Manual). She is also a co-author of a multi-volume products liability treatise, Owen, Madden and Davis on Products Liability. Her articles have appeared in such journals as the Boston College Law Review, the University of Pittsburgh Law Review, the Wake Forest Law Review, and the Tennessee Law Review.

Professor Davis is routinely quoted in the national press on subjects of products liability and mass tort litigation. She is a 1985 magna cum laude graduate of the Wake Forest School of Law, where she served as Managing Editor of the Law Review, and a 1979 cum laude graduate of the University of Virginia. She is also a member of the American Law Institute since 2001 where she serves on the Members Consultative Groups for the Restatement (Third) of Torts and Aggregate Litigation Projects.

November 25, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Happy Thanksgiving 2010!

Enjoy the day.


November 25, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 24, 2010

Charlie Sheen to be Sued in Tort?

The woman Charlie Sheen escorted to an event (for a fee of $3,500) on October 25 claims she will file criminal charges and a civil complaint against the actor.  The story in the Detroit Free-Press mentions both assault and false imprisonment.  Because she alleges Sheen put his hands around her neck, I assume she would sue for battery as well.


November 24, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 23, 2010

The Oxford Introductions to U.S. Law: Torts

John C.P. Goldberg (Harvard) and Ben Zipursky (Fordham) are co-authors of The Oxford Introductions to U.S. Law: Torts:

Torts--personal injury law--is a fundamental yet controversial part of our legal system. The Oxford Introductions to U.S. Law: Torts provides a clear and comprehensive account of what tort law is, how it works, what it stands to accomplish, and why it is now much-disputed. Goldberg and Zipursky--two of the world's most prominent tort scholars--carefully analyze leading judicial decisions and prominent tort-related legislation, and place each event into its proper context. Topics covered include products liability, negligence, medical malpractice, intentional torts, defamation and privacy torts, punitive damages, and tort reform.

Harvard Law School has a video discussion with Professor Goldberg about the book.



November 23, 2010 in Science, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, November 22, 2010

Bankrolling Lawsuits

Last week, the New York Times ran an interesting article on how companies are investing in lawsuits for their potential return.    From  Investors Put Money on Lawsuits to Get Payouts:

Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.

The loans are propelling large and prominent cases. Lenders including Counsel Financial, a Buffalo company financed by Citigroup, provided $35 million for the lawsuits brought by ground zero workers that were settled tentatively in June for $712.5 million. The lenders earned about $11 million.


November 22, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, November 19, 2010

A Brief Overview of Alienation of Affections available here.


November 19, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

How Will Scientific Advances Affect Toxic Tort Litigation?

LegalNewsline focuses on how toxicogenomics--the study of the relationship among the cell's genome, chemicals in the environment, and disease--will play out in toxic tort litigation, especially on proof of causation.  Among other issues, the article discusses whether toxicogenomics will favor plaintiffs or defendants as a class.  Andy Klein (Indiana-Indianapolis) and Steve Gold (Rutgers) are quoted.


November 18, 2010 in Experts & Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 17, 2010

Escargot Explodes, Diners Sue

A Marin County, CA seafood restaurant has been sued in small claims court over an allegedly exploding escargot that sprayed diners' faces and polo shirts with hot garlic butter.  The diners claim suit could have been avoided with an apology.  The owner of the restaurant asserts that the plaintiffs made up the story.

USA Today has the story.


November 17, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 16, 2010

Assumption of the Risk & Golf - Possible Exam Hypo

Here's a possible exam hypo:  Golfer hits a poor shot from the rough and the ball hits his partner, who is standing off to the side out of the intended line of flight, in the head.  Can the injured golfer sue for negligence?   A New York trial court ruled "no" holding that the injured golfer assumed the risk, and the appellate court affirmed holding that the injured golfer was not in the "foreseeable zone of danger."  The New York Court of Appeals will hear oral arguments today. 

More from the Wall Street Journal Law Blog.


November 16, 2010 | Permalink | Comments (2) | TrackBack (0)

Monday, November 15, 2010

ABA Essay Contest on Legal Malpractice

From Legal Ethics Forum comes word of an ABA essay contest open to students and ABA Young Lawyer Division members.   The question posed is "whether a party who has engaged in fraud (or that party’s successor) has standing to sue a lawyer based on conduct relating to the fraud itself, or if such a claim is barred by the doctrine of in pari delicto."

The full hypo is available here.   The winner receives a $5,000 prize and an all expense paid trip to the Spring 2011 National Legal Malpractice Conference in Boston in April 2011.


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

Friday, November 12, 2010

Personal Injury Roundup No. 86 (11/12/10)

New Suits

  • MDL Panel considers consolidation of federal DuPuy hip replacement litigation; oral argument on motion scheduled for next Thursday, November 18th. (About Lawsuits)
  • Food poisoning suit filed against Maryland orchard for e. coli outbreak in apple cider. (About Lawsuits)


  • Louisiana appellate court finds child's ride on oil pump could be an anticipated use, and reverses summary judgment for the defendant.  (Mass Tort Defense)
  • United States Court of Appeals for the Fourth Circuit on duty under SC law. (Consumer Class Actions)

Reform, Legislation, Policy

Trials, Settlements and Other Ends

  • Missouri jury awards $35M in wrongful death suit stemming from a tractor trailer accident on I-70 in 2006 (About Lawsuits)
  • After eight years of litigation, class certification was denied in the Pelman obesity litigation suit against McDonald's.  The suit alleges that the company's advertising somehow decieved consumers into thinking a regular diet of McDonald's was healthy.   (Mass Tort Defense, Consumer Class Actions)
  • Judge grants new trial in St. Louis "Girls Gone Wild" suit.  (Point of Law)


  • NY Times Magazine profiles key players in BP Oil Spill Litigation.  (NYT)


November 12, 2010 in Roundup | Permalink | Comments (1) | TrackBack (0)

Thursday, November 11, 2010

Happy Veterans Day 2010

Thanks to all who have served.

A compilation of Veterans Day quotations is here.


November 11, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 10, 2010

Dillbary on Contribution in Tort

Shahar Dillbary (Alabama) has posted to SSRN Apportioning Liability Behind a Veil of Ignorance.  The abstract provides:

This article challenges the reason that led most states to abandon the “no contribution” rule. Under the rule if a victim obtains a judgment against two tortfeasors but chooses (even arbitrarily or out of spite) to recover only from one, the “chosen one” must pay the entire judgment while the other is exempt although both are liable. This is the case even if the paying tortfeasor is only 1% at fault while the non-paying tortfeasor is 99% at fault. The rule has been lamented by tort reform crusaders as immoral and unfair. One tortfeasor, the argument goes, should not bear the entire burden while the more culpable tortfeasor is exempted from liability. In deviation from the prior literature, the article employs economic theory to show that the “no contribution” rule that has been crowned as efficient is fair and just. It adopts a contractarian approach to analyze different apportionment regimes including joint and several liability (with and without contribution), several liability and market share liability. Relying on modern decision theory the article shows that individuals behind a veil of ignorance, unaware as to whether they would be victims or injurers may in fact choose the much criticized "no contribution" rule. In doing so the article sheds new light on a fierce and ongoing debate and concludes with a new framework for analyzing apportionment policies.

(Via Solum/Legal Theory Blog)


November 10, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 8, 2010

Guest Blogger Mike Wells: "Constitutional Torts and Tort Theory"

             By dividing the legal world into public and private, the law school curriculum tends to neglect topics that straddle the two areas. Consider, in particular, “constitutional tort.” In a better world, the quotation marks would not be necessary, as everyone would know that constitutional torts are  suits brought under 42 U.S.C. § 1983 or the federal common law cause of action recognized in  Bivens v. Six Unknown Named Federal Agents, in which plaintiffs seek damages for constitutional violations committed in the past. At the risk of overstating the point, my sense is that, fifty years after the Monroe v. Pape first read § 1983 as making these suits broadly available, many scholars on both sides of the public-private divide stick to their side of the public-private divide and think of constitutional tort as an odd hybrid, when they think about it at all.

             Modern tort law, or at least the part of it that most interests law professors, is  primarily concerned with products liability, mass torts, and other events and practices that may give rise to big losses. The pressing issue always seems to be which of two private entities should bear that loss, and with what social goal in mind should liability be imposed. Torts casebooks reflect this emphasis and rarely contain any materials on constitutional tort. (I do not mean to suggest that they should do so.) Constitutional scholarship and constitutional law survey courses deal mainly with  issues of separation of powers,  judicial review, and the general restrictions imposed on the state by the First and Fourteenth Amendments. As a result, neither constitutional scholars nor torts experts pay much attention to constitutional torts, and students learn little about § 1983 litigation for damages unless they take a specialized upper-level course. The whole area is left to a few obscure academics (me included) who have an interest in both public and private law. Yet this kind of litigation is ubiquitous in the federal courts. Beginning with Monroe, a 1961 case, its rise can be attributed in part to the growth of the regulatory state over the past fifty years, in part to the continuing elaboration of constitutional principles first articulated in the 1960s and 1970s, and in part to the Civil Rights Attorney’s Fee Awards Act of 1976. Public employees sue for mistreatment or dismissal in violation of their rights of free speech or due process, arrestees charge excessive force or illegal searches by the police, inmates claim abuse or neglect by guards, and so on.  Despite the practical importance of the constitutional law applied in these cases, constitutional law scholarship and casebooks pay little attention to it. More to the present point, torts scholars have ignored it as well.

             Opportunities abound to bring  the insights of tort theory to bear on the distinctive problems of constitutional tort law. When the constitutional claim involves the Fourth Amendment, for example, “reasonableness” is often the liability rule. Thus, police officers may be liable for excessive force but not for reasonable force in the circumstances. Just as in common law negligence, questions arise as to whether the judge or the jury should evaluate the officer’s conduct. While there are strong arguments for giving the jury a prominent role, it may be inappropriate simply to transplant common law judge-jury principles into constitutional tort. The problem is that case-by-case adjudication leaves the legal principle somewhat uncertain. This in turn gives rise to a defense of official immunity, which is available to police officers who commit constitutional violations unless they have violated “clearly established law.” A recent article addresses the issue. Another set of judge-jury issues come up in litigation over the free speech rights of public employees. Tort scholars interested in the general division of authority between judge and jury may find it interesting to consider whether and how the analysis of these issues should differ  in the constitutional tort context. Cause-in-fact, proximate cause, and affirmative duty issues also deserve attention  from scholars with a strong background in tort law.

            Besides these discrete areas of doctrine, the whole array of normative issues bearing on the aims of tort law are present in constitutional tort, and should be examined in light of the distinctive features of litigation seeking retrospective relief for constitutional violations. One of these is interplay between the immunity doctrine and the “incentives” goal of tort liability. According to the Supreme Court, the aims of constitutional tort include vindicating constitutional rights and deterring constitutional violations, but those aims must be compromised in view of the  need to avoid unduly deterring officers from acting boldly in the public interest.  The official immunity defense attempts  to achieve a balance between effective enforcement and too much enforcement. But immunity makes deterrence far harder to achieve in constitutional tort law, simply because it countenances some number of constitutional violations. A tort theorist might ask whether the current doctrine achieves the optimum balance. One problem is that Harlow v. Fitzgerald defines immunity in objective terms, thereby allowing some officers to escape liability even though they act in bad faith. In other instances,  there is no effort at all to deter. Officers engaging in judicial, prosecutorial, or legislative functions enjoy absolute immunity. In addition, one can question  the whole project of trying to deter misconduct by government through liability rules, given that governments can foist off the costs of their actions on taxpayers and may respond more to political pressures than to damage awards. Daryl Levinson briefly discusses this and other deterrence-related problems here (see pages 367-73).  Torts theorists who favor viewing the liability rules as a means of encouraging proper behavior may find it worthwhile to ask whether and how their approach could be adapted to the constitutional tort context.

             An alternative to official liability, advanced by Peter Schuck almost thirty years ago,  is to accept the need for official immunity, and instead borrow from enterprise liability theory (see pages 100-21).  In this view  governments would be liable for the constitutional torts committed by officers in the course of their duties, just as enterprise liability holds firms liable for injuries generated by their business. While enterprise liability aspires to deter, by giving the enterprise incentives to control its workers, its hallmark is assuring the compensation of victims. Schuck’s thesis underlies a vast literature that criticizes the Supreme Court’s ruling in Monell v. Department of Social Services,  which rejected respondeat superior liability on the part of municipal governments for their employees’ constitutional violations. From the perspective of tort theory, one might concede the case for enterprise liability in ordinary tort law and at the same time question its application to constitutional torts. Arguably, the problem is that the analogy between the two areas is flawed. Enterprise liability starts from the premise that out-of-pocket losses ought to be spread as widely as possible, in order to minimize the harm caused by accidents. If the reported cases are a reliable guide, constitutional torts do not typically produce large out-of-pocket losses. For the most part the injury produced by a constitutional violation is intangible and cannot be spread around, any more than emotional distress can be spread by liability for common law torts.  I merely want to raise the issue and suggest that tort theorists could contribute to its resolution. Perhaps I am wrong in doubting the enterprise liability approach, and in any event I am sure that more empirical work needs to be done on this and many other constitutional tort topics.

              John Goldberg and Benjamin Zipursky’s civil recourse theory seems to me to be a more promising set of norms for constitutional tort. Professor Robinette may well be right to question the descriptive claims of civil recourse theory. I share Professor Jane Stapleton’s view that  civil recourse may be more effective as a  normative theory than as an account of the nature of tort law. Constitutional torts may be an especially attractive area for elaborating civil recourse norms, since constitutional violations or some subset of them would clearly qualify as “wrongs” for which recourse should be available. One of the issues that deserves attention is whether the preceding sentence should say “some” or “all.” Another concerns damages. Civil recourse favors “damages as redress” over “damages as indemnification.”  Whatever may be the better model for ordinary tort, redress seems a more appropriate goal than indemnification in constitutional tort, on account of  the intangible nature of many constitutional injuries.  In short, civil recourse provides  plenty of resources for torts scholars interested in  contributing to the development of constitutional tort.

--Mike Wells, Marion and W. Colquitt Carter Chair in Tort and Insurance Law, Georgia School of Law

November 8, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Friday, November 5, 2010

Personal Injury Roundup No. 85 - November 5, 2010

Apologies for the break in the Roundup.

From New England, where I'm dealing with an ear infection (and now understanding why my kids wailed like someone was jabbing them with a sharp stick when they had ear infections):

New Suits

  • Bedbugs lead to lawsuits lead to bad publicity.  (Crain's New York)
  • Suit claims Toyota required silence as condition of buying back cars with alleged unintended acceleration issues.  (
  • Medical care provider sued in claim it failed to prevent prison suicide.  (Yakima Herald)
  • Major liability predicted in death of Notre Dame videographer.  (Forbes/SportsMoney)


  • Starbucks prevails in hot-tea double-cupping lawsuit.  (Reuters)

Reform, Legislation, Policy

  • NY Times opines against money in judicial elections.  (New York Times)

Trials, Settlements and Other Ends

  • Delaware county settles wrongful shooting case with victim's roommate.  (Star News Online)


  • Johan Santana seeks dismissal of sexual assault lawsuit brought by anonymous plaintiff. (ESPN New York)
  • Happy 1,000th post to friend-of-Torts-Prof Eric Turkewitz!  (Even if he still could use a shorter blog name; might I suggest "Eugene"?)  (New York Personal Injury Attorney Blog)
  • We'd like your nominations for senior TortsProfs from whom we can get inspiration.  (TortsProf)


November 5, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, November 4, 2010

Monday's Guest Blogger: Mike Wells


Michael L. Wells is the Marion and W. Colquitt Carter Chair in Tort and Insurance Law at the University of Georgia School of Law. His recent scholarship includes a new edition of Constitutional Torts (with professors Tom Eaton and Sheldon Nahmod) and Constitutional Remedies (with Professor Eaton). He has also published numerous articles in such leading journals as the Cornell Law Review, Duke Law Journal, Virginia Law Review, Georgia Law Review, William & Mary Law Review, Constitutional Commentary and Yale Journal of International Law.

Select recent articles include: "A Common Lawyer's Perspective on the European Perspective on Punitive Damages" in the Louisiana Law Review (2010), "State-Created Property and Due Process of Law" in the Georgia Law Review (2009) (with Alice Snedeker), "Scott v. Harris and the Role of the Jury in Constitutional Litigation" in Review of the Law (2009), "International Norms in Constitutional Law" in the Georgia Journal of International and Comparative Law (2004) and "Proximate Cause and the American Law Institute: The False Choice Between the 'Direct Consequences' Test and the 'Risk Standard'" in the University of Richmond Law Review (2003).

Wells is fluent in French and has served as a visiting professor at the University of Lyon (III) in Lyon, France, on six occasions and as a professor in the Duke-Geneva Institute in Transactional Law. He is a member of the American Law Institute.

Wells earned his bachelor's and law degree from the University of Virginia, where he served as articles editor for the Virginia Law Review. He clerked for Judge John D. Butzner Jr. of the U.S. Court of Appeals for the 4th Circuit and practiced with the law firm of Covington & Burling in Washington, D.C., for two years before joining the law faculty at the University of Georgia.  He has also served as a visiting professor at the College of William & Mary and Boston University, and has been a visiting scholar at the University of Aix-Marseille in Aix-en-Provence, France.

November 4, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)