TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Friday, February 28, 2020

Abraham & White on Rethinking the Development of Modern Tort Liability

Ken Abraham and Ted White have posted to SSRN Rethinking the Development of Tort Liability.  The abstract provides:

The standard story of the development of modern tort liability is straightforward, but it turns out to be seriously misleading. The story is that, in the second half of the nineteenth century, negligence liability replaced the pre-modern forms of action as the principal basis for the imposition of liability for accidental bodily injury and property. Suits for negligence began to be brought, and insurance against liability for negligence was introduced. The tort system, and the liability insurance system that had arisen to accompany it, were then quiescent for the next half-century. Around 1970 tort liability began to expand substantially. For several decades there have been contentions that at that point there was an “explosion” of tort liability.

The problem with this story is that it trades on a misleading caricature of what was occurring in the tort system before 1970. Tort law doctrine was indeed largely quiescent during the middle four or five decades of the twentieth century, just as the story suggests, until the well-known doctrinal expansions of 1965 to 1985 began. But tort liability was not quiescent at all. The magnitude of payments made to tort victims increased exponentially between 1920 and 1970 – by some measures, at a much greater rate than after 1970 -- and the magnitude of premiums paid for liability insurance increased in the same exponential manner. In addition, after liability insurance was introduced late in the nineteenth century, it did not simply become a behind-the-scenes source of financing for tort defendants, the way a passive guarantor stands behind a debtor. Rather, between 1920 and 1970, the courts confirmed, created, and extended liability insurers’ duty to defend their policyholders in tort suits and their duty to accept reasonable offers to settle tort suits against their policyholders. Liability insurers’ active performance of those duties created an unrecognized dynamic cycle that intensified the growth of tort liability, bringing it to the point where it stood in 1970. This Article rethinks the conventional story, by examining the important developments in tort liability and liability insurance that preceded the “explosion” of tort liability, and offers historical, political, and intellectual reasons why the misleading conventional story took root.

February 28, 2020 in Scholarship | Permalink | Comments (0)

Thursday, February 27, 2020

USSC: No Bivens Claim in Cross-Border Shooting

On Tuesday, the United States Supreme Court ruled the parents of a 15-year-old boy cannot sue the federal agent who shot him across the U.S.-Mexico border.   NBC News has coverage, and Howard Wasserman reviews the decision at Prawfs.

February 27, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, February 26, 2020

OH: Bill to Lift Noneconomic Damages Cap in Rape Cases

In 2016, an Ohio Supreme Court ruling threw out a $3.6M jury award to a woman who had been raped by her pastor at the age of 15.  The court reduced the award to around $385,000 based on a noneconomic damages cap.  Proposed legislation would exempt rape victims from the cap.  A similar effort failed right after the 2016 ruling.  Surely exempting rape from the cap is the decent thing to do.  The Washington Times has details.

February 26, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, February 24, 2020

Bettman on Supreme Court of Ohio on Wrongful Termination

At Legally Speaking Ohio, Marianna Brown Bettman provides a thorough analysis of the Supreme Court of Ohio's decision in House v. Iacovelli.  In that case, the court stated:  “It is less likely that a wrongful-termination-in-violation-of-public-policy claim is necessary when remedies for statutory violations are included in the statutory scheme.”  The court rejected the wrongful discharge claim; the fact there was no remedy for the individual employee affected did not alter the court's decision.

This reminds me of a recent Iowa case:  Ferguson v. Exide Techs., Inc., 936 N.W.2d 429, 434-435 (Iowa 2019) (“[W]hen the legislature includes a right to civil enforcement in the very statute that contains the public policy a common law claim would protect, the common law claim for wrongful discharge in violation of public policy becomes unnecessary.”).  The major difference between the two is that the Iowa holding leaves the individual employee with a claim. 

February 24, 2020 in Current Affairs, Weblogs | Permalink | Comments (0)

Friday, February 21, 2020

IA: Amendment Proposed for Med Mal Cap

In 2016, Iowa adopted a $250,000 cap on noneconomic damages for medical malpractice, but excluded cases involving permanent disfigurement or death.  Now a bill has been proposed to remove the exceptions.  Iowa Public Radio has the story.

February 21, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, February 20, 2020

A Tribute to Francis McGovern

from Duke Law is here.

February 20, 2020 in TortsProfs | Permalink | Comments (0)

Tuesday, February 18, 2020

Francis McGovern (1945-2020)

Brian Leiter is reporting that Francis McGovern, the longtime Duke faculty member and class-actions expert, has passed away.  He worked until the end; I was with him at a conference less than two weeks ago.

February 18, 2020 in TortsProfs | Permalink | Comments (0)

Monday, February 17, 2020

Gilles & Friedman on Issue Class Actions

Myriam Gilles & Gary Friedman have posted to SSRN The Issue Class Revolution.  The abstract provides:

In 2013, four Supreme Court Justices dissented from the decision in Comcast v. Behrend establishing heightened requirements for the certification of damages class actions. In a seemingly off-handed footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes, by certifying a class under Rule 23 (c)(4) on “liability” issues only, and “leaving individual damages calculations to subsequent proceedings.” The dissenters were on to something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across a number of substantive areas, after decades of judicial hostility. This article offers a bold and original vision for the issue class procedure, promising scale efficiency while sidestepping the doctrinal land mines that dot the class action landscape. It is a vision rooted in sober pragmatism and an account of the economic incentives confronting entrepreneurial law firms as they consider investing in aggregate litigation under Rule 23(c)(4).

February 17, 2020 in Scholarship | Permalink | Comments (1)

Friday, February 14, 2020

Baker on Uncertainty and the Insurance Runoff Market

Tom Baker has posted to SSRN Uncertainty>Risk:  Lessons for Legal Thought from the Insurance Runoff Market.  The abstract provides:

Insurance ideas inform legal thought: from tort law, to health law, to theories of distributive justice. Within legal thought, insurance is often conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. Significantly for tort theory, this ideal type supports a restrictive vision of liability-based regulation, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work has criticized this restrictive vision on normative grounds. This article criticizes that vision on empirical grounds. The article describes an emerging secondary insurance market – the insurance runoff market – that transfers liabilities under insurance policies issued many years in the past. Having started with old asbestos and hazardous waste liabilities, the market now extends to other liabilities that have not worked out well for the companies that insured them, including workers compensation, savings-linked life insurance, pension and annuity guarantees, and long term care insurance.

Runoff specialists reprice these legacy insurance liabilities with hindsight, consolidate them, and take calculated risks that encourage capital to enter the runoff market. That market transforms the uncertainties of the past into today’s tradeable risks, bringing into the open a dynamic that pervades insurance markets: namely, the promises that are made in all insurance policies get bundled and reconceptualized into sets of liabilities that are valued and revalued, further combined and redefined over time.

Through the lens of the runoff market we can see many ways that insurance organizations manage uncertainty, revealing the resilience in insurance markets and the flexibility and innovation that produce that resilience. The runoff market counsels us to give much less weight to arguments that expanding liability will undermine insurance markets. Insurance already involves so much uncertainty, and insurers have so many ways to manage it, that the most likely result will always be that they will continue to muddle through.

February 14, 2020 in Scholarship | Permalink | Comments (0)

Thursday, February 13, 2020

Gilead on Simplifying Negligence

Israel Gilead has posted to SSRN Simplifying the Complexities of Negligence Law--A Joint Academic/Judicial Proposal.  The abstract provides:

Over a century, Common Law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (conduct, harm causation, duty), the test, and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element.

Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli Justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 CSS’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

February 13, 2020 in Scholarship | Permalink | Comments (0)

Tuesday, February 11, 2020

Epstein & Sharkey 12th Edition Available Soon

Cases and Materials on Torts, Twelfth Edition by Richard A. Epstein and Catherine M. Sharkey will be available soon. Cases and Materials on Torts preserves historical and conceptual continuity between the present and the past, while addressing the most significant contemporary controversies in such fast-moving areas like public nuisance, global warming, and product liability, with new litigation against internet providers. Toward these dual ends, Richard A. Epstein and Catherine M. Sharkey have retained in the Twelfth Edition the great older cases, both English and American, that have proved themselves time and again in the classroom, and which continue to exert great influence on the modern law. Our book also provides a rich exploration of the dominant corrective justice and law-and-economics approaches to tort law, as exemplified both in the retained and new cases and materials.

Book Information:

Cases and Materials on Torts, Twelfth Edition

Richard A. Epstein, New York University Law School

Catherine M. Sharkey, New York University Law School

Pages: 1,328

ISBN: 9781543804454

Part of the Connected Casebook Program

Visit to view more information

To access teaching materials for this title, you will need a validated professor account on If you do not yet have a validated professor account, you may register at Account validation may take 1-2 business days. Once validated, you may log into your account using your own personal login, go to the product page for this title or any Wolters Kluwer title, and scroll down to access the Professor Resources once they have been made available on the site.



February 11, 2020 in Books, Teaching Torts | Permalink | Comments (0)

Monday, February 10, 2020

PA: Legislative Committee Makes No Recommendation on Proposed Med Mal Venue Rule

In 2002, the legislature passed a  law that, among other things, limited venue in med mal cases to the county in which the cause of action arose.  The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure to fix a constitutional problem with the legislation.  About a year ago, the court announced it was considering eliminating the restriction.  A committee of the legislature requested a year to study the change.  That report was released last week, and the committee stated it had insufficient data to assess the impact of the proposed change.  No recommendation was made.  It is likely there will be a renewed period of public comment prior to any decision by the court.  JD Supra has details.

February 10, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, February 5, 2020

JOTWELL Torts: Zipursky on Fallon on Constitutional Torts

At JOTWELL, Ben Zipursky reviews Richard Fallon's Bidding Farewell to Constitutional Torts.

February 5, 2020 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 3, 2020

Selbst on AI and Negligence

Andrew Selbst has posted to SSRN Negligence and AI's Human Users.  The abstract provides:

Negligence law is often asked to adapt to new technologies. So it is with artificial intelligence (AI). But AI is different. Drawing on examples in medicine, financial advice, data security, and driving in semi-autonomous vehicles, this Article argues that AI poses serious challenges for negligence law. By inserting a layer of inscrutable, unintuitive, and statistically-derived code in between a human decisionmaker and the consequences of that decision, AI disrupts our typical understanding of responsibility for choices gone wrong. The Article argues that AI’s unique nature introduces four complications into negligence: 1) unforeseeability of specific errors that AI will make; 2) capacity limitations when humans interact with AI; 3) introducing AI-specific software vulnerabilities into decisions not previously mediated by software; and 4) distributional concerns based on AI’s statistical nature and potential for bias.

Tort scholars have mostly overlooked these challenges. This is understandable because they have been focused on autonomous robots, especially autonomous vehicles, which can easily kill, maim, or injure people. But this focus has neglected to consider the full range of what AI is. Outside of robots, AI technologies are not autonomous. Rather, they are primarily decision-assistance tools that aim to improve on the inefficiency, arbitrariness, and bias of human decisions. By focusing on a technology that eliminates users, tort scholars have concerned themselves with product liability and innovation, and as a result, have missed the implications for negligence law, the governing regime when harm comes from users of AI.

The Article also situates these observations in broader themes of negligence law: the relationship between bounded rationality and foreseeability, the need to update reasonableness conceptions based on new technology, and the difficulties of merging statistical facts with individual determinations, such as fault. This analysis suggests that though there might be a way to create systems of regulatory support to allow negligence law to operate as intended, an approach to oversight that it not based in individual fault is likely to be a more fruitful approach.

February 3, 2020 in Scholarship, Web/Tech | Permalink | Comments (0)