TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, August 31, 2011

Wright's Causation Trilogy

Richard Wright (Chicago-Kent) has posted to SSRN three pieces on causation.  First, The Ness Account of Actual Causation:  A Response to Criticisms.  The abstract provides:

The NESS (necessary element of a sufficient set) account of natural (scientific, ‘actual’, ‘factual’) causation is usually acknowledged to be a more satisfactory and comprehensive account than the traditional sine qua non (‘but for’) account. However, objections have been raised to the claim that the NESS account fully captures the concept of natural causation and properly handles all types of situations. Various types of counter-examples have been proposed. More fundamentally, it is argued that the NESS account is viciously circular, since causal terminology often is used in its elaboration and it relies upon the concept of causal laws.

Many of the objections raised against the NESS account assume that it is essentially the same as Herbert Hart’s and Tony Honoré’s ‘causally relevant factor’ account and John Mackie’s INUS account. In section II of this chapter I distinguish these three accounts, which differ in important ways that make the latter two accounts vulnerable to objections to which the NESS account is immune, and I offer an account of causal laws that I believe rebuts the claim that the NESS account is viciously circular. In section III I argue that the NESS account handles properly the various types of situations that have been raised as alleged counter-examples to its comprehensive validity.

Second, Proving Causation:  Probability Versus Belief.  The abstract provides:

One of the frequently assumed major differences between civil law and common law systems is the standard of persuasion applied by each in civil (non-criminal) cases. In most civil law jurisdictions, it is commonly assumed that the standard of persuasion is the same for criminal and civil proceedings. The plaintiff in a civil case, as well as the prosecutor in a criminal case, must provide sufficient proof to convince the trier of fact of the truth of the facts at issue on the particular occasion. Although it is recognised that absolute certainty is impossible to achieve, the required degree of belief is often expressed in terms of a virtual certainty, or at least a very high probability. However, a mere statistical probability, no matter how high, will not suffice in the absence of the required conviction or belief in the truth of the facts at issue.

In common law jurisdictions, there is an explicit distinction between the standard of persuasion in criminal and civil proceedings. In criminal proceedings, the standard is very high: the prosecutor must prove the defendant’s guilt ‘beyond a reasonable doubt’. In civil proceedings, however, the plaintiff generally only needs to prove his case by the much lower standard of a ‘preponderance of the evidence’ (the usual formulation in the United States) or a ‘balance of probability’ (the usual formulation in the British Commonwealth and Scandinavia). Both standards are often interpreted by academics, and sometimes by judges, as merely requiring a 50 per cent probability. For both standards, as so interpreted, it would be better to employ the term ‘standard of proof’ rather than ‘standard of persuasion’, since the latter implies an element of conviction or belief that is lacking when all that is involved is a class-based statistical probability.

I have argued that the supposed major differences between the standards of persuasion in common law and civil law jurisdictions are greatly overstated. I retrace that argument in section II of this paper. I conclude that, in general, the common law as well as the civil law continues to view the applicable standards of persuasion in civil as well as criminal actions as requiring the formation of a belief in the truth of the facts at issue in the particular case, rather than a mere class-based statistical probability, and that concrete ‘particularistic evidence’ specific to the particular case is necessary to support such a belief. Although the available evidence is slim, I also conclude that in the civil law as well as the common law the strength of the required belief is lower in civil actions than in criminal actions.

In section IV of this paper, I consider various types of problematic causal situations that courts around the world have struggled to deal with in recent decades. Clear recognition of the issues in these cases and their proper resolution has often been hindered by an unanalysed assumption that the standard of persuasion in civil actions is a mere statistical probability standard, which however is not consistently applied, since doing so would generate significant problems and paradoxes. The considerable confusion that now exists could and should be greatly reduced simply by replacing the highly misleading phrases ‘more likely than not’ and ‘balance of probability’, and even the less misleading phrase ‘preponderance of the evidence’, with ‘a minimal belief’.

Third, The Nightmare and the Noble Dream:  Hart and Honore on Causation and Responsibility.  The abstract provides:

In Causation in the Law (1959), Hebert Hart and Tony Honoré attempted to set forth a set of allegedly causal principles, supposedly deeply embedded in ordinary thought, for identifying causes and attributing legal responsibility. This attempt is quite puzzling given the remarkable contradiction between its premises and the strict positivist theory of law that Hart was simultaneously engaged in elaborating and defending, which insists on the lack of any necessary connection between law and morality.

What accounts for this remarkable contradiction? I believe that it was generated by Hart’s attempt, in both Causation in the Law and his writings on legal positivism, to defend law and legal reasoning against the rule skepticism and legal nihilism that he (erroneously) attributed to the American legal realists. Hart initially rejected the argument, which he described as a noble dream (but later partially accepted), that the nightmare of legal nihilism could be avoided or reduced by resort to the purposes or principles that underlie legal rules and judicial decisions. He instead attempted to apply his own version of the noble dream in Causation in the Law. As a recent and devout convert to J.L. Austin’s “ordinary language analysis” approach to philosophy, he hoped to rebut the claims of the legal nihilists by identifying and articulating, through analysis of ordinary language as employed in and outside the law, “common sense” principles of causation embedded in ordinary thought that encompass not only the issue of natural causation but also attributions of legal responsibility.

The abject failure of this attempt was clearly perceived by philosophers and no doubt lead to the rapid decline of ordinary language philosophy. Unfortunately, it was not perceived by many in the legal community, but rather continues to engender confusion regarding the concept of causation and its relation to moral and legal responsibility.


August 31, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Yalof Garfield on Texting, Tweeting and Slander

Leslie Yalof Garfield (Pace) has posted her recent article, The Death of Slander, on SSRN. The abstract provides:

Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone’s reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person- to-person communication. Texting, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise.

At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical reality that is no longer accurate. Originally, permanence and breadth of dissemination always coincided. Slander carried only as far as one's voice. Because of slander’s presumed evanescence, common law required plaintiffs to plead special damages - proof of economic harm in order to recover for slander the advent of broadcast technology, with its ability to amplify the spoken word challenged the traditional division of defamation and forced courts and legislatures to reconsider old classifications. Jurisdictions split in their decision to characterize broadcast speech as libel or slander, largely because of divergent views about which aspect of the speech - permanence or breadth of dissemination - was more important. Post-broadcast technology has further complicated the defamation arena leaving parties unsure of how to best plead their defamation case.

In the past decade technology has again changed the way we communicate. The digital communication revolution has created instances of wide-spread dissemination through quick, non-reflective and often passing statements. This past year for example, Wael Ghonim’s tweet to join him in an Egyptian village square lead to the downfall of Egypt’s political powers. His fleeting comments to those willing to listen caused an entire nation to fall. This article considers how courts should rule when these tweets, or texts, not quite printed, not quite spoken, are defamatory.

This Article argues that the advent of texting, tweeting and other forms of digital communication, which I call technospeech, renders the medieval tort of slander irrelevant in today’s technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation. Treating all defamation similarly promotes fairness for plaintiffs seeking to rehabilitate their damaged reputation and provides predictability to those bringing defamation claims. A thoughtful and orderly treatment of technospeech mandates that courts and legislatures put the proverbial final nail in the coffin of slander.

As I noted at Faculty Lounge, twitter-libel suits are fairly common these days.



August 29, 2011 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Friday, August 26, 2011

Lessons of 9/11 for Mass Torts at Cardozo

Tony Sebok and Myriam Gilles at Cardozo have set up a conference on the 9/11 victim compensation fund and its relevance for mass torts.  The conference is September 12, 2011 at Cardozo and begins at 2:30 p.m.  Kenneth Feinberg is the keynote speaker; other speakers include Sheila Birnbaum, John Goldberg, Marc Moller, Linda Mullenix, Roger Parloff, Bob Rabin, and Judge Jack Weinstein.  The program is here.


August 26, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

Second-Hand Smoke Case Continues Against Housing Cooperative, Sans Punitives Claim

A resident of Greenbelt Homes in Maryland filed suit against the housing cooperative for failing to prevent his exposure to his neighbors' second-hand smoke.  The trial started on Monday and, while the negligence claim is continuing, the judge did dismiss the claim for punitive damages.


August 25, 2011 in Current Affairs, Damages | Permalink | Comments (1) | TrackBack (0)

Strauss-Kahn Still Facing Civil Suit

Though all criminal charges against him were dropped earlier this week, Dominique Strauss-Kahn still faces a civil suit from his accuser.  His attorneys say they are not concerned about it, noting that his accuser's credibility issues would still cause trouble in a civil suit, though of course the lower burden of proof mitigates that somewhat.


August 25, 2011 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Tuesday, August 23, 2011

Goldberg's Book for 1Ls

TortsProf John Goldberg and Barry Friedman have written a primer on succeeding in the first year of law school.  Entitled Open Book:  Succeeding on Exams from the First Day of Law School, it is available here.

Here are the reviews and description:


This is a book that will help law students get law school, not just law school exams. It really captures what it means to think like a lawyer. --Amy Coney Barrett, Professor, Notre Dame Law School

I would definitely recommend this book. It gives great advice to students who have no idea what to expect when they take their first law school exams. --Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law

No book is a guarantor of better results, but this one would certainly help the majority of students to add points to their exam results, and some students could literally turn their performances around by following the advice of this book. --Michael D. Murray, Associate Professor, Valparaiso University School of Law

Product Description

A concise, highly accessible guide to exam success. Provides an insider s view of what professors look for in exam answers, and how exam-taking connects to good lawyering. Accompanied by a Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).  


  • High-profile, experienced authors from elite schools with hands-on experience teaching the majority of the courses in the traditional 1L curriculum
  • Distinctive central pedagogy: the pinball method of exam-taking
  • Accompanied by Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).
  • Explains to students not just the how but the why of law school exams what makes law school exams different from exams students have encountered in other settings
  • Detailed examples provide concrete demonstrations of exam-taking techniques
  • Highly readable: prose is straightforward and humorous; key points accented with memorably amusing illustrations Not just an exam prep book; students are offered guidance on getting the most out of classes, and law school more generally.

I've glanced through the book, and it looks great.


August 23, 2011 in Books, Teaching Torts, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, August 22, 2011

RAND Report on "Asbestos Bankruptcy Trusts and Tort Compensation"

RAND Institute for Civil Justice has issued a new study on asbestos trusts and the current U.S. tort system: Asbestos Bankruptcy Trusts and Tort Compensation.  The summary provides:

Payments by asbestos bankruptcy trusts have played an increasingly important role in compensating asbestos injuries and have become a matter of contention between plaintiff and defense attorneys. At issue is how tort cases take into consideration compensation paid by trusts and the evidence submitted in trust claim forms. This monograph examines how such evidence and compensation are addressed by state laws and considered during court proceedings. It also examines how the establishment of the trusts potentially affects plaintiff compensation from trusts and the tort system combined, payments by defendants that remain solvent, and the compensation available to future, as compared to current, plaintiffs. The authors find that the potential effects of trusts' replacement of once-solvent defendants are very different in states with joint-and-several liability than in states with several liability. In states with joint-and-several liability, total plaintiff compensation should not change. In several-liability states, the replacement of once-solvent defendants by trusts can cause total plaintiff compensation to increase, decrease, or remain unchanged. The findings underscore the importance of information on plaintiff exposure to the products and practices of the bankrupt firms in determining the trusts' effects on plaintiff compensation and on payments by defendants that remain solvent.

A e-copy of the report can be downloaded or the report can be read on-line.   Catherine Dunn has a report on as well. 


August 22, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 17, 2011

Abraham on Strict Liability in Negligence

Ken Abraham (Virginia) has posted Strict Liability in Negligence.  The abstract provides:

This Article, written for a Symposium in honor of Robert Rabin, argues that some forms of liability imposed in negligence are more like strict liability than negligence. For example, under the objective standard of negligence, liability may be imposed even when the defendant was not capable of exercising what counts as reasonable care. Similarly, under certain circumstances reasonable care requires perfect compliance with precautionary requirements. Finally, the “thin-skull” rule imposes liability on a defendant who negligently risks harm to a foreseeable plaintiff even if the amount of harm this plaintiff suffers is far in excess of what was foreseeable. In the first example the defendant is liable even if he does his best. In the second example the defendant is liable unless he achieves perfect compliance. And in the third example the defendant is liable for something he could not foresee. Imposing liability for negligence in these situations resembles strict liability. At the least, these forms of negligence liability certainly are “stricter” than many others. The Article examines the rights-based and instrumental roles played by these forms of liability in reflecting norms of responsibility, reducing information and error costs, influencing activity levels, and promoting the insurance of losses.

The analysis has two implications. The first is that negligence is not the pure type of liability that it is sometimes thought to be. The existence within negligence of several forms of liability that are strict, or at least “stricter” than the core negligence paradigm, weakens the claim that negligence liability may have to moral superiority over strict liability. I argue that part of the reason negligence has maintained its dominance of accident law, and part of the reason strict liability has not become more dominant, is that negligence has incorporated stricter liability within it. The second implication of my analysis is that the normative character of tort liability is more complex, and perhaps more ambiguous, than either rights or instrumental theories standing alone can easily capture. One of the most interesting things about the instances of strict liability in negligence is that, whether we call them strict liability or deny them this status, there seems to be widespread agreement that they are normatively attractive. This confluence of support on the merits for doctrines whose status itself is contested suggests that tort law doctrines may need to satisfy both instrumental and rights-based concerns in order to be stable and persistent. A negligence system that purports to condition liability on the commission of wrongs, but also sometimes imposes stricter liability for conduct that is not so clearly blameworthy, would seem to be influenced in practice by the same instrumental considerations that support the imposition of strict liability. Conversely, instrumental justifications for tort doctrines are likely to be unpersuasive when these doctrines do not also satisfy rights-based concerns. Whether or not our system of accident law has mixed “goals,” then, it certainly appears to be subject to mixed side-constraints.



August 17, 2011 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Ryan on Remedying Wrongful Execution

Meghan Ryan (SMU) has posted to SSRN Remedying Wrongful Execution.  The abstract provides:

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however. This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.


August 17, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 15, 2011

The Latest Mass Tort: Your Sneakers

Not just any sneakers.  Skechers.  Those oddly balanced "fitness" shoes.  

BLT reports that a products liability suit has been filed in the United States District Court for the District of Columbia alleging that Skechers are an unreasonably dangerous product.   The plaintiff's counsel has stated that he plans to file similar suits shortly in Virginia, Utah and Georgia.  BLT has a copy of the complaint.


August 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 11, 2011

Amusement Safety

Two quick things about amusement parks:

  • First, Wiggin & Dana attorney Erik Beard has started a blog about amusement park law generally, and today he's posted about why, in his view, the founding fathers would be glad that there are widely varying amusement ride regulatory schemes.
  • Second, this weekend's episode of This American Life will be all about amusement parks.  I may or may not be in it -- I spent a day at Six Flags New England with a producer and did a few interviews with her, but it's still not entirely clear whether her segment will be in.  (It's a tight episode.)  But you should listen anyway.


August 11, 2011 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 10, 2011

Gardner on Civil Recourse Theory

John Gardner (Oxford) has posted to SSRN Torts and Other Wrongs, his contribution to the Florida State civil recourse symposium.  The abstract provides:

In this paper, a draft contribution to a symposium on the work of John Goldberg and Ben Zipursky, I take Goldberg and Zipursky to task for failing to distinguish the law of torts adequately from some neighbouring areas of private law. I focus on their equivocation on the question of whether reparative (a.k.a. compensatory) damages have a special place in the law of torts. I suggest that this equivocation is bound up with Goldberg's and Zipursky's wish to maintain what I argue to be an artificial rivalry between their 'civil recourse' explanation of tort law and the 'corrective justice' explanations associated with Weinrib, Coleman, and others. I suggest that 'civil recourse' and 'corrective justice' each capture part of the truth about tort law. I end by addressing briefly some doubts about whether this is a truth worth capturing.


August 10, 2011 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 9, 2011

Charleston Receives Full Accreditation

05_logo_200 I just have to mention our big news.  The Charleston School of Law  received full accreditation from the ABA last Friday!    

Our congrats to Drexel, which also received full accreditation on Friday.


August 9, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, August 8, 2011

Dead Men Can't Be Sued for Punitive Damages

The Iowa Supreme Court has reaffirmed its long standing rule (dating back to 1884) prohibiting punitive damages claims against deceased individuals.  The court reasoned that awarding punitive damages against an estate does not serve the purposes of punitive damages, which the court identified as (1) punishment, (2) specific deterrence, and (3) general deterrence.  Iowa's decision follows the majority rule on this issue.  (The opinion helpfully includes footnotes and citations discussing the majority/minority breakdown).

A copy of the court's opinion is here. The Des Moines Register has full coverage.

Thanks to How Appealing for the info.


August 8, 2011 in Damages | Permalink | Comments (0) | TrackBack (0)

Friday, August 5, 2011

Ripstein on Civil Recourse Theory and Corrective Justice

Arthur Ripstein (Toronto) has posted to SSRN Civil Recourse and Separation of Rights and Remedies, his contribution to the Florida State civil recourse symposium.  The abstract provides:

In developing their Civil Recourse theory of tort law, John Goldberg and Benjamin Zipursky seek to separate Civil Recourse from Corrective Justice by showing that tort law does not work in the ways in which corrective justice theory says that it must. The strategy of separation, in turn, rests on a separation between wrongs and remedies, a separation between ideas of risk and ideas of ordinariness, a separation between abstract characterizations of rights and contingent social norms, and, finally, a separation between a wrong done against the plaintiff and her power to exact a remedy. I argue that none of these separations can be made.


August 5, 2011 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

Sheila Guesting at the Faculty Lounge

Hey look, Sheila is also blogging as a guest at the Faculty Lounge!


August 4, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Battery, Assault, Or Just A Request for Courtesy?

The element of intent in battery, assault, and other intentional torts is one of the trickier concepts to teach. 

Now, via the Facebook page for the finest theaters in the land, Alamo Drafthouse, comes the story of Dale Fout and Brenda Godwin, who were both at a Dallas area theater (not the Alamo).Fout received a text and looked at it during the movie.  Godwin, annoyed, tapped him on the shoulder and asked him to put it away.  Fout responded...strongly, we'll say, telling her never to touch him and calling the police who, at his request, issued a citation for assault. 

While you contemplate whether the facts would support a civil claim for battery, enjoy the Alamo's outstanding (if not for kids) presentation of a voicemail it received from a woman who was kicked out for texting during a movie:




August 4, 2011 in Current Affairs, Film, Teaching Torts | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 3, 2011

PA: Bill to Require Dentists to Carry Malpractice Insurance

Sen. Pat Vance has introduced a bill requiring dentists to carry $3M in malpractice insurance (at a cost of about $2,400 a year).  The bill unanimously passed the state Senate.  It has not yet been taken up in the state House.  Pennlive has the story.


August 3, 2011 in Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)

Monday, August 1, 2011

South Carolina Punitive Damages Legislation Signed

Details here.  The law has a semi-flexible cap on punitive damages, with $500,000 or three times actual damages as the default, but with a safety valve provision to raise the cap to $2 million in certain situations.  Proponents argued that the legislation will increase businesses' desire to locate in the state.


August 1, 2011 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (2) | TrackBack (0)

Yaz MDL Case Management Order

Mass Tort Defense notes that the New Jersey state court has issued its case management order for the first bell wether trials in the Yaz MDL.


August 1, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)