TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, September 27, 2018

Simons on Self-Defense and Necessity

Ken Simons has posted to SSRN Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality.  The abstract provides:

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? This essay addresses these issues with a particular focus on legal and moral duties of compensation. First, the essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private necessity principles that apply to appropriations of private property also apply to actors who intentionally infringe or violate rights of bodily integrity. The essay then turns to the privilege of public necessity, which generally is not, but perhaps should be, accompanied by a duty to compensate, and its relationship to rights of self-defense. The next section explores mistake, justification, and excuse, and considers the question of whether an innocent victim should receive compensation from a reasonably mistaken defender. The final section explains that the notion of conditional fault helps make sense of a strict liability duty to compensate.

September 27, 2018 in Scholarship | Permalink | Comments (0)

Friday, September 21, 2018

Schwarcz on the Constitutionality of U.S. Insurance Regulation

Daniel Schwarcz has posted to SSRN Is U.S. Insurance Regulation Constitutional?.  The abstract provides:

Insurance regulation is ostensibly the primary domain of the states. In practice, however, the most important and powerful entity in insurance regulation is not a state at all, but a non-profit corporation known as the National Association of Insurance Commissioners, or NAIC. Much of the NAIC’s power lies in its production of various “handbooks” and “manuals” that have the force of law because they are incorporated by reference in state insurance codes. Under this statutory scheme, when the NAIC updates or changes its various manuals, handbooks, or accounting forms, it also changes state insurance regulation. Because the NAIC is a private entity, it produces these various materials that have the force of law without being bound by any safeguards that ordinarily accompany the production of regulation, whether at the state or federal level. Moreover, the NAIC uses its unique accreditation program to directly pressure state legislatures to delegate this authority to it. This Article argues that this scheme violates basic separation of powers and non-delegation principles embedded in every state Constitution. Under any reasonable version of these principles, the delegation of state regulatory authority to a private entity that directly pressures legislatures to make this delegation and whose actions are not reviewable through any formal judicial or administrative process is unconstitutional. Recognizing this conclusion has the potential to improve state insurance regulation by increasing the accountability of state regulators and the NAIC. But it also carries the risk of undermining state insurance regulation by frustrating efforts to promote uniform national standards. However, the Article suggests that state legislatures can enact reforms that simultaneously remedy the unconstitutional structure of state insurance regulation while preserving the many practical benefits that flow from delegating production of regulatory standards to a single, national entity like the NAIC. In particular, they can establish through an interstate compact an entity that is truly independent from state insurance regulators and that is empowered to review the NAIC’s production of regulatory materials that have the force of law.

(Via Solum/LTB)

September 21, 2018 in Scholarship | Permalink | Comments (0)

Monday, September 17, 2018

JOTWELL Torts: Simons on Oberdiek on Risk

At JOTWELL, Ken Simons reviews John Oberdiek's Imposing Risk:  A Normative Framework

September 17, 2018 in Books, Scholarship, Weblogs | Permalink | Comments (0)

Friday, September 14, 2018

Duff on the Adequacy of Workers' Compensation

Michael Duff has posted to SSRN How the U.S. Supreme Court Deemed the Workers' Compensation Grand Bargain 'Adequate' Without Defining Adequacy.  The abstract provides:

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained tort liability while eliminating many or all affirmative defenses. The Minnesota Employees’ Compensation Commission and the National Civic Federation (NCF) catalyzed the national conversation on workers’ compensation from 1909-1911, and it was an NCF lawyer who was substantially responsible for a draft that became the first workers’ compensation statute upheld by the U.S. Supreme Court as constitutional. Contrary to the view held by some, the foundational Supreme Court opinions constitutionally authorizing the workers’ compensation “Grand Bargain” — statutory benefits for tort damages — set no workers’ compensation benefit floor. The article parses the opinions to emphasize the point, and then goes on to explore the context of what seems a strange omission. Ultimately, the article concludes that the Court “deferred,” sub silentio, to the private bodies of experts who had been investigating, reporting, and deliberating upon the European systems. The difficulty with the Court’s approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages. The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers’ compensation benefits. This absence of an explicit benefit floor should give pause to proponents of schemes seeking to export the workers’ compensation model to other legal regimes.

September 14, 2018 in Scholarship | Permalink | Comments (0)

Thursday, September 13, 2018

Rustad & Koenig on a Global Data Privacy Standard

Mike Rustad & Tom Koenig have posted to SSRN Towards a Global Data Privacy Standard.  The abstract provides:

On May 25, 2018, the General Data Protection Regulation (GDPR) went into effect in the twenty-eight countries of the European Union and the EFTA countries, effective creating European-wide data protection law modernized for the age of the Internet. One of the key aspects of the GDPR is that it applies to non-European entities that processes personal data of EU consumers. Unlike the Data Directive of 1995 that it supplanted, the GDPR applies to U.S data controllers outside the EU. Many academic and industry commentators claim that the GDPR will drive a wider gulf between U.S. and EU data protection law because of the GDPR’s aggressive extraterritorial rules.

This Article rebuts the widespread assertion that recent EU updates to its data protection law will drive a disruptive wedge between EU and U.S. data privacy laws. Instead, the European General Data Protection Regulation (GDPR) creates convergences between EU/U.S. data protection law that overshadows the divergences. The GDPR is said to be a foremost example of the Brussels Effect because it unilaterally imposes EU privacy law on the United States. We acknowledge a Brussels Effect on U.S. privacy law but there is also an overlooked D.C. Effect reflected in many GDPR provisions. The European Commission imported many privacy rights first developed in the U.S. into this wide-ranging EU-wide legislation. U.S. privacy law had already recognized the duty of the processor to obtain consent, a data subject’s right to access, data minimization, and the right to notice in the aftermath of a data security breach.

The GDPR adopts deterrence-based fines and other long-established U.S. tort law remedies. U.S. tort concepts such as collective redress, wealth-based punishment, arming data subjects with the right to initiate public enforcement are recognized for the first time in European history in this comprehensive statute. Under the GDPR, the EU Commission adopted privacy by design and security breach notification obligations, innovations first instituted in the U.S. The net effect is a bilateral transatlantic privacy convergence, rather than a divide, which is rapidly evolving into a global data protection standard. Nations around the world, some U.S. states, and the major U.S.-based data processors are instituting policies conforming to the GDPR. We argue that the GDPR has the potential to not only bring an end to the transatlantic data privacy wars, but to become the foundation of a worldwide “gold standard” for information privacy.

September 13, 2018 in Scholarship | Permalink | Comments (0)

Wednesday, September 12, 2018

Chamallas Asks "Will Tort Law Have its #MeToo Moment?"

Martha Chamallas has posted to SSRN Will Tort Law Have its #MeToo Moment?Presented at AALS in January and forthcoming in the Journal of Tort Law, the abstract provides:

Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.

September 12, 2018 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, September 11, 2018

AR: Poll Finds Roughly 2-1 Margin Against Tort Reform

KATV in Little Rock is reporting about a Talk Business & Politics-Hendrix College poll on the issue of whether the state constitution should be amended to cap attorney fees, limit damages in personal injury, property damage, or wrongful death lawsuits, and give the legislature the authority to control the rules of court procedure.  The results?  25% of voters are in favor and 47% are opposed.  More details are available here.  It would be interesting to know if the advocacy of a Christian group against tort reform has had an effect.

September 11, 2018 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, September 10, 2018

Verchick Podcasts on Climate Change Tort Litigation

Rob Verchick has edited two podcasts on climate change tort litigation for the Center for Progressive Reform.  He describes them as follows:

The episodes, which are part of CPR’s “Connect the Dots” with Rob Verchick, examine climate change tort lawsuits brought by municipalities against oil and gas companies for damages related to climate change impacts. 
Episodes 5 and 6 feature an interview with Kate Sears, a member of the Board of Supervisors for Marin County, California, which is part of the high-profile case against Chevron et al. over costs of preparing for climate change. (Sears is also a lawyer.) We discuss climate impacts in Marin, costs of climate adaptation, the oil industry’s early knowledge about climate impacts, federal and state common law theories, preemption, displacement, and removal to federal court—all while trying to keep the discussion engaging and accessible to a lay audience.
Episode 6, in addition to the interview with Sears, also features an interview with our friend Tom McGarity of U. of Texas about the evolution of tort law in climate litigation and the relationship between this and the tobacco litigation. Tom also weighs in on what a future "Justice Kavanaugh” might think about all this. 
Episode 5 is here.
Episode 6 is here.

September 10, 2018 in Current Affairs | Permalink | Comments (0)

Friday, September 7, 2018

Seymore on Damages for Wrongful Family Separation in Adoption

Malinda Seymore has posted to SSRN Adopting Civil Damages:  Wrongful Family Separation in Adoption.  The abstract provides:

Summer 2018 has been rocked by the Trump Administration’s new immigration policy of family separation at the U.S./Mexico border. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course; in legal adoption, the biological parents have been provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents when consent is invalid because of fraud, coercion or deceit. In actuality, courts are very reluctant to undo an adoption. How, then, to deter adoption agencies and workers from wrongfully separating birth parents and their children? Adoption agencies are not just social welfare institutions, but also businesses motivated by money. Lawsuits, as a cost of doing business, can affect their bottom line. The adoption industry has been responsive in the past to lawsuits from adoptive parents seeking money damages, which suggests that lawsuits from birth parents that affect the bottom line could incentivize better behavior from adoption agencies. This article explores possible tort causes of action available to birth parents, including a proposed new tort of wrongful family separation, with the long-term objective of changing adoption agency behavior, potentially transforming adoption practice.

September 7, 2018 in Scholarship | Permalink | Comments (0)

Wednesday, September 5, 2018

Ken Simons is the 2019 William L. Prosser Award Recipient


The AALS Torts & Compensation Systems Section has announced that the 2019 William L. Prosser Award is bestowed upon Kenneth Simons.  Congratulations to Ken!  From the UC Irvine announcement:

IRVINE, Calif. (Sept. 4, 2018) - The University of California, Irvine School of Law is pleased to announce that Chancellor’s Professor of Law Kenneth Simons, a leading scholar at the intersection of torts, criminal law, and philosophy, was named the recipient of the 2019 William L. Prosser Award by the Association of American Law Schools (AALS) Section on Torts and Compensation Systems.
The Prosser Award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” related to tort law and compensation systems. Prof. Simons will receive the award at the AALS Annual Meeting in January 2019.
“Ken Simons is well-deserving of this tremendous recognition,” said UCI Law Dean L. Song Richardson. “He is one of the most important scholars in the Torts field, a remarkable teacher and mentor to our students, and a well-respected, beloved colleague.”
Prof. Simons has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has also explored such topics as bias crimes, corrective justice, the logic of egalitarian norms, mistake and impossibility in criminal law, and strict criminal liability. Others frequently engage with his work, which is cited often in one of the leading tort treatises, Dobbs’ Law of Torts. He is a frequent speaker and commentator at scholarly conferences on torts, criminal law, philosophy and related issues.
Co-Director of UCI’s Center for Legal Philosophy, Prof. Simons has also served, since 2012, as Co-Reporter and (since 2014) Chief Reporter for the Restatement Third of Torts: Intentional Torts to Persons. He has co-authored numerous lengthy Restatement drafts and presented them to different groups of the American Law Institute (ALI), the country’s leading independent organization made up of elected judges, academics, and practitioners, which publishes works to clarify and improve the law. The drafts clarify the tort doctrines of battery, assault, false imprisonment, consent, and defenses such as defense of property and self-defense.
Prof. Simons is also a dedicated and extraordinary teacher. His courses have included Common Law Analysis: Torts, Statutory Analysis: Criminal Law, Philosophy of Punishment, Law and Ethics of War, Constitutional Law and Products Liability.
“Prof. Simons obviously cares about both the subject matter of his classes and our learning the material,” said Rina Liles, UCI Law 2L student. “It's easy to be star struck by Prof. Simons’ professional stature, especially when our class discussions mirror conferences about the next Restatement. He has the brilliance to distill a complicated subject into terms his students understand, and do so with a great deal of warmth and humor.”
Additionally, the UCI Law faculty value his collegiality and judgment, as evidenced by his leadership role in directing the UCI Law Strategic Planning Committee.
Before joining UCI Law, Prof. Simons was Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law. He was Associate Dean for Research and Associate Dean for Academic Affairs there.
Prof. Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit. Prof. Simons also worked as an associate at Goodwin, Procter & Hoar in Boston, in the field of civil litigation, including commercial law, tort, contracts, and prisoners’ rights. He received his J.D. from Michigan Law School, magna cum laude, and graduated from Yale University, summa cum laude, with a B.A. in philosophy.

September 5, 2018 in TortsProfs | Permalink | Comments (0)