TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, January 31, 2012

Of New Preps and Casebooks

For the first several (roughly 5) years I was a law professor, I taught the same course package.  In a prior life I was a litigator and so I taught a litigation package.  We have two semesters of Torts here and I taught Torts I and Torts II.  I also taught Evidence and Professional Responsibility.  I enjoy all of these courses.  There is definitely an advantage to retaining the same courses; you learn the material thoroughly and you can focus more resources on scholarship. 

This year, 3 of my 4 courses are new preps.  In the last year and a half, I have taught 4 new courses.  I have added Insurance, Products Liability, Contracts I and Contracts II.  I have enjoyed the new material, and I feel like it has given me a better understanding of tort law.  For Insurance and Products Liability, that makes a lot of sense given how related they are.  It also applies to Contracts.  Teaching Contracts helps map the boundary between the two topics. 

In teaching the new courses, I have been delighted with my casebook selection.  In Insurance, I use Ken Abraham's "Insurance Law and Regulation (5th ed. 2010)."  The book is well-organized and I like the inclusion of actual insurance policies.  In Products Liability, I am using David Owen, John Montgomery, and Mary Davis's "Products Liability and Safety (6th ed. 2010)."  I'm still making my way through it, but the first chapter provides a number of perspectives on products and the subsequent organization is good.  The notes are thorough and engaging.  Moreover, the authors of these 2 books are very helpful.  In Products, both David and Mary have offered guidance on syllabi, paper topics, and guest speakers.  In Insurance, Ken Abraham once responded to an e-mail question in 15 minutes...from Paris. 

For my Torts casebook, I use Marc Franklin, Robert Rabin, & Mike Green's "Tort Law and Alternatives (9th ed. 2011)" and have used that book from the beginning.  I like it a lot.  It is thorough and the case selection is engaging.  In the future, I may try another casebook simply for the sake of variety.  Two casebooks that have caught my eye:  Tom Galligan, Phoebe Haddon, Frank Maraist, Frank McClellan, Mike Rustad, Nicholas Terry, and Stephanie Wildman's "Tort Law:  Cases, Perspectives, and Problems (4th ed. 2007)" and John Goldberg, Tony Sebok, & Ben Zipursky's "Tort Law:  Responsibilities and Redress (2nd ed. 2008)."


January 31, 2012 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2012

Smith on "Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder"

Deirdre Smith (Maine) has a recent article that just came out in the Temple Law Review, "Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder."  The abstract provides:

This Article examines the origins of the unique relationship between the psychiatric diagnosis Post-traumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry’s standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM) - and is the focus of significant controversy within psychiatry - because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person’s symptoms, a practice more commonly associated with the law. In short, the diagnosis uniquely medicalizes liability. The law has turned to PTSD, on the erroneous assumption that its location in the DSM signifies that it is well-settled science, to serve as a mechanism to resolve difficult problems in assessing legal responsibility. These uses include determining whether a criminal complainant is credible and when emotional distress from another’s negligence is sufficient in itself to serve as a basis for liability. However, by adopting PTSD’s conceptualization of causation of psychological injury, courts unknowingly delegate normative determinations of liability to psychiatry broadly and to the individual psychiatrists who present PTSD evidence at trial. I argue that the legal system should consider PTSD’s origins and its persistent controversies as part of a broader reexamination of the role of the diagnosis in the law.

Thanks to Jennifer Wriggins for the alert.




January 30, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

Sharkey on Economic Analysis of Punitive Damages

Cathy Sharkey (NYU) has posted to SSRN Economic Analysis of Punitive Damages:  Theory, Empirics, and Doctrine.  The abstract provides:

This chapter — to be included in Research Handbook on the Economics of Torts (Arlen ed., Kluwer, forthcoming 2012) — assesses economic rationales for punitive damages in light of contemporary empirics and doctrine. The primary economic rationale for supra-compensatory damages is optimal deterrence (or loss internalization): when compensatory damages alone will not induce an actor to take cost-justified safety precautions, then supra-compensatory damages are necessary to force the actor to internalize the full scope of the harms caused by his actions. Alternative economic rationales — disgorgement of ill-gotten gains and enforcement of property rights — have been proposed to align the theory with the historical and conventional focus of punitive damages on intentionally wrongful behavior.

Notwithstanding its academic prominence, the economic deterrence rationale has not dominated doctrine. In fact, the U.S. Supreme Court has all but rejected economic deterrence, by instead placing increasing emphasis on a competing retributive punishment rationale. But, since punitive damages lie squarely within the purview of state law, state legislatures and courts possess a degree of freedom to articulate state-based goals of punitive damages — such as economic deterrence — even in the face of heavy-handed federal constitutional review imposed by the U.S. Supreme Court.


January 25, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 24, 2012

Register for "Mass Torts in the Federal Courts" - Charleston, Feb. 24th

The Federal Courts Law Review at the Charleston School of Law is sponsoring a symposium on "Mass Torts in the Federal Courts" on February 24, 2012, in Charleston.

Ken Feinberg will be giving the keynote address. Panels will address preemption, aggregation issues in mass torts, and ethical issues surrounding fees and settlements in mass tort cases.   Speakers include Lynnn Baker (Texas), Alexandra Lahav (UConn), Linda Mullenix (Texas), Morris Ratner (Hastings), and Cathy Sharkey (NYU).

Registration is now open:  Download Mass Torts 2012 Registration Form

A copy of the agenda is also available:   Download SymposiumMailer-1-1

- SBS 

January 24, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, January 23, 2012

Pfizer Seeks Zoloft Birth Defect MDL

The Legal Intelligencer reports that Pfizer has asked the U.S. Judicial Panel on Multi District Litigation to consolidate over 50 cases filed in PA, NY, IL, MS, MO and OH.   The cases involve Zoloft, which the plaintiffs allege caused birth defects in the patient's children.  Pfizer has requested the Southern District of New York for the MDL forum. The full story is behind a registration block. 

- SBS 

January 23, 2012 in MDLs and Class Actions | Permalink | Comments (1) | TrackBack (0)

Friday, January 20, 2012

Burger King, Spit, and Emotional Damages in Products Liability

A suit over a burger, spat upon by an employee of Burger King, resulted in the Ninth Circuit certifying a question to the Washington Supreme Court.  Plaintiff developed an uneasy feeling after receiving a Whopper with cheese.  When he lifted the bun, he saw a "slimy, clear and white phlegm glob" on the burger.  The glob was tested and was a DNA match with one of Burger King's employees, who pled guilty to felony assault.  Plaintiff claims ongoing emotional distress.  The district court granted judgment on the pleadings to Burger King.  On appeal, the Ninth Circuit certified the following question:  “Does the Washington Product Liability Act permit relief for the emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated food product?”
The case is available here.  (Link has been fixed)
Thanks to Susan Raeker-Jordan for the tip.

January 20, 2012 in Food and Drink, Products Liability | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Licari on Enforcing Punitive Damage Awards in France after Fountaine Pajot

François-Xavier Licari has posted Enforcing Punitive Damage Awards in France after Fountaine Pajot on SSRN. The abstract provides:

In a landmark ruling, the Cour de cassation held that 'an award of punitive damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate punitive damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American punitive damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.






January 19, 2012 in Damages, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 18, 2012

Quandaries of Civil Recourse: Calnan Replies to Goldberg & Zipursky

Last month, Alan Calnan posed four quandaries for John Goldberg's and Ben Zipursky's civil recourse theory.  John and Ben responded last week.  Alan now replies:


First, I would like to thank the editors of TortsProf blog for hosting this discussion. In my view, there is no better use of a blog than to provide a forum for robust and immediate debate on important and timely topics. Kudos to Chris, Bill & Sheila for running a great site.

Next, I must thank John Goldberg & Ben Zipursky (G&Z) for taking the time to respond to my prior post. Despite their prolific output as scholars and frequent appearances as speakers and panel presenters, they consistently have answered their critics with diligence and grace. For this alone, they deserve special commendation.

But G& Z also deserve recognition for the candor of their post. In it, they both clarify points raised by their past work, and address new issues previously left unexamined. Unfortunately, their responses do not resolve the quandaries surrounding their civil recourse theory of torts. Instead, their answers only raise more questions; and these questions, in my view, only raise more doubt about the validity of their view as currently constructed.

In this post, I will outline some of the remaining conundrums. For the sake of clarity, my replies will follow each of G&Z’s responses below. I apologize in advance for the length of my reply, but big issues invite big answers.

For Rylands and abnormally dangerous activities, we accept that there is strict liability of a form that can only be categorized as “wrongs-based” if one relaxes the meaning of “wrongs” so greatly as to deprive it of meaning; as to these torts, we accept that a wrongs-based framework is incomplete.   However, we have argued that: (a) all of the other putative areas of strict liability – products, vicarious liability, trespass torts, etcetera -- are actually wrongs-based in a significant sense; (b) the Rylands et al constitute only a very small fragment of all of tort law; (c) even as to Rylands et al., they fall into a hybrid category something like promissory estoppels in contract or strict liability in criminal law, such that there were good reasons for courts to take a position that essentially abandoned a critical feature of the law in a narrowly limited area, while still counting cases as being part of that area.  

G&Z purport to offer only a descriptive or interpretive account of the tort system. They seek to explain what tort law is and does, not what it should be. In response to my first quandary, they argue that Torts is a system of wrongs because instances of true strict liability are relatively rare and tangential. This is not a new contention. They argued the same points in their article Torts as Wrongs. In my view, G&Z employ a flawed methodology (not objectively reporting the facts but subjectively and selectively manipulating them) to reach an inaccurate conclusion (that true strict liability is rarer than it actually is). I already have provided detailed explanations of both errors in prior articles (What’s Wrong With Torts as Wrongs [SSRN] and The DisTORTed Reality of Civil Recourse Theory [forthcoming Cleveland State Law Review]), so I will not elaborate on them here.

Nevertheless, two points require special emphasis. Even if true strict liability is relatively uncommon, prevalence alone is an extremely weak metric for determining its importance. The known universe consists of 75% dark energy, 20% dark matter and 5% matter. No scientist (who, like G&Z, seeks to accurately describe and explain the way things are) would dismiss matter as insignificant merely because of its rarity, and no scientific theory that excluded matter would be taken seriously. Matter possesses enormous significance because of its longevity (it’s been around since the Big Bang) and potency (it holds the power to create and sustain life). The same holds true for strict liability. According to conventional wisdom, Torts originated in medieval England from a primitive form of strict liability. The abnormally dangerous version of this theory—i.e., the one G&Z recognize as “true” strict liability—has been around for 150 years and has been adopted by virtually every state in the country. As for its potency, strict liability accounts for one-half of Torts’ bifurcated liability spectrum (which ranges from fault to no-fault) and one-third of its theoretical infrastructure (intentional torts, negligence & strict liability). It also poses the greatest threat to liberty. Unlike negligence, strict liability does not simply regulate the small details of a single act. It burdens and restricts entire categories of human activity. Given the magnitude of its impact, strict liability is a lot like capital punishment: it may not be invoked very often, but everyone always knows it’s there. Indeed, in a wrongs-based system like Torts, its existence should attract special concern. True strict liability destroys fault. When it arrives, wrongs disappear. Where it lives, wrongs die. If wrongs are vital to Torts, shouldn’t the admittedly aberrant but undeniably lethal fault-eating strict liability virus be studied and explained with even greater care and vigor, and not casually dismissed as irrelevant?

According to G&Z, much of strict liability is not antithetical to fault at all, but rather consists of wrongs cloaked in strict liability garb. If this is true, the judges who created tort law must be either unwittingly or willfully responsible for the mislabeling. Are we to believe that jurists from different states and countries intentionally set out to obfuscate the law over a period of centuries? If so, for what purpose? Is it to sow confusion and doubt, increase appeals, and surreptitiously strengthen their imprimatur on the law? Alternatively, must we assume that these same judges consistently mistook wrongs for strict liability without ever discovering their error, or the errors of their predecessors, or ever attempting to do anything about it? Experience and common sense show otherwise. Shortly after adopting strict products liability, many courts recognized that design and warning defect actions were essentially negligence cases in disguise. Rather than continue the charade, they changed the law by abolishing strict liability and permitting only theories of negligent design and warning. The Restatement (Third) of Torts: Products Liability officially eradicated the misbranding just thirty years after it began.

There is only one way to determine whether or why such misbranding occurs, or what the tort system is meant to be. It’s not by counting theories, reinterpreting words, or consulting legal commentaries. Rather, it’s by asking the judges themselves. Their answers may not all be candid, and their sample size may be relatively small (given the larger, historical context of the common law), but they alone control the law’s form and content. Unless and until G&Z tap Torts’ source, how can they claim to know its essence? It’s just as well that they’ve forgone this quest, because I doubt they’d like what they find. I suspect judges, like tort scholars, see Torts not as a unified system of wrongs hidden behind a veil of meaningless and misleading verbiage, but as a multifaceted system with diverse policy objectives and a corresponding, transparent commitment to liability without fault.


Continue reading

January 18, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 12, 2012

Legos & Harry Potter

We traveled to Orlando last weekend.  My wife and I ran the Disney Half Marathon, and then she ran the Disney Full Marathon the next day, because she is Capital-C Crazy.  And amazing.

But first we went to LegoLand, which reminded me of this excellent (if nitpickable) Lego stop-motion telling of Palsgraf.  I showed it in my Torts class last night:


We also went to the Wizarding World of Harry Potter, a remarkable theme park within the already-remarkable Islands of Adventure.  I particularly enjoyed the way they even themed the warning signs, perhaps increasing the number of people who will actually read them:



January 12, 2012 in Teaching Torts, Travel | Permalink | Comments (0) | TrackBack (0)

Goldberg & Zipursky Respond to the Quandaries Facing Civil Recourse Theory

In December, Alan Calnan offered four quandaries facing John Goldberg's and Ben Zipursky's civil recourse theory.  John and Ben have responded:

It should be said in advance that Alan Calnan has been a consistent and thoughtful critic of civil recourse theory over the past several years.   Like John Finnis, Jane Stapleton, Ernest Weinrib, and many others, Profesor Calnan is among those to whom we have delayed too long in responding.  But better late than never.  

What follows is each of Alan's points, followed by John's and Ben's response.

1.  How can civil recourse theory be viewed as an accurate, complete, and unified description of tort law when it ignores both the numerous instrumental (nonwrongs-based) theories of strict liability, and the pervasive instrumental (nonwrongs-based) considerations actively shaping and transforming wrongs-based theories like negligence?

 For Rylands and abnormally dangerous activities, we accept that there is strict liability of a form that can only be categorized as “wrongs-based” if one relaxes the meaning of “wrongs” so greatly as to deprive it of meaning; as to these torts, we accept that a wrongs-based framework is incomplete.   However, we have argued that: (a) all of the other putative areas of strict liability – products, vicarious liability, trespass torts, etcetera -- are actually wrongs-based in a significant sense; (b) the Rylands et al constitute only a very small fragment of all of tort law; (c) even as to Rylands et al., they fall into a hybrid category something like promissory estoppels in contract or strict liability in criminal law, such that there were good reasons for courts to take a position that essentially abandoned a critical feature of the law in a narrowly limited area, while still counting cases as being part of that area.  

 As to instrumental considerations actively shaping the nature of what the courts or legislatures are willing to count as “wrongs,” there is no reason to treat this important phenomenon as inconsistent with a wrongs-based account.  

2.  How can the right to sue (take recourse) in tort be premised on the existence of a legal wrong if (1) the determination of a legal wrong typically is not made until long after the action is filed, and (2) often (in at least 50% of tried cases) results in a finding that no wrong in fact was done?

The right to sue does not come from having been wronged.  The right to exact a remedy is premised on having been legally wronged.  The right to sue is a procedural right afforded to those who have a good faith belief (for which they can supply some articulate basis) that they have a right to exact a remedy. 

3.  How can tort law best be understood as empowering victims to rectify civil wrongs (as stated in the panel summary) when the very purpose of both the law’s substance (which specifies things the plaintiff MUST prove to rectify a wrong) and its procedure (which specifies things the plaintiff MUST do to pursue such rectification) is to create impediments for the party seeking recourse and protections for the party being sued?

Challenge 3 is largely responded to by Response 2, above.  We must add, however, that the legal system recognizes procedural rights to defend oneself against those asserting a right to exact a remedy.  There is no inconsistency in recognizing both sorts of rights.  The state does not generally mean to put impediments there for those who have a right to exact a remedy.  It means to put protections there for those who are subject to demands by those alleging they have such a right.  Obviously, our system aims to design the procedural rights to sue and the procedural protections from liability in such a way that they facilitate the provision of remedies for those who were in fact wronged and only for those.   Affirmative defenses like statutes of limitation and immunities and assumption of risk will require a variety of other explanations, which we (and others, such as Jason Solomon) have undertaken to provide.

4.  How does the “constitutional” right to civil recourse square with the historic due process right to protect citizens from arbitrary state action, including presumably the state’s action of taking sides in a private dispute by hosting and facilitating one party’s unproven, liberty-infringing (civil) attack against another?

The state is only supposed to take sides in tort suits in the way that courts take sides in adjudication generally.  It is – at least at a general level -- part and parcel of thinking someone has legal rights not to be mistreated in various ways that the legal system will not typically remain indifferent to a proven claim that such a legal right by one person was infringed by another, but will entertain a demand for recourse by one whose legal right so infringed against the infringer.  So long as the state continues to prohibit non-civil responsive conduct by those who have been wronged or mistreated or whose rights have been infringed, the state’s being willing to act responsively, in civil litigation, to such a demand strikes me as more consistent with the state maintaining a stance of non-arbitrariness or neutrality as between private persons than: (A) prohibiting non-civil  responsive conduct by victims, and: (B) remaining passive in the face of civil demands for redress (assuming that many tortuous wrongs are not actionable except for civil tort actions).   The latter stance strikes me as arbitrarily favoring injurers over victims.


January 12, 2012 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 11, 2012

Hammontree v. Jenner: Photos!

Kyle Graham (Santa Clara) just happened to be in the area where the automobile accident occurred that resulted in Hammontree v. Jenner.  He snapped pictures of the intersection and the store that now stands where the bicycle shop once stood.

Hammontree Intersection

More at CoOp:


January 11, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2012

TortsProf Professors of the Year

Congratulations to these TortsProfs, who won "Professor of the Year" at their schools in 2011:

Kevin Brown (Indiana-Bloomington), Andy Klein (Indiana-Indianapolis), Christina Bohannan (Iowa), Mary Davis (Kentucky), Kyle Graham (Santa Clara), and John Watts (Texas Tech).  Did I miss anyone?

Also congratulations to Geoff Rapp (Toledo) on his new chair; he is the Harold A. Anderson Professor of Law and Values.


January 10, 2012 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, January 9, 2012

The Barrister Blog

I have to give a shout out to Dean Lisa Smith-Butler for the new blog launched by the Charleston School of Law Library: The Barrister.   The blog contains case notes, research tips and interesting news items.


January 9, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, January 7, 2012

Symeonides's Annual Choice of Law Survey (2011) available here.


January 7, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 6, 2012

Feinberg Freezes BP Payments Over "Common Benefit Fees" Fund

George Conk has the story at TortsToday.


January 6, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

For the John Grisham In You.....

An interesting writing contest sponsored by the Journal of Legal Education, Southwestern Law School, and the AALS:  the first JLE Legal Fiction Contest.

Submissions must be original short works of fiction related to law school or the practice of law, and winning entries will be published in a future issue of the JLE. 

The contest is open to lawyers and non-lawyers, academics and non-academics - anyone setting a fictitious story in a legal setting (law school, law firm, courtroom, legislature, judge's chambers, etc.) or focusing on a law-related character (lawyer, law professor, judicial clerk, etc.). According to Marshall Goldberg, "The long hours, the ethical conflicts and the differing notions of justice all force hard choices upon law students, practitioners, judges and academics - and these struggles can make powerful fiction."  

Submissions must be in prose form (no screenplays or scripts), previously unpublished, under 5,000 words (approximately 20 typewritten pages) and submitted by March 15, 2012. Entries will be reviewed anonymously and judged on originality, quality of writing and depth of character. The ten winners will be announced in June 2012, and their stories will be published in the Journal of Legal Education: The Fiction Issue in early 2013. Additionally, the ten winners and ten runner-up entries will be posted online. Authors will retain copyright ownership.




January 6, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 3, 2012

Shades of Palsgraf

A gory Illinois case holds that a man who was killed by a train as he was rushing to catch another one should have been able to foresee that his flying body might injure a person waiting at the platform.  The Chicago Tribune has the details.

Thanks to Geoff Rapp (Toledo) for the tip.


January 3, 2012 in Current Affairs | Permalink | Comments (0) | TrackBack (0)