TortsProf Blog

ILR on Third Party Litigation Funding

The Chamber's Institute for Legal Reform has published Selling More Lawsuits, Buying More Trouble:  Third Party Litigation Funding A Decade Later.  The abstract provides:

When ILR documented the early development of third party litigation funding (TPLF) in the U.S., the industry barely existed. Now, according to a recent survey, U.S. funders alone have over $9.5 billion under management. ILR’s research looks at how exactly this explosive growth has happened, how the industry is fueling abusive litigation, how the few TPLF agreements that have been made public reveal deep ethical issues with the practice, and how lawmakers and rule makers can approach TPLF reform.

Among the solutions documented in the paper are proposals that:

• • TPLF agreements must be disclosed to all parties in litigation, to minimize conflicts of interest and ensure plaintiffs retain control of their case
  • Fee-sharing agreements between lawyers and non-lawyers should be banned (as several bar associations have already done) in order to preserve the independent professional judgment of attorneys
  • TPLF should not be permitted in the class action context, because funding creates a potential obstacle to class counsel and named plaintiffs satisfying their fiduciary duties to the class

Borghetti & Whittaker: French Civil Liability in Comparative Perspective

Jean-Sébastien Borghetti & Simon Whittaker have published French Civil Liability in Comparative Perspective with Hart Publishing.  The blurb provides:

The French law of torts or of extra-contractual liability is widely seen as exceptional. For long it was based on a mere five articles of the Civil Code of 1804, but on this foundation the courts and legal scholars have constructed liabilities for fault and strict liability of an extraordinary breadth and significance. While the rest of the general law of obligations (including contract) in the Civil Code was reformed in 2016 by executive ordonnance, this area was left aside, being the subject in 2017 of a proposal by the French Government for the legislative reform of the law of civil liability, a new legislative category to include both contractual and extra-contractual liability. This work considers important aspects of this developing area of French law in a series of essays by French lawyers and comparative lawyers working in French law and other civil law systems. In doing so, it provides insight into the doctrinal thinking and judgments of French lawyers as well as the possible directions in which this area of the law may be developed in the future.

A 20% discount is available on the flyer:  Download Borghetti_Whittaker_flyer

CFP: Conference on Indigenous Private Law

The Journal of Commonwealth Law, in cooperation with the Faculties of Law at the Université de Montréal and the University of Cape Town, will host a symposium devoted to exploring the issues inherent in Indigenous private law. We call for papers specifically on Indigenous Private law issues. What norms govern matters relating to Property, Persons and Family, or Succession for example? Beyond that, is there an Indigenous law of Contracts or Torts, or a law relating to (commercial) associations? We invite perspectives from around the Commonwealth and are open to different theoretical frames of reference or methodologies of inquiry. We are also open to papers which discuss how State laws relate to Indigenous private law issues, or the regulation of the Indigenous economy.

The conference will be held at the Université de Montréal on May 8, 2020, and the papers will be published in the Journal of Commonwealth Law, a peer-reviewed journal devoted to exploring legal issues from a multi-jurisdictional perspective. We seek contributions from both established and new scholars from around the Commonwealth, Ireland and the United States.

For more details:  Download CFP Indigenous Private Law Conference

Azmat on Civil Recourse Theory

Ahson Azmat has posted to SSRN Tort's Indifference:  Conformity, Compliance, and Civil Recourse.  The abstract provides:

Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

The piece is forthcoming in the Journal of Tort Law and was Larry Solum's Download of the Week.

"New Frontiers in Torts" Symposium at Southwestern

The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles.  The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish.  The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion.  Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms.  In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others.  The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus.  The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts.  Registration for the symposium is available now.

Speakers and moderators at the symposium will include the following:

• Ronald Aronovsky, Professor of Law, Southwestern Law School;
• Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
• Alan Calnan, Professor of Law, Southwestern Law School;
• Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
• James Fischer, Professor of Law, Southwestern Law School;
• Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
• Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
• Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
• Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
• Francis McGovern, Professor of Law, Duke Law School;
• Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
• Brian Panish, Founding Partner, Panish, Shea & Boyle;
• R. Rex Parris, Founding Partner, Parris Law Firm;
• Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
• Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
• Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
• Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
• Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
• Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
• Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
• Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
• Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.

Cross-posted from Mass Tort Litigation Blog.

19th Annual Conference on European Tort Law

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 the 19^th Annual Conference on European Tort Law, which will be held in Vienna from April 16 to 18, 2020.

The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe. A Special Session on Saturday morning is dedicated to the increasingly relevant topic of ‘Liability for Digital Technologies’.

The flyer is here:  Download ACET2020_Folder_Email

Zick on the Costs of Dissent

Timothy Zick has posted to SSRN The Rising Costs of Dissent:  Public Protest and Civil Liabilities.  The abstract provides:

This Article holistically examines the threat that civil liabilities and costs pose to effective political protest. The immediate impetus for examining the costs of dissent is the appearance of new civil liability claims, including “negligent protest,” “conspiracy to protest,” and “malicious petitioning.” However, these claims merely add to an already challenging and burdensome protest environment, which imposes legal, regulatory and cultural restrictions on protest activities. In addition, a wide variety of more traditional costs ranging from permit fees to punitive damages also affects contemporary protest. Owing to their potential chilling effect on expressive activities, courts have special obligations to review both new theories and traditional costs skeptically, to demand precision in terms of liability standards, and to reject civil liability when it is inconsistent with First Amendment rights and commitments. Applying these guidelines, the Article urges courts to reject new theories of liability such as “negligent protest” and “malicious petitioning.” It also encourages courts and lawmakers to more carefully consider the First Amendment implications of other aspects of the cumulative – and rising – costs of dissent.

Conk on the Cato Institute and Qualified Immunity

At Otherwise, George Conk details the Cato Institute's recent battle against qualified immunity.

Goldberg & Zipursky: Recognizing Wrongs

John Goldberg & Ben Zipursky have published Recognizing Wrongs from Harvard University Press.  From the blurb:

Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.

Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.

Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

I got my copy yesterday; get yours here. 

Smith on the Structure of Remedial Law

Stephen Smith has posted to SSRN Rights, Wrongs, and Injustices:  The Structure of Remedial Law--Introductory Text.  The abstract provides:

In this text, which comprises the 'Preface' and 'Introduction' to Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019), I set out the foundations for the first comprehensive account of the scope, foundations, and structure of the law governing private law remedies (understood here as judicial rulings) in common law jurisdictions.

Substantively, this introductory text explains what remedial law is, why it is important, and how common law lawyers’ failure to take remedies seriously as a legal subject has impoverished their understanding not just of remedial law, but also of the broader private law. As part of this explanation, it also introduces four themes that run through the book’s examination of particular remedies. First, the question of what courts should do when individuals seek their assistance (the focus of remedial law) is different from the question of how individuals should treat one another in their day-to-day lives (the focus of substantive law). Second, remedies provide distinctive reasons to perform the actions they command; in particular, they provide reasons different from those provided by either rules or sanctions. Third, remedial law has a complex relationship to substantive law. Some remedies are responses to rights-threats, others to wrongs, and yet others to injustices. Further, remedies respond to these events in different ways: while many remedies merely replicate substantive duties, others modify substantive duties and some create entirely new duties. Finally, remedial law is underpinned by general principles — principles that cut across the traditional distinctions between ‘legal’ and ‘equitable’ remedies.

Goudkamp on Beever on a Theory of Tort Liability

James Goudkamp has posted to SSRN Book Review:  A Theory of Tort Liability.  The abstract provides:

Allan Beever’s latest book, A Theory of Tort Liability, builds on his previous major theoretical works regarding tort law, those being Rediscovering the Law of Negligence, and The Law of Private Nuisance. In the same vein as his earlier projects, Beever defends a rights-based conception of tort law. His ultimate concern in A Theory of Tort Liability is to explain 'how [the] rights [that underpin tort law] relate to each other and ground a systematic form of liability'.

Polsky on Federal Tax Implications for PI Plaintiffs and Lawyers

Gregg Polsky has posted to SSRN Taxing Litigation:  Federal Tax Concerns of Personal Injury Plaintiffs and Their Lawyers.  The abstract provides:

This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount of damages awarded. These attempts have been met with varying degrees of success, depending on the jurisdiction and context.

The Article then addresses the personal tax issues of trial lawyers themselves. Structured attorney fee arrangements, whereby these lawyers attempt to defer tax on contingent fees, are discussed. The tax deductibility of litigation costs advanced by contingent fee lawyers to their clients is considered. Finally, the Article concludes with a discussion of how provisions of the 2017 Tax Act might affect trial lawyers.

NJ: Public Defenders and the Tort Claims Act

On Monday, the New Jersey Supreme Court heard oral arguments in the case of a wrongly convicted man now suing his public defender.  The court is considering two issues.  First, whether an attorney acting on behalf of the government to represent a private client, where representation is required by the constitution, is entitled to protections under the state's tort claims act when sued for legal malpractice.  Second, whether the plaintiff's loss of liberty is separate from pain and suffering.

George Conk represented the state bar association on the first issue.  He has details at Otherwise.

Pasquale on Data-Informed Duties in AI Development

Frank Pasquale has posted to SSRN Data-Informed Duties in AI Development.  The abstract provides:

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to industry to help it avoid preventable accidents. It will also assist a judiciary that is increasingly called upon to develop common law in response to legal disputes arising out of the deployment of AI.

JOTWELL Torts: Sebok on Herstein on Moral Responsibility in Negligence

At JOTWELL, Tony Sebok reviews Ori Herstein's Nobody's Perfect:  Moral Responsibility in Negligence.

Duff on Expanding Benefits in Workers' Comp

Michael Duff has posted to SSRN Post-Traumatic Stress Disorder (PTSD) Coverage and other Expanding Benefit Changes in the Workers' Compensation Insurance Marketplace:  Academic Legal Perspective.  The abstract provides:

This paper discusses the increased use of causation presumptions in workers' compensation cases involving firefighters and other first responders. It also considers increasing workers' compensation coverage of post traumatic stress disorder with respect to those same categories of workers.The paper discusses how workers' compensation coverage of certain conditions tends to parallel the growth of potential tort liability, observes that disease presumptions were a feature of early 20th century workers' compensation statutes (and so are not new), and argues that recognition of workers' compensation "mental-mental" claims has been consistent with "zone of danger" expansion of the negligent infliction of emotional distress cause of action.