Wednesday, May 27, 2020
Nora Engstrom & Amos Espeland have posted to SSRN Lone Pine Orders: A Critical Examination and Empirical Analysis. The abstract provides:
Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders require plaintiffs to provide to the court prima facie evidence of injury, exposure, and specific causation — sometimes early, and usually on pain of dismissal. Though they’ve taken root in a hazy space outside of the Federal Rules of Civil Procedure, these case management orders are frequently issued, and they play an important role in the contemporary litigation and resolution of mass torts. But although Lone Pine orders are common, potent, and increasingly controversial, they have mostly fallen under the academic radar. Even their key features are described inconsistently by commentators and courts. This Essay pulls back the curtain. Drawing on a unique hand-coded data set, this Essay describes the origin and evolution of Lone Pine orders, sketches poles of the debate surrounding their use, and offers empirical evidence regarding their entry, content, timing, and effect.
Tuesday, May 26, 2020
Ronen Avraham & Tony Sebok have posted to SSRN An Empirical Investigation of Third Party Consumer Litigant Funding. The abstract provides:
This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States.
Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our funder rejected about half the applications, as well as was cautious about investing too much in a single case, thus preserving the incentives of the client and her lawyer to exert optimal effort. We find that the funder suffered losses in 12% of the cases primarily because of complete defaults. Even in the cases the funder made profit we find a surprising gap between the markup that the funder was supposed to receive from consumers based on the contract between them and the markup the funder actually received. This gap stems both from clients’ defaults as well as from haircuts that the funder gave to the clients.
On the troubling side we find that the funder used controversial techniques to calculate the amount due from the clients. Specifically, the funder used various types of interest compounding, minimum interest periods, interest buckets and fees to add costs to the contract. Accounting for defaults, haircuts, fees, etc., we find that the funder makes about 44% a year on each case. We are also the first to shed light on the role lawyers play in this industry. We find that some law firms are better than others in getting better treatment of their clients both before and after they received funding.
This study provides important concrete and specific data to policymakers and legal scholars interested in litigation finance. While we cannot assess whether the overall welfare effects from funding is positive or negative, we suggest that consumers should be better protected by reducing the opacity and complexity of the funding contracts as well as by requiring lawyers to do more to protect their clients who seek third party funding.
Monday, May 25, 2020
Richard Wright has translated Karl Engisch on causation into English. The abstract provides:
This work by Karl Engisch was, as far as I am aware, the first to reject the traditional but-for / sine-qua-non test as the exclusive test of factual causation, or even as a proper test when employed, as usually assumed, through hypothetical analysis of what might otherwise have occurred rather than real world analysis of what actually occurred. Engisch demonstrated the defects of the but-for / sine-qua-non test in duplicative and preemptive overdetermined causation situations and the proper employment, instead, of a "covering law" analysis, according to which actual facts are tested for their causal status in singular instances through subsumption under the laws of nature to reach the correct answers. This work is a landmark in the German legal literature and likely had a significant impact on Hart and Honoré's later landmark book, Causation in the Law. Honoré, at least, likely read all of it. This is a translation only of Part II, The Condition Theory. The translation was initially done using Google Translate, which works quite well as an initial translation if one eliminates the carriage returns at the end of each few words in the box containing the text to be translated, but the resulting text sometimes needed to be revised based on personal knowledge. I welcome advice regarding any significant errors in translation.
Friday, May 22, 2020
Henry Smith is the Reporter for the Restatement (Fourth) of Property; he is joined by John Goldberg as an Associate Reporter in charge of the property torts. This 30-minute video covers basics of Tentative Draft No. 1, which would have been before the members at the ALI's Annual Meeting this month. John addresses trespass to land and additional trespass provisions the project intends to cover.
Thursday, May 21, 2020
Wednesday, May 20, 2020
Tuesday, May 19, 2020
The American Museum of Tort Law in Winsted, Connecticut is the only museum in the United States dedicated exclusively to law. Two items recently added to its website may be of interest. First, a video in which Executive Director Rick Newman interviews Tim Lytton about COVID-19 immunity. Second, an open letter written to President Trump and members of Congress arguing that COVID-19 immunity for businesses is a bad idea.
Monday, May 18, 2020
The [Senate Judiciary [C]]ommittee focused primarily on the question of whether to give businesses immunity from lawsuits over COVID-19. That wouldn’t be a good idea. But luckily, the hearing unearthed the real remedy to reassure businesses that it’s safe to reopen: giving them clear federal rules that will protect both well-meaning business owners and the ability to hold bad actors accountable. Now it’s up to the Trump administration to make that happen.
The entire editorial is here.
Friday, May 15, 2020
Writing at the Washington Legal Foundation, Mark Behrens and Jennifer Artman discuss recent Missouri legislation on punitive damages and consumer protection. Regarding punitive damages:
The new law codifies a clear standard of liability for punitive damages. Punitive damages will now be limited to egregious cases where a “defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The standard returns punitive damages to their intentional tort roots. See Klingman v. Holmes, 54 Mo. 304, 308 (1873) (exemplary damages “where an evil intent has manifested itself”). A separate but similar standard is provided for personal injury claims against healthcare providers.
The new law also codifies the “clear and convincing evidence” burden of proof standard for punitive damages that has been applied by Missouri courts. This standard reflects the quasi-criminal nature of punitive damages by taking a middle ground between the ordinary civil standard (“preponderance of the evidence”) and the criminal law standard (“beyond a reasonable doubt”).
Thursday, May 14, 2020
Wednesday, May 13, 2020
Cathy Sharkey has posted to SSRN The Opioid Litigation: The FDA is MIA. The abstract provides:
Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have weighed in on the preemption defense in the opioid cases before them; instead, it is to highlight the appropriate inquiry in which the courts should engage. Namely courts should scrutinize the regulatory actions taken by the FDA and evaluate the extent to which state tort law actions fall within or outside of the bounds of the risk analysis already undertaken by the FDA. Such an analysis would put pressure on the FDA to weigh in — either on its own or as invited by the courts — on the balance between its regulatory actions and the need for state tort law causes of action. The courts would then scrutinize input from the agency under “hard look” review. No longer could the FDA remain on the sidelines, as it has to date, amidst a public health crisis that is now playing out in the courts.
Tuesday, May 12, 2020
Friday, May 8, 2020
Steve Hedley has posted to SSRN Tort: The Long Good-Bye. The abstract provides:
Throughout history, tort – civil liability for wrongdoing – has been a prominent feature of many legal systems. By compelling wrongdoers to compensate their victims, two immediate social needs are satisfied (wrongdoers are penalised, their victims supported), as are other goals (public order is upheld, justice is seen to be done). Yet in modern circumstances tort is less useful. Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless. The main advantage of tort liability – that it contributes to a variety of essential policy aims – now makes it look muddled, or even an obstacle to progress. Tort is therefore bent out of shape in separating these aims. Yet we cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities.
Thursday, May 7, 2020
Tuesday, May 5, 2020
Goran Dominioni has posted to SSRN Biased Damages Awards: Gender and Race Discrimination in Tort Trials. The abstract provides:
Current U.S. tort law incentivizes potential tortfeasors to target members of underprivileged social groups by using gender and race-based statistical tables life expectancy; work-life expectancy and average wage) to award damages. Legal scholars have long criticized this practice from the point of view of distributive justice but supported it on welfarist grounds. Recent research in law and economics has however cast doubts on the efficiency of this practice. On this basis, some propose abandoning it in favor of gender and race neutral tables. In this article, I contribute to this debate by analyzing from a behavioral law and economics perspective the welfare effect of using gender and race-based statistical tables. The analysis reveals that, even from a welfarist perspective, once we relax rationality assumptions, we should use gender and race neutral tables. I also develop a comparative analysis of the use of statistical tables in England, France, Italy and the U.S. With some minor exception, contrary to the U.S., European courts (especially in France and Italy) adopt gender and race neutral tables to award damages in tort trials. Based on the proposed behavioral law and economics analysis I conclude that European legal systems are therefore more in line with welfarist considerations and that U.S. courts should abandon the use of gender and race-based statistical tables in favor of neutral ones. I also argue that the European approaches could provide useful guidance to American courts on alternative methods to award damages.
Monday, May 4, 2020
Tim Lytton, writing at The Conversation, explains "Why offering businesses immunity from coronavirus liability is a bad idea".
Updated: Today Tim published a related piece in The Regulatory Review: "Businesses that Reopen Too Soon Should be Subject to Tort Liability".
Friday, May 1, 2020
Nicholas McBride has posted to SSRN Legal Obligations to the Dead. The abstract provides:
It is generally accepted that legal obligations that are owed to the estate of someone who has died cannot be justified on the basis of the post-mortem interests of the deceased, as the deceased has no such interests. This paper examines the arguments that can be made for such obligations being owed in order to protect the ante-mortem interests of the deceased. I argue that the most popular such argument - what I call the 'Argument from Sacrifice' - is much more limited than is commonly supposed, if we correctly understand what is involved in someone's making a sacrifice. I go on to argue that no argument can be made in favour of people's owing the estate of someone who has died an obligation not to unjustly defame the deceased.