TortsProf Blog

Rustad & Koenig on Cybertorts

Mike Rustad and Tom Koenig have published "Rebooting Cybertorts for the Internet of Things" in The Harvard Law Record.  A sample:

This unbalanced cybertort jurisprudence has the effect of padlocking the courthouse door to most Internet-related injuries. After Concepcion and Italian Colors, expect even more one-sided consumer arbitration agreements. Such TOU would be rejected in the European Union, which gives consumers the right to pursue justice in their home courts. These mandatory arbitration agreements are essentially an anti-remedy for Internet users because the cost of arbitration will almost always exceed the monetary amount that is at stake. Plus, with class action waivers, there is no aggregation of claims.

It is time for Congress to step in and protect consumers in cyberspace from a new generation of defective products—driverless cars and other connected devices that are part of the Internet of Things.

Cybertort remedies need to evolve further to provide consumers remedies for runaway cars, inadequate security, and misuses of big data. Driverless cars have the potential to all but eliminate driver error.  However, connected cars also raise numerous privacy and security concerns. If a car manufacturer assembles massive amounts of data, there is an increased risk that this big data may be misused, compromising the privacy of consumers. Security vulnerabilities in autonomous cars may enable attacks on sensors that notify drivers of dangerous road conditions or could be used to disable the vehicles’ steering and brakes. A compromised vehicle could be used to launch denial of service attacks on other vehicles.

PA: Regulation and Litigation in the Trump Era

Joel Berg, editor of the Central Penn Business Journal, discusses in "Regulation is dead; long live litigation?".  

Can Tribal Employees Avoid Tort Claims?

Two people were injured in an off-reservation  auto accident with a Mohegan Tribe-owned limousine.  The Connecticut Supreme Court ruled that the tribe's sovereign immunity protected the driver from tort claims arising from the accident.  Now the USSC has agreed to hear the case.  Two weeks ago, lawyers for the plaintiffs argued that Native American tribes’ sovereign immunity does not shield tribal employees from tort claims brought against them in their individual capacities.  Law 360 has the story.

Compliance with ABA Standard 314: Formative Assessment in Large Classes

Institute for Law Teaching & Learning and Emory University School of Law

Spring Conference 2017 

“Compliance with ABA Standard 314: Formative Assessment in Large Classes” is a one-day conference for law teachers and administrators who want to learn how to design, implement, and evaluate formative assessment plans.  The conference will be interactive workshops during which attendees will learn about formative assessment techniques from games to crafting multiple choice questions to team-based learning.  Participants will also learn ways to coordinate assessment across the curriculum.   The conference workshop sessions will take place on Saturday, March 25, 2017, at Emory University School of Law.

Conference Content:  Sessions will address the following topics:

Why Assess: Empirical Data on How it Helps Students Learn

Games as Formative Assessments in the Classroom

Formative Assessment with Team-Based Learning

Creating Multiple Choice Questions and Ways to Using Them as Formative Assessment

Coordinating Formative Assessment Across the Curriculum

Conference Faculty:  Workshops will be taught by experienced faculty: Andrea Curcio (GSU Law), Lindsey Gustafson (UALR Bowen), Michael Hunter-Schwartz (UALR Bowen), Heidi Holland (Gonzaga) and Sandra Simpson (Gonzaga)

Who Should Attend:  This conference is for all law faculty and administrators.  By the end of the conference, attendees will have concrete and practical knowledge about formative assessment and complying with Standard 314 to take back to their colleagues and institutions.

Registration Information:  The registration fee is $225 for the first registrant from each law school.  We are offering a discounted fee of $200 for each subsequent registrant from the same school, so that schools may be able to send multiple attendees.  Registration is here: https://emorylaw.wufoo.com/forms/institute-for-law-teaching-learning-conference/

Accommodations:  A block of hotel rooms for conference attendees has been reserved at the Emory Conference Center Hotel for $159/night; at the Courtyard by Marriott in downtown, Decatur for $99/night; and at the Decatur Holiday Inn for $159/night.  Reservation phone numbers are : Emory Conference Center Hotel: 1-800-933-6679; Courtyard by Marriott Downtown Decatur:  www.marriott.com or 1-404-371-0204; Holiday Inn Hotel Decatur 1-888-HOLIDAY.

FL: R.J. Reynolds Argues Engle is Preempted, Violates Due Process

R. J. Reynolds is arguing to the Florida Supreme Court that Engle is preempted by FDA v. Brown & Williamson Tobacco Corp. to the extent that Florida state tort law threatens to ban the sale of cigarettes.  Moreover, Reynolds argues that applying Engle to all subsequent cases is a violation of due process.  Florida Record has the story.

Goldberg & Zipursky on Intermixture of Fault and Strict Liability

John Goldberg & Ben Zipursky have posted to SSRN The Strict Liability in Fault and the Fault in Strict Liability.  The abstract provides:

Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort law, we isolate “the fault in strict liability” — that is, the fault line between the wrongs-based form of strict liability that is frequently an aspect of tort liability and the wrongs-free form of strict liability that is found only within the very narrow domain of liability for abnormally dangerous activities. We conclude by defending these two features of the common law of tort: the strictness of the terms on which it defines wrongdoing and its begrudging willingness to recognize, in one special kind of case, liability without wrongdoing.

(Via Solum/LTB)

PA: General Contractor Immune from Drilling Site Death Suit

The Pennsylvania Superior Court affirmed a trial court ruling that a general contractor is immune from suit for the death of a worker at a drilling site.  The subcontractor paid workers' comp to the worker's fiancé on behalf of his son, and the worker's estate filed a negligence suit against the general contractor.  The estate argued that because the general contractor was leasing the land, it should be designated a property owner rather than a general contractor.  The court rejected the estate's argument based on its interpretation of Pennsylvania's workers' comp statute.  Law 360 has the story.

The Liability of Public Authorities in Comparative Perspective

Ken Oliphant has edited a new book, The Liability of Public Authorities in Comparative Perspective:

In recent decades, the liability of public authorities has been one of the main areas of development in and at the edges of tort law in Europe, with major reforms implemented or considered at a national level, and a steady stream of major court decisions. During the same period, ‘Member State liability’ has also been recognised in the law of the EU, and the interplay of principles of national and EU law – and additionally the ‘just satisfaction’ jurisprudence of the European Court of Human Rights – evidently warrants close attention. In this context, the aims of the present study are to contribute to the understanding of the law of extra-contractual liability as it applies to public authorities in the legal systems of Europe (and selected non-European jurisdictions), to facilitate its enhancement where necessary or desirable, and to consider the possibilities for harmonisation in the area – specifically, through the extension and adaptation of the Principles of European Tort Law to cover public authority liability.

Mike Green and Jonathan Cardi describe doctrines in the United States.  The flyer is here:   Download E-flyer liability of public authorities

Damages and Compensation Culture

Hart Publishing announces Damages and Compensation Culture by Eoin Quill and Raymond J. Friel:

The focus of the essays in this book is on the relationship between compensation culture, social values and tort damages for personal injuries. A central concern of the public and political perception of personal injuries claims is the high cost of tort claims to society, reflected in insurance premiums, often accompanied by an assumption that tort law and practice is flawed and improperly raising such costs. The aims of this collection are to first clarify the relationship between tort damages for personal injuries and the social values that the law seeks to reflect and to balance, then to critically assess tort reforms, including both proposals for reform and actual implemented reforms, in light of how they advance or hinder those values. Reforms of substantive and procedural law in respect of personal injury damages are analysed, with perspectives from England and Wales, Canada, Australia, Ireland and continental Europe. The essays offer valuable insights to anyone interested in the reform of tort law or the tort process in respect of personal injuries.

This flyer includes a 20% discount:  Download Quill_Friel

Wells on Heffernan v. City of Paterson

Michael Wells has posted to SSRN What did the Supreme Court Hold in Heffernan v. City of Paterson?.  The abstract provides:

As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan’s First Amendment rights despite the lack of speech on his part. Or it may have ruled that the City is liable on § 1983 “official policy” grounds, even though it violated no constitutional right. This article examines each of these and argues that neither withstands scrutiny. A more convincing rationale for the outcome is that the Court in effect recognized a constitutional common law right. Alternatively, the arbitrary demotion may support recovery under the Equal Protection Clause on a “class of one” theory, though Jeffrey Heffernan did not pursue that approach and current doctrine seems hostile to it.

(Via Solum/LTB)

Notices of Claim Against East Chicago Officials Over Lead- and Arsenic-Contaminated Soil

Approximately 250 residents of East Chicago, Indiana have filed notices of claim against several officials, including Vice President-elect Mike Pence, alleging the officials knew of lead- and arsenic-contaminated soil but did nothing to prevent future exposure:

The pending lawsuits — filed Oct. 27 — claim city and state officials knew about the pollution at the construction of the 346-unit West Calumet Housing Complex, built in 1972.  

The complex and Carrie Gosch Elementary School sit on about 50 acres of the roughly 400-acre USS Lead Superfund site. Soil testing in the area began decades ago. Two lead smelter operations also once operated on the site of the public housing complex and the school, according to EPA documents.

(nwi.com has the story)

The Trump Administration and Preemption

Some thoughts by James Beck at JDSupra Business Advisor.

Institute for Law Teaching and Learning Summer 2017 Conference

The Institute for Law Teaching and Learning announces its Summer 2017 Conference, "Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302," at the University of Arkansas at Little Rock William H. Bowen School of Law on July 7-8, 2017:

The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,”  such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.”  The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills.  The deadline to submit a proposal is February 1, 2017. 

Call for Proposals:   Download CFP Summer 2017 Bowen Conference

Baker, Helland, & Klick on Texas Med Mal Settlements

Tom Baker, Eric Helland, and Jonathan Klick have posted to SSRN Everything's Bigger in Texas:  Except the Medmal Settlements.  The abstract provides:

Recent work using Texas closed claim data finds that physicians are rarely required to use personal assets in medical malpractice settlements even when plaintiffs secure judgments above the physician's insurance limits. In equilibrium, this should lead physicians to purchase less insurance. Qualitative research on the behavior of plaintiffs suggests that there is a norm under which plaintiffs agree not to pursue personal assets as long as defendants are not grossly underinsured. This norm operates as a soft constraint on physicians. All other things equal, while physicians want to lower their coverage, they do not want to violate the norm and trigger an attack on their personal assets. This constraint should be less effective when physicians have other ways to shield their assets, such as through large personal bankruptcy exemptions like those available in Texas. Settlement data from the National Practitioner Data Bank indicate that settlements in Texas are abnormally low, just as they are in other jurisdictions with unlimited homestead exemptions in bankruptcy. Consistent with theory, we find that more generous exemptions are also associated with lower insurance prices and lower levels of insurance coverage. These results suggest that the large "haircuts" and low insurance limits observed in the Texas data may be driven by Texas's generous bankruptcy provisions. At a minimum, Texas is not generally representative of other jurisdictions. This weakens the case for extrapolating conclusions from Texas data to other jurisdictions.

Corporate Liability Under the ATS

Plaintiffs in Jesner v. Arab Bank have filed a petition for cert with the USSC, asking for a resolution of the issue whether the Alien Tort Statute permits corporate liability for violations of the law of nations:

The question the Jesner plaintiffs, represented by Stanford Law School and two law firms, now ask the Court to address is the question left unanswered in Kiobel: whether a corporation, as opposed to a natural person, can be found liable under the ATS. The certiorari petition notes that several Courts of Appeal—by a margin of, according to the petition, “four to one”—have decided that the ATS permits corporate liability. Plaintiffs also argue that the Supreme Court’s decision in Kiobel suggests (or appears to suggest) that the ATS contemplates corporate liability. The petition disputes what it describes as the Second Circuit’s outlier position that, following Kiobel’s introduction of the “touch and concern” test, the issue of whether the ATS allows corporate liability will “rarely” matter. In support, and among other arguments, the petition points to another case currently making its way through the Second Circuit, involving terror financing allegations against another financial institution. 

Lexology has details.

VA: Rolling Stone Liable for Defamation of UVa Administrator

On Friday, a federal jury in Charlottesville, Virginia determined that Rolling Stone defamed a University of Virginia administrator in its story about the gang rape of "Jackie" at a fraternity party:

The 10-member jury in Charlottesville sided with administrator Nicole Eramo, who claimed the article portrayed her as a villain. Jurors found that journalist Sabrina Rubin Erdely was responsible for libel, with actual malice, and that Rolling Stone and its publisher were also responsible for defaming Eramo.

Eramo claimed the November 2014 article falsely said she discouraged the woman identified only as Jackie from reporting the incident to police. A police investigation found no evidence to back up Jackie's claims.

The Richmond Times-Dispatch has the story.

MI: Flint Residents Can Sue State Over Water Contamination

Last week, a Michigan Court of Claims judge ruled that residents of Flint can sue the state for the lead contamination in their water supply.  The Detroit News has the story.

 

Sebok on Causation

Tony Sebok has posted to SSRN Actual Causation in the Second and Third Restatements:  Or, the Expulsion of the Substantial Factor Test.  The abstract provides:

This chapter contrasts the Restatement (Third) of Torts: Liability for Physical Harm’s Chapter Five (on Factual Cause) and Chapter Six (on Scope of Liability) with the treatment of causation in the Restatement (Second) of Torts’ Chapter 16 (“Legal Cause”). It was written for a book on causation in both common law and civilian jurisdictions.

The chapter examines in some detail the arguments that led the Reporters of the Third Restatement to reject the expression “substantial factor” and how the work done by this phrase in the domain of cause-in-fact was handled by and expanded conception but-for causation to which was added the idea of the “causal set model”, or NESS Test. The work done by the phrase “substantial factor” in the domain of proximate cause is now done by the concept of “scope of the risk” and variants of the risk rule.

The chapter emphasizes the seriousness with which the Third Restatement sought to remove from the question of cause-in-fact any subjective judgment it deemed a matter of proximate cause. The chapter points argues that this focus on rendering cause-in-fact judgments purely objective, when combined with the causal set model, produces a final product where much of the normative work that was once done in causation is now pushed off into questions of apportionment.

JOTWELL Torts: Scheuerman on Janssen on a Duty to Sell Life-Saving Medicine

Over at JOTWELL, Sheila Scheuerman has a review of William Janssen's A "Duty" to Continue Selling Medicines.