TortsProf Blog

Avraham & Yuracko on Torts and Discrimination

Ronen Avraham and Kim Yuracko have posted to SSRN Torts and Discrimination.  The abstract provides:

Current tort law contains incentives to target individuals and communities based on race and gender. Surprisingly, the basis for such targeting is the seemingly neutral use of three different race- and gender-based statistical tables (for wages, life expectancy, and worklife expectancy) which, when used in tort damage calculations, result in a great disparity between damages awarded to whites versus blacks and men versus women. Thus, tort law’s remedial damage scheme perpetuates existing racial and gender inequalities by compensating individuals (especially children) based on their race and gender. Even worse, tort law creates ex-ante incentives for potential tortfeasors to engage in future discriminatory targeting of women and minorities. We provide the first full account of courts' existing discriminatory practices. We then address the deficiencies in the non-blended tables that courts use (tables that use race and gender as discriminating factors) and the reasons behind their continued use. We show how the various theories of tort law (corrective justice, distributive justice, and economic efficiency) have contributed to a misunderstanding of the proper damages calculation and illustrate how the very same theories can be used to engender a change in the current praxis. We then challenge the conventional wisdom that the use of race- and gender-based tables is justified on efficiency grounds, noting fatal flaws inherent in the tables, in how they are used in courts to calculate damages for individuals, and in the incentives they create. We reveal that similar discriminatory practices ironically exist in federal law, such as the Americans with Disabilities Act, the National Childhood Vaccine Injury Act, and even Title VII – whose goal is to combat gender and race discrimination. Finally, we propose a feasible, low-cost, logical solution that pushes toward a more efficient and less discriminatory tort law remedial system: courts should immediately terminate their use of non-blended tables.

“If the injured child were born to a mixed couple but looks black, like Barack Obama, I would use black tables [in the calculation of damages I present to the jury]. However, if he is educated, and his life style is similar to the average typical white, then I would be inclined to use white tables. It is all a matter of common sense.”

Goldman & Jin on Judicial Resolution of Nonconsensual Pornography Dissemination

Eric Goldman & Angie Jin have posted to SSRN Judicial Resolution of Nonconsensual Pornography Dissemination Cases.  The abstract provides:

Nonconsensual pornography dissemination has emerged as one of the key social issue of the digital age. In response, legislators are rapidly adding new laws to combat it. However, these laws supplement an extensive body of civil and criminal laws that already address many of the same concerns.

To get a better sense of the regulatory scope of the existing laws, we compiled eighty-seven enforcement actions involving nonconsensual pornography disseminations dating back to the 1980s. This compilation provides a useful baseline to critically evaluate any new laws against nonconsensual pornography dissemination.

Curcio on Sexual Assault on Campus and Tort Law

Andrea Curcio has posted to SSRN Institutional Failure, Campus Sexual Assault and Danger in the Dorms:  Regulatory Limits and the Promise of Tort Law.  The abstract provides:

Data demonstrates the majority of on-campus sexual assaults occur in dorm rooms. At many colleges, this fact receives little, if any, attention. This article discusses how schools' failure to raise awareness about, and develop risk reduction programs for, dorm-based assaults is another example of long-standing institutional failures when it comes to addressing campus sexual assault. Ignoring where most on-campus assaults occur provides students with a false sense of security in their dorms, limits the efficacy of bystander intervention programs, and results in scant attention and research directed at the efficacy of dorm-based awareness and risk-reduction efforts. This article suggests that just as Title IX claims have forced colleges to deal with how they handle sexual assault reports, negligence claims may motivate schools to address the issue of dorm-based assaults.

This article proposes framing claims against colleges for dorm-based campus sexual assault in a way that shifts the narrative from that of a few "bad boys" to one of institutional failure - a failure illustrated by schools' turning a blind eye to what is happening in their dorms. The article explores how this framing supports conceptualizing schools' duty to dorm residents based upon schools' superior knowledge about where the majority of assaults occur and their ability to exercise control over student living space. It suggests that tort negligence claims will bring attention to dorm-based assaults, and while certainly not solving the multi-faceted campus sexual assault problem, the threat of these claims may result in the development of additional effective campus sexual assault risk reduction efforts.

MO: Asbestos Transparency Bills

Twelve states have passed asbestos transparency laws requiring plaintiffs in asbestos suits to disclose claims they have filed with asbestos trusts.  In Missouri, such bills have been filed in both the House and Senate.  What's the rationale for such bills?

“We know from the Garlock bankruptcy case, as well as many case reports and studies that have come out, that withholding of plaintiff exposure evidence is widespread and problematic nationally, including in St. Louis,” Mark Behrens, a partner with the Washington, D.C., law firm Shook Hardy & Bacon, told the St. Louis Record.  

Behrens was referencing a nearly 4-year-old case involving Garlock Sealing Technologies in which it was alleged in a lawsuit that a handful of law firms representing asbestos plaintiffs in civil actions were untruthful about their clients’ exposures, telling different stories through filings with the bankruptcy trust system than were alleged through the suits.

The bills have until the end of May to be taken up by the legislature.  The St. Louis Record has the story.

Yuracko & Avraham on Race-Based Tort Damages

Kim Yuracko & Ronen Avraham have posted to SSRN Valuing Black Lives:  A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages.  The abstract provides:

In 2011, a young couple eagerly expecting the birth of their first child moved into an apartment in Brooklyn, New York, excited to have a new home for their growing family. Their child, a son, was born healthy soon thereafter. One year later, however, the couple received devastating news. A routine medical exam had detected lead in their young son’s blood. It turned out that the dust from lead paint in their new home had been quietly poisoning their baby. The family quickly moved out, but permanent damage to the baby’s central nervous system had been done. Over the next several years he would manifest significant cognitive delays as well as severe social and emotional impairments. The baby’s mother sued and the landlord was found negligent.

In calculating damages, the critical question for the jury was how much would this young child have earned over the course of his life had he not become injured. In answering this question, experts for both the plaintiff and the defendant took into consideration, albeit to different extents, the fact that the baby was Hispanic and used this fact to offer lower damage estimates than they would have had the baby been white. Relying on race-based data to calculate tort damages is, after all, standard practice. The only thing unusual about the case was that the judge, Jack Weinstein, of the Eastern District of New, refused to allow it.

Reporters Defend Restatement of the Law of Liability Insurance

The Restatement of the Law of Liability Insurance is up for approval by the membership at the ALI Annual Meeting next month.  Reporters Tom Baker and Kyle Logue have posted to SSRN In Defense of the Restatement of Liability Insurance Law.  The abstract provides:

For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. The Restatement of the Law Liability Insurance is the American Law Institute’s first effort to “restate” the common law governing such liability insurance policies, and we are the reporters. In a recent essay funded by the insurance industry, Yale Law Professor George Priest launched a strident critique of the Restatement project, arguing that the rules adopted in the Restatement (a) are radically contrary to existing case law, (b) have a naïve “pro-policyholder” bias that ignores basic economic insights regarding how insurance works, and (c) will, as a result of (a) and (b), lead to increases in liability insurance premiums and disruption in coverage, to the detriment of individuals and firms that need liability insurance. This essay argues that each of these claims is false. First, the Restatement rules all are grounded in existing law, and most already apply in most jurisdictions. Second, while the Restatement rules are premised on an exhaustive and detailed legal analysis, they also are informed by and consistent with modern economic and psychological research on how insurance markets work. By contrast, Priest’s critique ignores case law and relies on an unrealistic adherence to an outdated, pre-behavioralist model of economic rationality. Finally, because the underlying premises are untrue, Priest’s predictions of market disruption are analytically unsound, and he has not provided any evidence of problems in the insurance markets in which Restatement rules already apply that could provide an empirical foundation for these predictions.

Liability insurance companies have access to the best data that could prove or disprove such claims. If the insurance industry believes that broader application of the rules adopted in the Restatement will harm liability insurance markets, it should provide disinterested empirical legal studies researchers with access to the data needed to test that belief, rather than simply attacking the Restatement. The researchers can then use the data to evaluate the comparative effects of the legal rules among which the Restatement is choosing. As an industry that prides itself on sophisticated use of data and analytics, insurers should embrace the use of data to assess which legal rules are economically efficient, rather than simply making claims when there is a paucity of empirical evidence. As economically and empirically minded legal scholars, we would welcome such evidence, and we expect that the American Law Institute would as well.

IA: Senate Passes Med Mal Reform Bill to Reconcile with House

I reported last week that the Iowa House passed a med mal bill with a general cap of $250,000 on non-economic damages, but an exception for cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”  The Iowa Senate, having already passed the bill without the exception, passed a bill with the exception on Monday.  The bill now goes to Governor Branstad's desk.  He is expected to sign it.  The Des Moines Register has the story.

FL: Engle Tobacco Claims Not Preempted

On April 6, the Florida Supreme Court ruled, unanimously, that Congress's decision to regulate, but not ban, cigarettes does NOT preclude tort claims under state law.  The court reached the opposite conclusion from a 2015 Eleventh Circuit case, which held tort claims undermine the decision by legislators to keep cigarettes on the market.  The Eleventh Circuit is schedule to review its holding en banc, and a final ruling is still pending.  Courtroom View Network has the story. 

AALS Torts Section Call for Newsletter Items and Prosser Award Nominations

Dear Colleagues,

I hope this email finds you well. We are writing as the Secretary and Treasurer of the AALS Torts & Compensation Systems section to pass along two important notices.

1.  Torts and Compensation Section Newsletter

As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to [email protected]. The deadline for inclusion in this fall's newsletter is Friday, August 11, 2017.

2.  2018 William L. Prosser Award

This is the first call for nominations for the 2018 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Steve Sugarman, Aaron Twerski, Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in San Diego in January 2018.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than Friday, July 14, 2017. Please email submissions to [email protected].  

We will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach.  In the meantime, feel free to contact us if you have any questions.

All best,

Adam Scales and Scott Hershovitz

Lewis on Tort Tactics

Richard Lewis has posted to SSRN Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies The abstract provides:

This article reveals some of the tactics which lawyers may use when conducting personal injury litigation in the U.K. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.

JOTWELL Torts: Engstrom on Engel on the Lack of Litigiousness

At JOTWELL, Nora Engstrom reviews David Engel's The Myth of the Litigious Society:  Why We Don't Sue.

IA: House Passes Med Mal Reform Bill

The Iowa House passed a med mal reform bill after amending it to include a "soft cap" exception to the general cap of $250,000:

The key to winning bipartisan support for Senate File 465 was an amendment that removed a hard cap on non-economic damage awards “in the most egregious cases,” said the floor manager Rep. Ashley Hinson, R-Marion. It would allow juries to make awards of more than $250,000 in cases of “substantial or permanent loss or impairment of bodily functions and substantial disfigurement.”

The Senate previously approved the bill without the exception, and the two bills will need to be reconciled.  The bill also includes a certificate of merit requirement.

The Waterloo Cedar Falls Courier has the story.

Krauss on Autonomous Vehicles

In Forbes, Michael Krauss opines on "What Should Tort Law Do When Autonomous Vehicles Crash?".  The gist:

How should tort law deal with these kinds of future problems? In my view, the answer follows from a sound understanding of the more sensible elements of America’s often troubling products liability law:

• In the case of manufacturing defects, manufacturers of autonomous vehicles should be liable to victims for accidents that occurred. Manufacturers have marketed a product that does not perform as advertised, and this misrepresentation provides both the moral grounds for liability and the appropriate economic incentives to perform efficient (not perfect – no one is perfect) quality control.
• In the case of informational defects (failure-to-warn problems), manufacturers should be liable only if they were negligent (that is, if a reasonable manufacturer would have provided a better warning or better instructions). If, as seems likely, legislation or regulations stipulate what warning an autonomous vehicle should contain, compliance with such law or regulation should exclude liability, just as it should (for example) for the mandated warnings on prescription drugs.
• In the case of design defects, the rule should again be based on negligence– was this design choice made by the manufacturer a good one, all things considered? Very important moral issues arise here (see my two moose examples above) and in some cases informed consent of risks imposed by programming would likely be required. This is where design and information defects merge, and so it is totally appropriate that the same legal standard apply in both cases. These issues could be left to properly instructed juries’ evolving notions of reasonable care under the Common Law, or could be pre-empted by regulators (who might choose to maximize social utility at the cost of precluding driving choices heretofore felt to be reasonable). Such regulation should be very carefully debated before being adopted – but if it is adopted it should bind tort tribunals until public outcry leads to its change.

Engstrom on RICO and Fraud in Tort Claims

Nora Engstrom has posted to SSRN Retaliatory RICO and the Puzzle of Fraudulent Claiming.  The abstract provides:

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.

Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.

Justice Applegarth on Lord Atkin

Peter Applegarth, of the Supreme Court of Queensland, has also developed historical expertise on Lord Atkin.  Atkin is best known for his 1932 judgment in Donoghue v. Stevenson (the Paisley Snail), a foundational case in English and Commonwealth tort law.  In that case, Atkin established a duty of care from manufacturers to consumers based on the "neighbour principle".  Justice Applegarth has written this article about Lord Atkin and his father:  Download The Australian article 23.1.16, and delivered this lecture at the Selden Society Lecture series in October 2015.

Tilley on Tort Theory

Cristina Tilley has posted to SSRN Tort Law Inside Out.  The abstract provides:

For more than a century, scholars have been looking at tort law from the outside in. Theorists committed to external goals like efficient allocation of resources or moral justice have treated tort as a mere vehicle for the achievement of their policy preferences, rather than as a body of law with a discernible internal purpose. It is time to revisit tort on its own terms.

This Article takes its cue from the New Doctrinalists, who urge that extralegal normative insights from fields such as economics or philosophy aid adjudication only when they are directly tethered to legal concepts; that is, to doctrine. Scrutinizing tort doctrine yields a surprising insight: tort law is not primarily concerned with efficiency or morality, as the instrumentalists have long contended, but with community. A linguistic study of the Restatement of Torts reveals that doctrine alludes to community more frequently and more comprehensively than it does to any other justificatory concept. Specifically, throughout the Restatement’s discussion of negligence, strict liability, and intentional wrongs, doctrine disfavors stating interpersonal duties in positive terms, preferring to let them float with community values. Consequently, tort operates as a vehicle through which communities perpetually reexamine and communicate their values, encouraging individuals to coordinate private relationships without undue state involvement.

Tort law’s state goal is to construct community. Moreover, tort doctrine acknowledges that two distinct kinds of community – closed and open – can generate the values that govern resolution of interpersonal disputes. Accordingly, tort doctrine embeds a choice between the morality norms of traditional, closed communities and the efficiency norms of the modern, open community, depending on whether the dispute is local or national in scope. So a descriptive account of tort doctrine suggests that morality and efficiency are not mutually exclusive theories of tort, but rather complementary manifestations of tort law’s broader community-constructing purpose. A survey of American tort cases confirms that courts have been fluctuating intuitively between local morality norms and national efficiency norms for decades, without fully acknowledging or operationalizing this practice.

Pivoting from theory to practice, the Article suggests that tort law should embrace and refine its ability to toggle between local morality and national efficiency. The Article briefly sketches how the toggle would operate to adjudicate select hot-button issues arising within each type of tort liability: battery (intentional tort), youth football (strict liability), and failure to vaccinate (negligence). On each of these topics, group norms – and therefore liability – would be expected to vary within adjudicative communities. Making this normative toggle explicit would both enhance the internal integrity of tort law and improve tort law’s external standing relative to other bodies of law such as the Constitution and federal statutes. Moreover, the Article concludes, understanding tort liability as an expression of particular community values might prevent the constitutional override of injury verdicts arising from protected behavior such as gun ownership or speech.

"Veneration Rights" in China

Chinese tort law is struggling with when and how to recognize what they refer to as "veneration rights," similar to our emotional distress, but with an increased sensitivity to remedies of rehabilitation of reputation and apology.  George Conk has coverage at OTHERWISE.

"The Case Against National Medical Malpractice Reform"

At Reason.com, surgeon Jeffrey Singer states he would love tort reform, but he has caveats.  First, citing empirical studies, he acknowledges it is unlikely to significantly reduce medical costs.  Second, he wants state-based tort reform because he believes federal malpractice reform would be unconstitutional. 

Lemley & Volokh on Torts in Virtual and Augmented Reality

Mark Lemley & Eugene Volokh have posted to SSRN Law, Virtual Reality, and Augmented Reality, which includes a discussion of tort law.  The abstract provides:

Virtual Reality (VR) and Augmented Reality (AR) are going to be big -- not just for gaming but for work, for social life, and for evaluating and buying real-world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:

(1) How might the law treat “street crimes” in VR and AR -- behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-help (which will offer an attractive alternative protection to users, but also a further excuse for real-world police departments not to get involved).

(2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators?

(3) How might the law treat users’ alteration of other users’ avatars, or creation of their own avatars that borrow someone else’s name and likeness?

(4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it?

(5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech-conduct distinction?

Volokh has also published this column in WaPo.

FL: $8M Drunk Driving Auto Accident Verdict

In Volusia County, Florida, a jury has awarded $8 million to a woman hit by a drunk driver.  The plaintiff was represented by Morgan & Morgan.  From the press release:

As a result of the crash, Tamara Roundtree sustained extensive injuries, including several disc herniations, requiring her to undergo surgical procedures. She has had to endure a lumbar decompression procedure, after exhausting other more conservative medical measures. She is also in need of a cervical surgical procedure. Ultimately, the total past medical bills at the time of trial were about $188,000.

Large verdicts are often altered on appeal, so it will be interesting to see if this one stands.