TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, February 29, 2016

Feldman on Compensating the Victims of Japan's Fukushima Disaster

Eric Feldman has posted to SSRN Compensating the Victims of Japan's 3-11 Fukushima Disaster.  The abstract provides:

Japan’s March 2011 triple disaster — first a large earthquake, followed by a massive tsunami and a nuclear meltdown — caused a devastating loss of life, damaged and destroyed property, and left hundreds of thousands of people homeless, hurt, and in need. This article looks at the effort to address the financial needs of the victims of the 3/11 disaster by examining the role of public and private actors in providing compensation, describing the types of groups and individuals for whom compensation is available, and analyzing the range of institutions through which compensation has been allocated. The story is in some ways cause for optimism — billions of dollars have been spent compensating millions of individuals and businesses, in most cases through extra-judicial channels that have minimized the need for protracted, expensive litigation. But this article also reveals a compensation structure that excludes large numbers of potential claims by privileging the losses of nuclear accident victims over those of earthquake and tsunami victims; describes a system in which those potentially eligible for compensation must navigate an overly complex institutional matrix for pursuing their claims; and discusses an increasing amount of litigation by individuals and groups within and beyond Japan that has clouded the compensation landscape. In short, post-Fukushima compensation is both laudable and lamentable, relying upon arbitrary distinctions between deserving and undeserving victims and leaving many victims unpaid and discontent, but also succeeding in managing a large number of claims.

February 29, 2016 in Scholarship | Permalink | Comments (0)

Thursday, February 25, 2016

Kazis on Mixing Tort and Crime in Traffic Cases

Noah Kazis has posted to SSRN Tort Concepts in Traffic Crimes.  The abstract provides:

Legal scholars have long understood tort and criminal law as parallel mechanisms for sanctioning private behavior. Most have also sought to keep them separate. In the context of traffic crime, however, the line between tort and criminal law is blurring, as criminal law takes on significant features of tort doctrine. This Comment, using New York as a case study, shows that the border between tort and crime has disintegrated distinctively and dramatically in the traffic-crash context. All three branches of New York government have imported tort concepts into traffic crimes, thus redefining basic criminal-law doctrines throughout the criminal code — reaching even the law of homicide. This Comment also suggests that the consistent application of tort frameworks to traffic crimes shows a shared, if unspoken, consensus that traffic crashes should be understood in the register of tort.

February 25, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, February 24, 2016

JOTWELL Torts: Bublick on Abraham & White, Robinette on Prosser

Over at JOTWELL, Ellie Bublick has reviewed Ken Abraham and Ted White's Prosser and His Influence and my first Prosser Letters piece.

February 24, 2016 in Scholarship, Weblogs | Permalink | Comments (0)

Tuesday, February 23, 2016

Dismissal Motion in Sandy Hook Families' Suit Against Gun Manufacturers

Yesterday a judge in Bridgeport Superior Court heard arguments over dismissing the lawsuit filed by families of victims of the Sandy Hook Elementary School shooting against manufacturers of the AR-15.  In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), which broadly shields gun manufacturers from liability.  One of the exceptions to immunity is negligent entrustment:

In a 48-page brief arguing against dismissal of the case, attorney Josh Koskoff is trying to establish that the common law theory of negligent entrustment applies to the introduction of the AR-15 into the market by the Bushmaster Firearms International, the manufacturer of the weapon used by Adam Lanza in his shooting spree inside the school that left 26 people, including 20 children, dead.

"Their argument is what is negligent here is not selling the gun by the gun shop but what is negligent here is releasing the weapon into the market in the first place," Georgia State University Law Professor Timothy Lytton said.

In his brief, Koskoff argues that the AR-15 has no business being sold to civilians, that it was made for the military and "is built for mass casualty assaults" and to deliver "more wounds, of greater severity, in more victims, in less time."

A ruling is not expected soon.  The Hartford Courant has the story.

February 23, 2016 in Current Affairs | Permalink | Comments (0)

Monday, February 22, 2016

Baker on Aggregate Settlements and Attorney Liability

Lynn Baker has posted to SSRN Aggregate Settlements and Attorney Liability:  The Evolving Landscape.  The abstract provides:

This Article was prepared for the Hofstra Law Review conference on "Lawyers as Targets: Suing, Prosecuting, and Defending Lawyers."

Over the past several decades, attorneys involved in mass tort settlements, especially those representing the plaintiffs, have faced an increasing number of large-dollar liability claims centered on the aggregate settlement rule: that is, the state equivalents to Rule 1.8(g) of the ABA Model Rules of Professional Conduct. During this period, courts have held that fee forfeiture, potentially totaling millions of dollars, is an appropriate remedy for violations of the Rule, even in the absence of any demonstrated harm to the client. At the same time, courts and other authoritative bodies have expressed a variety of often conflicting views regarding the obligations that the Rule imposes on attorneys and when the Rule applies, resulting in much uncertainty and little guidance for attorneys.

This Article offers both positive and normative clarification. It provides a thick description of the current interpretations of the aggregate settlement rule in order to identify the specific areas of disagreement among authorities. It goes on to offer a normative theory of the Rule and its purpose, which could usefully mitigate the current interpretive confusion regarding which settlements are "aggregate settlements" and what client disclosures are mandated by the Rule.

February 22, 2016 in Conferences, Scholarship | Permalink | Comments (0)

Friday, February 19, 2016

Murchison on Speech and Truth-Seeking Value

Brian Murchison has posted to SSRN Speech and Truth-Seeking Value.  The abstract provides:

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities — survival, progress, and character — without insisting on truth in an absolute or transcendent sense. Third, the law’s current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value’s limitations, focusing on the complex setting of campaign finance.


February 19, 2016 in Scholarship | Permalink | Comments (0)

Thursday, February 18, 2016

PA: Crash on I-78

This past Saturday morning on Interstate 78, there was a terrible 64-vehicle crash that injured 73, including 3 fatalities.  Many people cited a "whiteout" of snow as one of the causes.  Weather, however, is a relatively rare cause of automobile accidents.  According to local data, nearly 80 percent of accidents occur when there is no rain, sleet, fog, or snow.  There were 109,000 accidents in 7 local counties between 2009 and 2014 and less than 6% of them occurred during snow or sleet (nationally, AAA states that 3.4% of accidents occur on snow-covered roads).  On the other hand, aggressive driving was a factor in 64,000 of 109,000 accidents, and distracted driving was also a large contributor.  Pennlive has details.

February 18, 2016 in Current Affairs | Permalink | Comments (1)

Wednesday, February 17, 2016

ProPublica: "When a Brain Surgeon Becomes a Malpractice Attorney"

Monday, February 15, 2016

The Personal Injury Claims Process--Comparing Legal Cultures

In conjunction with the British Institute of International and Comparative Law, Ken Oliphant is presenting "The Personal Injury Claims Process--Comparing Legal Cultures" on March 3 in London:

Event Description:

 At a time when the personal injury claims process in England and Wales lurches from one controversy to another, it is timely to ask what lessons can be learnt from how personal injury claims are resolved elsewhere. This event presents the results of a detailed comparative investigation of the claims process in three legal systems, based on extensive interviews with practitioners in each. The three legal systems looked at are England and Wales, Norway and The Netherlands – three legal systems with contrasting traditions, liability laws and approaches to compensation for personal injury in general. The study shows that, though some aspects of the claims process are constant across national boundaries, there are pronounced differences in attitude which reflect – in varying degrees – differences in liability rules, procedural mechanisms, legal institutions and wider culture. 
The research was conducted on behalf of the Institute for European Tort Law, Vienna, which teams up with the British Institute of International and Comparative Law for this event. The project was led by Ken Oliphant, former Director of the Vienna Institute, now Professor of Tort Law at the University of Bristol, in collaboration with teams of researchers at Cardiff University, the University of Bergen, and Erasmus University Rotterdam. In the course of the research, over 80 lawyers, judges and claims handlers gave in-depth interviews about their roles in the process and the specific challenges they face, and these interviews provide the basis for the presentations to be given at the event.
4 pm    First Session
            Welcome, by Duncan Fairgrieve, BIICL (5 mins)
            Introduction to the research, by Ken Oliphant, University of Bristol (5 mins)
PI Claims in Norway, by Morten Nadim and Jørn Øyrehagen Sunde, University of Bergen (20 – 25 mins)
PI Claims in The Netherlands, by Siewert Lindenbergh, Erasmus School of Law, Rotterdam (20 – 25 mins)
5.15     Coffee Break
5.30     Second Session
PI Claims in England and Wales, by Annette Morris, Cardiff Law School (20 – 25 mins)
Comparing Legal Cultures: Lessons for England and Wales, by Ken Oliphant, University of Bristol (20 – 25 mins)
7 pm    Drinks Reception
Location: Holdsworth Library, British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP
Thursday 3 March, 4 to 5.15 and 5.30 to 7 pm

February 15, 2016 in Conferences | Permalink | Comments (0)

Friday, February 12, 2016

Dillbary on Causation

Shahar Dillbary has posted to SSRN Causation Actually.  The abstract provides:

The article debunks the consensus that in concerted action, concurrent causes and alternative liability situations, the actual causation requirement is missing. While courts and scholars insist that in these cases tort law holds liable parties who clearly did not cause the victim’s harm, this article offers a novel approach. Using a simple model and applying it to leading decisions, it shows that a party who did not and could not even potentially injure the victim could nevertheless be a but-for reason for the harm. The article also challenges claims that causation theories like concerted action, substantial factor and alternative liability are fair to the victim or that they are designed to deter actors from engaging in “antisocial” activities. In deviation from the prior literature, this article reveals that these causation theories reduce the parties’ incentives to take care and result in more, rather than fewer, accidents. This article further shows that, despite lip service to the contrary, tort law promotes harmful activities that judges declare immoral, antisocial and illegal. The article argues, however, that in many cases this result can be justified on efficiency grounds. The article concludes that the but-for test should have a larger role in causation analysis, and it provides a number of policy recommendations to courts and lawmakers.

February 12, 2016 in Scholarship | Permalink | Comments (0)

Thursday, February 11, 2016

"Defences in Unjust Enrichment"

Hart Publishing is delighted to announce the publication of
‘Defences in Unjust Enrichment’
edited by Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith
We are pleased to offer you 20% discount on the book
To order online with your 20% discount please click on the link below the title and then click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’
Alternatively, please contact Hart Publishing’s distributor, Macmillan Distribution Limited, by telephone or email (details below) quoting ref: CV7
Defences in Unjust Enrichment
Critical and Comparative Essays
Edited byndrew Dyson, James Goudkamp
and Frederick Wilmot-Smith
This book is the second in a series of essay collections on defences in private law. It addresses defences to liability arising in unjust enrichment. The essays are written from a range of perspectives and methodologies. Some are doctrinal, others are theoretical, and several offer comparative insights. The most important defence in this area of the law, change of position, is addressed in detail, but many other defences are treated too, as well as the interrelations between these defences within the law of unjust enrichment. The essays offer novel claims and ways of looking at problems in this challenging area of legal study.
Andrew Dyson is an Assistant Professor in Private Law at the London School of Economics and Political Science.
James Goudkamp is a Fellow of Keble College and an Associate Professor in the Oxford Law Faculty.
Fred Wilmot-Smith is a Prize Fellow at All Souls College, Oxford and Lecturer in Law at Balliol College.
January 2016   360pp   Hbk   9781849467254  RSP: £75
Discount Price: £60
If you would like to place an order you can do so through the Hart Publishing website website (link below). To receive the discount, please click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’.
Alternatively, please contact Hart Publishing’s Distributor, Macmillan Distribution Limited, by telephone or e-mail and quote reference CV7 when placing your order.
Macmillan Distribution (MDL), Brunel Road, Houndmills, Basingstoke, RG21 6XS, UK
UK ORDERS: Tel: +44 (0)1256 302692    Fax: +44 (0)1256 812521 / 812558      E-mail:
EU AND ROW ORDERS: Tel: +44 (0)1256 329242    Fax: +44 (0)1256 842084    E-mail:

February 11, 2016 in Books | Permalink | Comments (0)

Wednesday, February 10, 2016

More Evidence Medical Errors Are Commonly Systemic

In 1999, the Institute of Medicine published "To Err is Human:"

One of the report’s main conclusions is that the majority of medical errors do not result from individual recklessness or the actions of a particular group--this is not a "bad apple" problem. More commonly, errors are caused by faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them.

A new study from Lebanon suggests that conclusion may hold for other country's malpractice problems as well:

Most medical errors are the result of broader failures of the country’s health care system and not individual negligence, according to an upcoming report from the American University of Beirut Faculty of Health Sciences.

The Daily Star has the story.

February 10, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, February 9, 2016

Richmond on Fraud and Misrepresentation Claims Against Lawyers

Doug Richmond has posted to SSRN Fraud and Misrepresentation Claims Against Lawyers.  The abstract provides:

When lawyers allegedly err in the course of clients’ representations, or, worse, allegedly engage in deliberate misconduct of some sort, aggrieved clients may sue for professional negligence, commonly described as legal malpractice, or for breach of fiduciary duty. A lawyer who treats a client dishonestly may face liability on one of these theories. Lawyers’ alleged dishonesty in their practices exposes them to potential liability to third-parties as well. For example, if a lawyer knowingly and substantially assists or encourages a client’s wrongdoing, those who are harmed by the client’s misconduct may sue the lawyer in tort for allegedly aiding and abetting the client’s misdeeds. Yet, while the consequences of lawyers’ alleged dishonesty should be apparent, lawyers seldom think themselves to be at risk for liability based on fraud or misrepresentation arising out of clients’ representations. This perspective probably traces at least in part to common notions of litigation practice, where parties generally cannot base fraud claims on opposing lawyers’ misrepresentations. Any comfort lawyers derive from this impression, however, overlooks three key points. First, lawyers may be sued for fraud or negligent misrepresentation by adversaries in litigation in some instances, as where, for example, they knowingly misrepresent material facts in negotiations. Second, transactional practice is such that business lawyers are natural targets of fraud and misrepresentation claims by third-parties based on false statements and failures to disclose information. Third, clients may sue their own lawyers for alleged fraud and negligent misrepresentation in appropriate cases.

In fact, fraud and misrepresentation are common theories of liability in suits against lawyers by both clients and third-parties. These claims pose an array of challenges for the targeted lawyers. Fraud claims may support punitive damage awards in cases where such damages would not otherwise be recoverable, or open the door to discovery that a court might refuse if only the lawyer’s professional negligence was in dispute. Because the presence of fraud normally is a question of fact, well-pleaded fraud claims are difficult for defendants to defeat at the motion to dismiss stage. Similarly, a claim for negligent misrepresentation is ordinarily one for a jury, unless the undisputed facts are so clear as to permit only one conclusion, thus devaluing a motion to dismiss as a defense tactic in many cases. Again because fraud and negligent misrepresentation claims are fact-intensive, a plaintiff may be able to avoid summary judgment and, by thus forcing the defendant to weigh the risk of trial, achieve a favorable settlement. Fraud and misrepresentation claims are particularly valuable to plaintiffs who cannot establish the existence of an attorney-client relationship with a lawyer-defendant because they avoid the general requirement of privity for liability based on professional negligence.

This Article examines lawyers’ and law firms’ potential civil liability for fraud and negligent misrepresentation. Part II provides an overview of the common law causes of action available to potential plaintiffs. After exploring these causes of action, it examines the role that rules of professional conduct play in establishing a standard of care or conduct, or the reasonableness of a plaintiff’s reliance on a lawyer’s misrepresentations. Part III discusses four illustrative negligent misrepresentation and fraud cases against lawyers, two arising out of litigation matters and two arising out of lawyers’ transactional practices. Finally, Part IV offers lawyers some practical advice on avoiding potential liability for fraud and negligent misrepresentations.

February 9, 2016 in Scholarship | Permalink | Comments (0)

Monday, February 8, 2016

Rabin on Intangible Damages

Bob Rabin has posted to SSRN Intangible Damages in American Tort Law: A Roadmap.  The abstract provides:

This paper is meant to provide a succinct roadmap to the many pathways taken in providing recovery for intangible harm in tort. The paper was initially prepared for a comparative law conference, and in that setting, I assumed a lack of close familiarity with the historical origins and surprisingly broad expanse of recovery for intangible harm in American tort law. While succinctly presented, the present revised treatment, for those conversant with the US system, is meant to be comprehensive, addressing defamation and privacy, no-fault and tort reform, as well as the more conventional common law topics of intangible damages in cases of intentional and accidental harm.

February 8, 2016 in Scholarship | Permalink | Comments (0)

Friday, February 5, 2016

Should Physicians Be Afraid of Tort Claims? Empirical Evidence

Gijs Van Dijck (Tilburg University) has posted to SSRN Should Physicians Be Afraid of Tort Liability? Reviewing the Empirical Evidence.  The abstract provides:

Do tort claims, or the fear of them, result in the adoption of practices aimed at protecting against tortious liability? Legislators, courts, and legal scholars often seem to think so, but is there empirical evidence to support this assumption? This article provides an answer to this question for the field of medical practice. An analysis of empirical studies on defensive medicine raises doubts as to whether the assumption holds true. The findings indicate that the empirical evidence is weak and that, if there is a concern about defensive practices, it seems to exist primarily in physicians’ minds. The results contribute to a better understanding of how tort law works, what effects it has on behaviour, and whether legal actors, especially at the intersection of law and medicine, should give credence to the defensive practices concern.

February 5, 2016 in Scholarship | Permalink | Comments (0)

Wednesday, February 3, 2016

Kaye's Law of Torts Webby Book

Tim Kaye (Stetson) has founded Webby Books (web e-books).  From his e-mail:

The first Webby Book to be published is my own Law of Torts. Further details about it can be found here:

The electronic equivalent of an inspection copy may be requested here:

Webby Books have been rigorously tested over a lengthy beta period with several classes of both full-time and part-time students, and have received rave reviews.

Unlike so may other e-books, Webby Books are not just glorified PDFs, but are designed from the ground up as free-standing websites. This means that they can make use of online technology to an extent that far surpasses anything that law books have provided hitherto.

They contain not just case well-chosen extracts, but also a helpful commentary with references that hyperlink to original sources. They are accompanied by numerous tables, diagrams and charts, which can be enlarged as each user desires without loss of definition.

Students and professors can annotate and highlight Webby Books as they wish. They can even leave and respond to comments next to any passage of text. A forum facilitates broader discussions, where the ability to hyperlink to any paragraph in the Webby Book can also be utilized.

Webby Books are optimized for both mobile and other touch-enabled devices, so they can be used literally wherever a user has an internet connection. The color scheme and fonts have been chosen to minimize eye-strain and to facilitate use by those with dyslexia.

While anyone may purchase a Webby Book subscription, substantial discounts are available for students whose professors adopt them as class texts.

Further details of Webby Book are available here:

February 3, 2016 in Books, Teaching Torts | Permalink | Comments (0)

Tuesday, February 2, 2016

Long on Lawyers as Public Figures in Defamation Cases

Alex Long has posted to SSRN The Lawyer as Public Figure for First Amendment Purposes.  The abstract provides:

Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can also see more clearly some of the complexities the legal profession now faces and the sometimes uncertain nature of its role.

February 2, 2016 in Scholarship | Permalink | Comments (0)

Monday, February 1, 2016

Zipursky to Give 2016 Monsanto Lecture

On Thursday, Ben Zipursky will give the Monsanto Lecture at Valparaiso University.  His topic:  "Civil Recourse and Pragmatic Conceptualism in Tort Theory:  The Case of Online Defamation."  For more information or to RSVP, go here.

February 1, 2016 in Conferences, TortsProfs | Permalink | Comments (0)

Bernstein on Gender in Asbestos Law

Anita Bernstein has posted to SSRN Gender in Asbestos Law:  Cui Bono?  Cui Pacat?.  The abstract provides:

The large literature about liability for asbestos exposure has, for the most part, omitted gender. This omission matters. Men and women who sought redress in court fared very differently, and the two genders have shared unequally in the spoils of asbestos litigation and regulation. Here I ask: Cui bono? Cui pacat? In other words — English words — this Article investigates who has gained from and who has paid for the transfer of wealth put in motion by asbestos law.

February 1, 2016 in Scholarship | Permalink | Comments (0)