TortsProf Blog

Two by Engstrom on Trials

Nora Freeman Engstrom has posted to SSRN two pieces about trials.  First, The Diminished Trial.  The abstract provides:

Civil trials, many have noted, are going the way of the dodo bird. Federal courts conducted half as many civil trials in 2016 as they did in 1962, even while disposing of over five times as many civil cases. A similar trend is apparent in the states. Of course, this trajectory has not escaped scholarly attention. Barrels of ink have been spilled investigating, eulogizing, and variously, mourning or lauding, the “vanishing trial.” But, this is far from the whole story. This Article shifts the conversation to a different, though related, phenomenon: not the disappearance of the civil trial, but rather, its downsizing. I take as my point of departure two puzzling trends. First, since 1983, “protracted” trials, which is to say trials that last over 20 days, are way down. There were more than 100 such trials per year in the late 1980s, but in 2016, we only saw only 13. Second, over the same timespan, really short trials, which is to say trials lasting one day or less, are up. Indeed, starting in 2009, and every year since, the majority of all federal civil trials have wrapped up in only one day. This paper seeks to highlight these trends, which have so far escaped scholarly attention, and also to conduct a preliminary investigation into the potential causes and consequences.

Second, The Trouble with Trial Time Limits.  The abstract provides:

Civil trial rates are at an all-time low. Meanwhile, “trial time limits” — judicially imposed limits on the time litigants have to present their evidence at trial — seem to be at an all-time high. We have fewer trials than ever, yet we’re taking aggressive steps to curtail the few that we’ve got. This Article zeroes in on this paradox. It excavates time limits’ origins, tracks their rise, examines their administration, and raises deep questions about their fairness and utility. Trial time limits have, so far, been variously ignored or, alternatively, lauded, as a way to promote juror comprehension and as a tool to make trials cheaper and more efficient. Indeed, one court has gone so far as to call these restrictions “essential” to sensible docket management. This Article challenges that conventional story and cautions against time limits’ regular or reflexive application. In so doing, this Article seeks to begin a broader inquiry into how the American civil trial of the twenty-first century is not only disappearing; the scattered trials that remain are also changing, in subtle and hard-to-quantify but profoundly important ways.

Engstrom on the Automobile's Legacy in Tort Law

Nora Freeman Engstrom has posted to SSRN When Cars Crash:  The Automobile's Tort Law Legacy.  The abstract provides:

Everyone understands that the invention of the automobile has had a profound effect on daily life in America. It has transformed our workplaces, altered our neighborhoods, and radically changed our environment. But cars have never been perfectly safe, and, as the years have passed, injuries and fatalities have mounted. This Article contends that, just as motor vehicles have remade our culture, these injuries and deaths — some 3.5 million fatalities and counting — have catalyzed fundamental changes in the contours, purposes, and limits of our law.

Lytton on Tort Law and Food Safety

Tim Lytton has posted to SSRN Exposing Private Third-Party Food Safety Auditors to Civil Liability for Negligence:  Harnessing Private Law Norms to Regulate Private Governance.  The abstract provides:

In many industries, companies rely on private third-party audits to monitor their suppliers’ adherence to various standards. These audits are frequently paid for by the entity being audited, which creates a conflict of interest that incentivizes auditors to reduce the burden of audits by cutting corners and inflating audit scores. This article presents a case study of food safety audits in the fresh produce sector. It explains why large commercial buyers of fresh produce rely on private third-party audits paid for by growers despite the conflict of interest, and it argues that exposing auditors to civil liability for negligence would improve the rigor and reliability of these audits. The article concludes with a more general analysis of how the private law norms of duty and reasonable care imposed by civil liability can improve private governance.

Citron on Sexual Privacy

Danielle Keats Citron has posted to SSRN Sexual Privacy.  The abstract provides:

Those who wish to expose, control, and distort the identities of women, minorities, and minors routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms, and “up their skirts.” Victims are coerced into sharing nude photographs and filming sex acts under the threat of public disclosure. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep sex fake” videos that swap people’s faces into pornography.

At the heart of these abuses is an invasion of sexual privacy—the specific set of identity-enabling and equality-protecting rules and norms that protect access to and information about our bodies; intimate activities; and gender and sexual identities. Invasions of sexual privacy coerce visibility and invisibility, undermining identity formation, human dignity, and equal opportunity. More often, marginalized and subordinated communities shoulder the abuse.

This Article explores how sexual privacy works, and should work. It shows how the efficacy of traditional privacy law is waning just as digital technologies magnify the scale and scope of the harm. We need a comprehensive approach to sexual privacy that includes legislation and updated privacy tort law. This would allow us to see the structural impact of sexual privacy invasions and prompt us to consider the privacy-enhancing and privacy-invading aspects of market efforts.

Wells on Qualified Immunity

Michael Wells has posted to SSRN Qualified Immunity after Ziglar v. Abbasi:  The Case for a Categorical Approach.  The abstract provides:

Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of violations, critics of immunity have called for its abolition. This article rejects both of these approaches. My thesis is that the availability of qualified immunity should depend on an assessment of costs and benefits, which vary depending on context. A better approach is to retain the basic doctrine but to identify categories of cases in which immunity should be denied, and others in which it should be strengthened.

Lens on Tort Law's Devaluation of Stillbirth

Jill Wieber Lens has posted to SSRN Tort Law's Devaluation of Stillbirth.  The abstract provides:

In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth. This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim. The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.

AR: Pro-Life Group Opposes Tort Reform

Religious and business conservatives can make for uneasy allies on a number of issues.  Tort reform, advocated by business conservatives, has not usually been such an issue.  In Arkansas, however, the Family Council Action Committee, a conservative Christian group, is actively opposing the ballot measure to impose new limits on tort damages:

A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor.

It will be interesting to see if this spills over to other states.  The News Tribune has the story.

Read more here: https://www.thenewstribune.com/news/nation-world/article216945060.html#storylink=

Hylton on Information Costs and Civil Litigation

Keith Hylton has posted to SSRN Information Costs and the Civil Justice System.  The abstract provides:

Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features of the real world and probes its implications for compliance with the law, efficiency of law, accuracy in adjudication, trial outcome statistics, and the evolution of legal standards. The model’s claims are applied to and tested against the relevant empirical and legal literature.

JOTWELL Torts: Bublick on Abraham & Rabin on Autonomous Vehicles

Over at JOTWELL, Ellie Bublick reviews Ken Abraham & Bob Rabin's Automated Vehicles and Manufacturer Responsibility for Accidents:  A New Legal Regime for a New Era.

KY: Argument Over Constitutionality of Med Mal Panels

Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial.  The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial.  Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law.  Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution.  The Courier Journal has the story.

Summer Travel: The American Museum of Tort Law

New Canaan News previews a trip to the American Museum of Tort Law, the only museum in the United States exclusively devoted to law.  I still haven't made it up there, and I still want to go.

Assumption of Risk

Thanks to Caroline Robelen.

The European Convention on Human Rights as an Instrument of Tort Law

Intersentia's "The European Convention on Human Rights as an Instrument of Tort Law" by Stefan Somers will be available in October.  From blurb:

Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons.

An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights.

The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system.

AR: Judge Refuses to Block Tort Reform Ballot Measure

For several years, there has been a saga in Arkansas to get a tort reform measure on the ballot.  The measure would cap non-economic damages, punitive damages, and attorneys' fees.  Last month, I reported on the most-recent event, a former judge sued to block the measure on the basis that it unconstitutionally combines several proposals and also violates separation of powers.  On Tuesday, a judge refused to grant a preliminary injunction because the plaintiff-former judge could not demonstrate irreparable injury if the ballot went forward.  The case remains to be decided on the merits.  The Times Record has the story. 

NC: $8.8M Verdict for Alienation of Affections & Criminal Conversation

The heartbalm torts--torts used to soothe a spouse's heart if cheated upon--have been abrogated in most jurisdictions.  Six jurisdictions, however, retain some version of alienation of affections, criminal conversation, or both:  Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah.  In these states, a cheated-upon spouse can sue the interloper in the marriage, not the other spouse.  North Carolina makes the most use of these torts, and this week a man was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife.  Most of the verdict was in punitive damages, but $2.2M was in compensatory damages.  When the plaintiff learned of his wife's infidelity, his business lost revenue and a valued employee (his wife).  CNN has the story.