TortsProf Blog

Asfour on Wrongful Enrichment

Nahel Asfour has published Wrongful Enrichment:  A Study in Comparative Law and Culture (Hart Publishing).  The blurb provides:

This book analyzes enrichment law, its development, and underpinning in social culture within three geographical regions: the United States, western members of the European Union, and the late Ottoman Empire. The regions chosen correspond, though imperfectly, with three different legal traditions, namely, the American, continental, and Islamic traditions. The book argues that we should understand law as a mimetic artefact. In so doing, it explains how typical patterns and exemplary articulations of wrongful enrichment law capture and reiterate vocal cultural themes found in the respective regions. Nahel Asfour identifies remarkable affinities between poetic tendencies, structures, and default dispositions of wrongful enrichment law and cultural world-views. Asfour offers bold accounts of each region's law and culture, providing fertile grounds for external and comparative elucidations of the legal doctrine. Revised Dissertation. (Series: International Studies in the Theory of Private Law) [Subject: Contract, Tort & Restitution Law; Comparative Law]

WA: Court Retains No-Emotional-Distress-for-Pets Rule

The Washington Supreme Court let stand an appellate court decision rejecting a pet owner's claim to emotional distress damages for witnessing a difficult euthanasia.  The American Veterinary Medical Association News has the story.

Perry on Crowdfunding Civil Justice

Ronen Perry has posted to SSRN Crowdfunding Civil Justice.  The abstract provides:

Crowdfunding—the aggregation of numerous but modest individual contributions through specialized online platforms—is a relatively new finance method. In the last few years, it has started its incursion into the realm of civil litigation funding. Three unrelated events, which took place in different jurisdictions in 2017, demonstrate this evolving trend and its potential impact. In the United States, the Southern Poverty Law Center included the political activist Maajid Nawaz on a list of “anti-Muslim extremists.” Nawaz launched an independent campaign for crowdfunding a defamation action against the organization. In the United Kingdom, a wildlife protection organization brought a defamation action against Andy Wightman, a Member of the Scottish Parliament, over his blog posts about the plaintiff’s practices. Wightman raised more than £60,000 through a British crowdfunding platform to fight this lawsuit. In Israel, the acclaimed journalist Igal Sarna was found liable in defamation for a Facebook post scorning Israeli Prime Minister Benjamin Netanyahu. Sarna raised over $45,000 through a crowdfunding website to cover his liability.

The Article provides a law and economics analysis of this emerging global trend, which may revolutionize the civil process in the near future. It argues, first, that the distinction between investment-based and non-investment-based crowdfunding models is crucial. In non-investment-based models, contributors expect only a non-monetary benefit (reward-based crowdfunding) or none at all (donation-based crowdfunding). In investment-based models, contributors expect financial return—a share in the fundraiser’s future gain (equity-crowdfunding) or repayment of the contribution with interest (debt-crowdfunding). The Article contends that investment-based litigation crowdfunding is generally a welcome phenomenon, because it enables parties to pursue meritorious claims and defenses without generating a significant risk of frivolous litigation. Thus, it should be minimally regulated by securing disclosure of relevant information to potential investors.

Non-investment-based litigation crowdfunding should be more constrained. The analysis entails a second fundamental distinction between process costs and outcome costs. Process costs are any outlays incurred by either party in relation to the dispute resolution process and prior to its conclusion. These may include court charges, attorneys’ fees, witnesses’ and experts’ expenditures and remuneration, etc. In cases of incapacitating injury, process costs may also include the claimant’s living expenses throughout the process. Outcome costs are the amounts payable under the settlement or the judgment. The Article contends that non-investment-based crowdfunding of process costs should be subject to professional vetting. This will inhibit frivolous claims and defenses that waste scarce administrative resources and do not further the underlying goals of civil law. Non-investment-based crowdfunding of outcome costs should be prohibited, because it undermines at least one of the primary objectives of substantive law.

(Via Solum/LTB)

Sugarman on Merging Battery and Negligence

Steve Sugarman has posted to SSRN Restating the Tort of Battery.  The abstract provides:

This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would a) do away with complex and unneeded doctrinal details now contained within battery law, b) pave the way to a sensible regime of comparative fault for all such physical injuries, c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.

Sawicki on Med Mal Waivers

Nadia Sawicki has posted to SSRN Choosing Malpractice:  A New Narrative for Limiting Physician Liability.  The abstract provides:

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law’s traditional skepticism towards the defenses of waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient’s agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article fills an important gap in the scholarly debate about whether patients and physicians should be able to contractually modify their default duties under tort law, demonstrating that two lines of rarely-acknowledged cases – dealing with experimental medical treatment and Jehovah’s Witness blood refusals – lend support to the principle that patients who choose malpractice should be limited in their right to tort recovery.

Sugarman on Torts and Guns

Steve Sugarman has posted to SSRN Torts and Guns.  This piece is an expansion of his remarks at last year's AALS Torts Section panel and will appear in volume 10:1 of the Journal of Tort Law.  The abstract provides:

When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCCA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.

Geistfeld on Data Breaches

Mark Geistfeld has posted to SSRN Protecting Confidential Information Entrusted to Others in Business Transactions:  Data Breaches, Identity Theft, and Tort Liability.  The abstract provides:

Tort litigation over data breaches — defined here as the theft of one’s confidential information entrusted to another in a business transaction — most commonly involves the negligence cause of action. These claims turn on a number of issues that require searching analysis, including the manner in which the economic loss rule affects the tort duty, the relation between the negligence standard of care and strict liability, and the appropriate forms of compensable loss. Substantive analysis of these issues shows that they all can be resolved in favor of the negligence claim, which in turn justifies a rule of strict liability. The economic loss rule does not provide a substantive rationale for barring tort claims because customers do not have the information necessary to adequately protect their interests by contracting. Moreover, the common-law tort duty can be independently justified by the legislative policy decisions embodied in statutes that regulate data breaches. To prove a breach of the duty to exercise reasonable care, the victims of identity theft will often face considerable evidentiary difficulties stemming either from the complexity of data-security systems or the unreliability of other relevant evidence involving the conduct of defendant’s employees. For reasons recognized by tort law in analogous contexts, the evidentiary difficulties of proving negligence can justify a rule of strict liability for enforcing the tort duty to exercise reasonable care. Finally, the important forms of damages caused by identity theft — the cost of credit-monitoring services and the like, unauthorized charges, and any significant loss of time and emotional distress — are all compensable as a matter of basic tort principles. Strict tort liability in these cases ultimately finds justification in the important public policy of maintaining the integrity of market transactions.

NY: Fans Sue Barclays Center

Steep incline + inebriation = "exceedingly dangerous".  The New York Post has the story.

Institute for Legal Reform Ranks the States' Lawsuit Climates

...here.

OH: Dram Shop Act is Sole Avenue to Recovery for Injuries Caused by an Establishment Furnishing Alcohol

At Legally Speaking Ohio, Marianna Brown Bettman analyzes a case handed down by the Ohio Supreme Court last week.  The court held that the state's dram shop act precluded common law negligence liability for serving alcohol that causes injuries.

Geistfeld on Intentional Tort Theory

Issue 2017:2 of the Journal of Tort Law is devoted to a symposium on the Restatement of Intentional Torts to Persons.  Authors include Anita Bernstein, Ellie Bublick, Martha Chamallas, Nancy Moore, Steve Sugarman, and Richard Wright.  The Reporters, Ken Simons and Jonathan Cardi, will draft a response.  Mark Geistfeld's contribution to the issue, Conceptualizing the Intentional Torts, has just been posted to SSRN.  The abstract provides:

According to the most recent draft of the Restatement (Third) of Torts: Intentional Torts to Persons, the intentional torts protect the rightholder’s interests differently from negligence-based rules and strict liability, placing them into a distinct substantive category. This conceptualization, however, does not provide courts with adequate guidance on how to formulate the element of intent. Different formulations can protect the rightholder’s interests differently from negligence and strict liability, so something else must determine the appropriate way to formulate the element of intent.

The draft Restatement’s reasoning can be easily extended to provide a more useful conceptualization of the intentional torts. The practice of tort law involves the enforcement of behavioral norms, and so the substantive categories of tort law should correspond to normatively distinguishable categories of behavior. For tort purposes, three different paradigmatic forms of social behavior are relevant: aggressive interactions; interactions of mutual advantage; and the remaining nonaggressive, risk-creating interactions that are not motivated by an expectation of mutual benefit. Within this normative framework, the category of intentional torts is defined by aggressive interactions, which involve intentional harms that are normatively different from accidental harms. The intentional torts accordingly protect different interests in a distinctive manner as per the rationale in the draft Restatement.

This normative framework straightforwardly explains a number of established rules while also resolving two questions of intent that have vexed courts and commentators. Difficult issues of intent involve hard questions about how the conduct is best categorized for tort purposes. Once the categories have been conceptualized in behavioral terms, the element of intent has a clear substantive purpose: it determines whether or not an interaction is aggressive and properly governed by the intentional torts.

AALS Torts Panel: The Role of History in Tort Theory

AALS Torts & Compensation Systems Section

January 5, 2018; 1:30 pm - 3:15 pm (Register here)

The Role of History in Tort Theory

Claims about the nature of tort law are often coupled with historical claims.  Thus, many mid-twentieth century proponents of an expansive, compensation-oriented tort law argued strict liability was prevalent under the common law writ system.  What is the purpose of such appeals to history?  Are they necessary to tort theory, or merely tangential?  Does the importance of history depend on whether the theory is descriptive or normative?  A panel of experts takes up these issues and wrestles with the role of history in theorizing about tort law.

Speaker: Martha E. Chamallas, The Ohio State University, Michael E. Moritz College of Law

Speaker: John C.P. Goldberg, Harvard Law School

Moderator: Christopher J. Robinette, Widener University Commonwealth Law School

Speaker: G. Edward White, University of Virginia School of Law  

Speaker: John F. Witt, Yale Law School

The 2018 Prosser Award will be presented to Marshall S. Shapo, Northwestern University Pritzker School of Law .

Dagan & Kreitner on Private Law and Bureaucracy

Hanoch Dagan & Roy Kreitner have posted to SSRN The Bureaucrats of Private Law.  The abstract provides:

Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory bureaucracies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this collectivist mold, but not all. A significant subset of the regulatory practice deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people. This Essay focuses on these private law bureaucracies, which regulatory theory marginalizes or neglects. 

Our mission is threefold. Descriptively, we show that many agencies are indeed best understood as devices that supplement or even supplant the role of courts in addressing horizontal, rather than vertical or collectivist, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal interactions in core social settings, such as the workplace or the marketplace. 

Normatively, we argue that the seeming consensus among theorists of both private law and regulation, in which these tasks belong to judges, rather than administrators, is misguided. In many contexts – increasingly prevalent in contemporary society – agencies, rather than (or in addition to) courts, may well be the (or at least an additional) appropriate institution for the articulation, development, and vindication of our interpersonal rights.

Finally, jurisprudentially, we offer some initial steps towards a theory of private law bureaucracies. We demonstrate the regulatory implications – in both substance and form – of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction and advance a preliminary account of the regulatory toolkit appropriate to this horizontal task.

Twerski & Shane on Liability for Third-Party Criminal Acts at Shopping Malls

Aaron Twerski and Jon Shane have posted to SSRN Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls.  The abstract provides:

Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard for reasonable policing. Most courts place heavy emphasis on the foreseeability by the mall management of the likelihood of criminal activity to take place on the grounds of the mall. In doing so they rely on the testimony of security experts who intuit as to the adequacy of the staffing. This article challenges the case law on several grounds. First, experts fail to utilize objective data as to the workload of security officers on the mall. The article will demonstrate that such data is available and provides an objective measure as to adequate staffing. Second, foreseeability of crime is too uncertain a measure as to the adequacy of staffing. The question of how much foreseeability is sufficient to trigger a duty of security has bedeviled the courts. Third, courts have struggled to determine whether better security would have avoided harm to a particular crime victim. Thus, even if security is found to be inadequate it is often impossible for plaintiffs to prove causation. This article argues that once a court, based on objective data, sets the standard of reasonable care that the burden of proof that additional security would not have averted the crime to the victim should shift to the defendant management of the mall.

NC: Heart Balm Torts are Constitutional

The heart balm torts are back in the news.  Almost all states recognized some or all of the 4 heart balm torts (alienation of affections, criminal conversation, seduction, breach of promise to marry) at one time.  Now, however, only about 7 or 8 states recognize any of them.  Alienation of affections and criminal conversation are the most common.  These are suits against an interloper to a marriage based on the interloper alienating the affections of one spouse (alienation) or having sex with the spouse (criminal conversation).  The North Carolina bar seems the most committed to them.  Approximately 230 cases were filed last year in that jurisdiction.

Recently, a trial judge in Forsyth County (think Winston-Salem) ruled the heart balm torts were unconstitutional.  The judge ruled that state law violates a person's constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.  The Court of Appeals in North Carolina overruled the judge.  Eugene Volokh analyzes the opinion, which he pronounces "generally sound", here.  That makes sense to me.  I still hold, however, the same position I held a decade ago, that the torts don't make sense as a matter of tort theory.

Note: Products Liability in the Sharing Economy

David Berke, who appears to be a Yale Law student, has posted to SSRN Products Liability in the Sharing Economy.  The abstract provides:

This Note undertakes an in-depth review of an important legal problem that has not yet been addressed—the role of products liability in the sharing economy. To date, two foundational questions have not been posed in the sharing economy literature, much less answered. First, what descriptive role, if any, does products liability have in the sharing economy? Second, what role should products liability have in the sharing economy and its regulation, as a normative matter? In Part I, this Note examines a hypothetical sharing economy products liability claim point-by-point and finds that, descriptively, such a claim is conceivably possible but extremely difficult. In Part II, this Note argues against this current state of the law and advocates a more robust role for products liability in the sharing economy.

Journal of Tort Law Publishes Issue 10:1

Journal of Tort Law Volume 10, Issue 1

---

Frontmatter

Page i

---

Foreword: Tort Law as Regulatory Tool
Kendrick, Leslie
Page 1

---

Torts and Guns
Sugarman, Stephen D.
Page 3

---

Any Weapon to Hand? An Essay on Gun Regulation and the Limits of Insurance
Scales, Adam F.
Page 23

---

Products Liability As Enterprise Liability
Keating, Gregory C.
Page 41

---

The Prosser Letters: Scholar as Dean
Robinette, Christopher J. / Graham, Kyle
Page 99

Judge Posner Announces Retirement

The Chicago Daily Law Bulletin has the story.

Peter Cane: Key Ideas in Tort Law

Peter Cane has authored "Key Ideas in Tort Law" from Hart Publishing.  The blurb provides:

This book offers nine key ideas about tort law that will help the reader to understand its various social functions and evaluate its effectiveness in performing those functions. The book focuses, in particular, on how tort law can guide people's behaviour, and the political and social environments within which it operates. It also provides the reader with a wealth of detail about the ideas and values that underlie tort 'doctrine'-tort law's rules and principles, and the way those rules and principles operate in practice. The book is an accessible introduction to tort law that will provide students, scholars and practitioners alike with a fresh and engaging view of the subject.

The table of contents:

1. Nine Key Ideas
2. Tort Law
3. Torts
4. Torts Unpacked
5. Torts Repackaged
6. Wrongs
7. Out and About with Tort Law
8. Politics
9. Uses
10. The Political Economy of Compensation Schemes
11. The Future of Tort Law