TortsProf Blog

3d Circuit Agrees to En Banc Review of Case Holding Amazon Is a Seller of Third-Party Products

Back in July, I reported the Third Circuit had held that, under Pennsylvania law, for products liability purposes, Amazon is a seller of items appearing on its website, even if they are owned by third parties.  The Third Circuit has agreed to take up the issue en banc.  Law 360 has the story.

Conference on Fault-Based and Strict Liability

The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to a conference on Fault-based and Strict Liability, which is organized together with the University of Yantai, China, and will be held in Vienna on 18 October, 2019.

FAULT-BASED AND STRICT LIABILITY

The fourth project in the cooperation between ETL, ECTIL and Yantai University (China), addresses the topic ‘Fault-based and Strict Liability’. While it seems safe to say that all European legal systems, as well as the Chinese Tort Liability Law, endorse liability based on fault, they differ in their attitude towards liability in the absence of that foundation. A thorough examination of the relatively cautious use of strict liability found in the Chinese Tort Liability Law and the com­mon law on the one hand, and the prominent support for it in influential Continental European jurisdictions on the other may lead to valuable new perspectives on the viability of commonly-used bases for strict liabilities. The project pays special attention to the use of rules reversing the burden of proving fault in Chinese and European statutes, which are sometimes considered to fall into a grey area bet­ween fault-based and strict liability.

At this public conference, contributors will present their most significant findings. The results will be published in English by Jan Sramek Verlag (Vienna) under the title ‘Fault-based and Strict Liability. Chinese and European Perspectives’.

Please find the Conference folder here:  Download Yantai2019_ConferenceFolder

For registrations, please contact Lisa Zeiler ([email protected]), preferably before 30 September, 2019.

The conference will be held in English and is free of charge.

Products Liability Visitor Wanted at the University of Kentucky for Spring 2020

The University of Kentucky is seeking a visitor for spring 2020.  One of the courses is Products Liability and the other is to be decided.  If interested, please contact Associate Dean Doug Michael at [email protected].

OK: J&J Liable for Opioid Abuse; Must Pay $572M

In the first trial against an opioid manufacturer, a judge in Oklahoma found Johnson & Johnson liable for a public nuisance and ordered it to pay $572 million to the state of Oklahoma.  The court found J&J played down the dangers and oversold the benefits of opioids, forcing the state to pay addiction treatment costs.  The state had sought $17 billion.  J&J promises to appeal.  NYT has the story.

Two More by Keating

Greg Keating has  been busy lately.  He has posted two more pieces to SSRN.  First, Between Absolutism and Efficiency:  Reply to Professors Geistfeld, Grady, and Priel.  The abstract provides:

This paper replies to Professor Geistfeld, Grady, and Priel’s excellent comments on my article Principles of Risk Imposition and the Priority of Avoiding Harm, 36 Revus J. for Const. Th. & Phil. of Law, 7 (2018). Both my article and Professor Geistfeld’s, Grady’s and Priel’s papers a part of the “Symposium: Risk Regulation and Tort Law, A discussion with Gregory C. Keating.” This Reply completes the Symposium. It attempts, briefly, to develop two lines of argument. One line attempts to respond to the specific criticism that Professors Geistfeld, Grady, and Priel, make in the Comments. In part, my specific replies seek to show that the safety and feasibility standards are rationally justifiable and genuine alternatives to cost-justification as a standard of precaution. Though I disagree with specific arguments of each of my critics, I believe that other claims they make are true, but do not undermine my arguments. For example, my arguments are compatible with Professor Grady’s correct observation that juries have the authority to reach verdicts inconsistent with the priority of avoiding harm — or any other theory of negligence. The merits of jury adjudication are not settled by any normative theory of reasonable care. I also agree with Professor Priel’s thesis that societies do not prioritize harm prevention. We are, I think, torn between competing moral outlooks and the standards of precaution that express those outlooks. My point is that standards of precaution which prioritize the avoidance of harm are rationally defensible, albeit in non-welfarist terms. I am likewise persuaded that Professor Geistfeld is correct to contend that welfare economics is compatible with non-welfarist normative commitments, but mistaken to think that measures such as willingness-to-pay and willingness-to-accept are the best ways to articulate the concrete implications of non-welfarist principles of precaution.

This Reply leads, however, with a second line of argument. We are all — consequentialists and non-consequentialists, philosophers and economists — imprisoned in the grip of the debate between utilitarianism and its critics that dominated political philosophy in the latter half of the 20th century. Classical utilitarianism fell into disfavor because its commitment to maximizing utility is capable of justifying deprivations of basic rights for a minority whenever such restrictions promoted the greatest net happiness. The cure for this disease lay in making some basic rights “absolute” — in ruling out some trade-offs entirely. Applied to problems of risk imposition, the legacy of this debate is the assumption that we must choose between “absolutism” and “efficiency”. Unattractive as “efficient” trade-offs may be, the absolute prohibition of trade-offs is untenable when risks of physical harm are at issue. The safety and feasibility standards must fail because they are unacceptably absolutist. Once we shake ourselves free of this philosophical legacy we can see that this is not the case: these standards are standards for making trade-offs not for forbidding them and that the trade-offs they prescribe are perfectly plausible.

Second, Fair Precaution.  The abstract provides:

This book chapter briefly sketches a general framework which explains why questions of fairness have a natural salience when the imposition of risks of harm by some on others is at issue, and it applies that conception to major aspects of negligence law. Fairness comes to the fore because risk impositions require us to compare what those who impose the risks stand to gain, and those upon whom they are imposed stand to lose. Determinations of due care reconcile competing claims of liberty and security, for a plurality of persons. Fairly reconciling liberty and security requires reconciling them on terms that are justifiable both to those who impose risks and to those upon whom they are imposed. This, in turn, requires comparing the benefits and burdens of risk impositions in terms of their objective urgency, assessing the burdens and benefits of risk impositions qualitatively, and assigning a certain priority to the avoidance of harm. The framework is used to explicate the concept of due care articulated by the Hand Formula, to illuminate the circumstance where risks are imposed with a “community of risk”, and to situate subordinate doctrines of due care such as custom, statutory negligence, and jury adjudication. Brief contrasts are drawn with both law and economic approaches to justified precaution as efficient precaution, and with versions of corrective justice which see negligence liability falling out of a universe of conceptual possibilities where it holds the high ground of a golden mean.

Shavell on Liability for Autonomous Vehicle Accidents

Steven Shavell has posted to SSRN On the Redesign of Accident Liability for the World of Autonomous Vehicles.  The abstract provides:

This article proposes a scheme of liability that would desirably control accident risks in the coming world in which motor vehicles will be autonomous. In that world, travelers will not be drivers, rendering liability premised on driver fault irrelevant as a means of reducing accident dangers. Moreover, no other conventional principle of individual or of manufacturer liability would serve well to do so. Indeed, strict manufacturer liability, recommended by many commentators, would actually tend to leave accident risks unchanged from their levels in the absence of liability. However, a new form of strict liability – the hallmark of which is that damages would be paid to the state – would be superior to conventional rules of liability in alleviating accident risks and would be easy to implement.

PA: Football Players Injured in Tackling Drill Can Sue University

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010.  Their suits against the school were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.  The "Oklahoma Drill" the players were engaged in later became subject to criticism during investigations about concussions and the school did not have licensed athletic trainers present to treat injuries.  PennLive has the story.

Keating: "Is Tort Law Private?"

Gregory Keating has posted to SSRN Is Tort Law 'Private'?.  The abstract provides:

A prominent, important strand of contemporary thinking about tort law — represented most powerfully by the work of Arthur Ripstein and Ernest Weinrib — has coalesced around the thesis that the concept of “private law” is the key to the subject. In one familiar usage of the term, the thesis that tort is private law is innocuous. Tort is private law in the sense that it is concerned with relations among persons in civil society. As the banner under which a school of thought marches, “private law” is a much weightier concept. It asserts that the essence of tort law is encapsulated in the traditional bipolar lawsuit. Within that formal structure, all that matters are the relations between the particular plaintiff and the particular defendant.

This book chapter argues that modern tort law is not private in the way that these theorists claim, for reasons that are both historical and normative. Modern tort took shape in response to the emergence of accidents as a social problem and its rise involved the displacement of traditional bipolar wrongs from the center of the field. Long established intentional wrongs — battery, trespass, defamation, and the like — arise out of episodic, one-off collisions between individual persons going about their lives. In an industrial, technological society, accidents are the recurring byproducts of organized and fundamental social activities. Modern fault liability emerges as the center of modern tort law in response to this social transformation. When this happens, accidents become the focal point of tort law and fault is sharply divorced from moral notions of personal responsibility and blameworthiness. To be sure, negligent wrongs remain genuine wrongs. The fault standard is an attempt to articulate what a right to the physical integrity of one’s person requires in the way of care owed by others. Failures to exercise reasonable care are wrongs when they result in harm to persons who can claim the right to such care. But they are also wrongs that may be blamelessly committed. Negligence is wrongful conduct, not culpable mens rea. We require reasonable care not because failing to be reasonably careful is always and everywhere egregiously blameworth, but because even blameless and slight negligence can inflict severe harm.

Champions of tort as private law implicitly recast tort in a pre-modern form, thereby obscuring fundamental and significant features of our law. Modern tort law responds to a pressing social problem and protects persons’ fundamental interest in physical integrity. It is a part of basic justice concerned with interactions that cannot be avoided in the course of normal modern lives — not a law which addresses random and voluntary individual interactions. And almost since its inception, modern tort law has been only one of a family of institutions that address organized, systematic, risk. Direct regulation of risk and administrative schemes are two others. This family of institutions is not sundered by a radical separation of the private law of torts from the public law of regulation. Tort law, direct regulation of risk, and administrative schemes are complementary and competitive alternatives to one another, responding to overlapping problems and articulating related values.

Keating on Corrective Justice

Gregory Keating has posted to SSRN Corrective Justice:  Sovereign or Subordinate?.  The abstract provides:

The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law — especially tort law — over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master concept of tort law; it does the explaining. In the disciplinary battles of the past few decades, economically inclined theorists of tort — especially Richard Posner — have conceived of corrective justice as subordinate whereas philosophically inclined theorists have taken it to be sovereign. The thought behind the subordinate conception is obvious enough. Ordinary tort adjudication does corrective justice; a theory of tort worthy of the name ought to explain way. The argument for the sovereignty of corrective justice is less obvious. It grows out of a critique of the economic analysis of tort developed by Jules Coleman and Ernest Weinrib. In a nutshell, they argue that corrective justice is a backwards-looking practice and is therefore poorly explained by the forward-looking logic of economic analysis.

On their face, the central concepts of negligence law — duty, breach, harm, actual and proximate cause — hang together to articulate a relationship of right and responsibility between victim and injurer. Breach of duty is a reason to hold a defendant responsible for harm done to a victim by the breach of that duty. Tort law looks backwards toward the past interactions of the parties in order to determine if the defendant should be held responsible for the plaintiff’s injury. For orthodox economic analysis, however, liability is not imposed because the defendant breached a duty of care and was the actual and proximate cause of harm done. Liability is imposed when and because we rightly conclude that the imposition of liability for past harm will induce optimal prevention of accidental harm going forward. For economics, the concepts of duty, breach, actual and proximate cause, and harm are not the real grounds of liability. They are evidentiary markers that do a respectable job of identifying cheapest cost-avoiders going forward.

This chapter argues that the corrective justice critique of economic analysis is powerful, but that the conclusion that corrective justice is the sovereign principle of tort, and perhaps even private law more generally, is not. Corrective justice in tort looks back to the violation of tort law’s primary norms. Those norms, and the values they seek to institute, deserve to be at the center of our understanding of the field. For the economic analysis of tort, the path forward may lie in moving towards the kind of indirect account of the institution now familiar in property scholarship. Such an account would give due recognition to the norms that figure prominently in tort adjudication, and seek to show how the institution as a whole is justified by its desirable consequences.

Abraham & White on the Constitutionalization of Tort Liability

Ken Abraham & Ted White have posted to SSRN First Amendment Imperialism and the Constitutionalization of Tort Liability.  The abstract provides:

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples.

If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

Citron on the Internet as It Is and Should Be

Danielle Keats Citron has posted to SSRN Cyber Mobs, Disinformation, and Death Videos:  The Internet As It Is (And As It Should Be).  The abstract provides:

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online and the rapid escalation to terroristic threats.

Every day, people are radicalized online to wreak havoc and violence. On August 3, 2019, in El Paso, Texas, a twenty-one-year old man posted a racist manifesto on 8chan and then walked into a Wal Mart with a powerful rifle, killing 20 people and injuring many others. The killer trafficked in and engaged with others in hateful conspiracy theories. 

Drnaso invites a conversation about cyber mobs, conspiracy theories, and death videos and the norms, attitudes, and laws enabling them. Right now, it is cheap and easy to wreak havoc online and for that havoc to go viral. Platforms act rationally — some might say responsibly to their shareholders — when they tolerate abuse that earns them advertising revenue and costs them nothing in legal liability. Combatting cyber-mob attacks must be a priority. Law should raise the cost of cyber-mob attacks. It is time for tech companies to redress some of the negative externalities of their business model. Platforms should not enjoy immunity from liability for user-generated content unless they have earned that immunity with reasonable content moderation practices. Education should play a role as well. As digital citizens, we need to do better.

Hiring at the University of British Columbia

The Peter A. Allard School of Law at UBC is in the process of hiring several Assistant Professors to begin in 2020-2021.  Torts is an area of particular interest.  The deadline to apply is September 10, and the link to information is here:  http://www.allard.ubc.ca/sites/www.allard.ubc.ca/files/images/homepage/assistant_professor_job_posting.pdf

They are also hiring Full or Associate Professors (any fields) and recruiting to nominate a Canada Research Chair (Tier 2) in Health Law, Law and Technology, or Legal Ethics.  A link listing UBC's current academic employment opportunities is here: http://www.allard.ubc.ca/about-us/careers-allard-school-law  

JOTWELL Torts: Green on Yeung on Computer Code as Law

At JOTWELL, Sarah Green reviews Karen Yeung's Regulation by Blockchain:  the Emerging Battle for Supremacy between the Code of Law and the Code as Law.

Hedley on Insurance's Effect on Negligence Liability

Steve Hedley has posted to SSRN The Unacknowledged Revolution in Liability for Negligence. The abstract provides:

Wide availability of insurance today makes nonsense of most of tort’s traditional justifications. No longer can it punish or deter wrongs, or deal even-handedly between claimant and defendant: the defendant simply drops out of the picture in favour of their employer or insurer. Tort therefore merely compensates, though theorists are reluctant to concede this. Modern theoretical accounts emphasise deterrence, personal responsibility and corrective justice – all of which are important goals, yet none of which has much to do with tort’s bureaucratic reality. But tort is not so easy to uproot, and the interest groups which can speak most authoritatively have too much to gain from its operations to permit substantial reform. For theorists, therefore, the justification of tort is an important problem with no plausible solution: it is an itch which constantly irritates, but which we cannot properly scratch.