Tuesday, June 30, 2020
On Friday, the Georgia Legislature adopted COVID-19 immunity for health care providers and businesses. The legislation provides both immunity and an assumption of risk defense if certain warnings are provided. JD Supra has details.
Friday, June 26, 2020
Michael Wells has posted to SSRN Some Objections to Strict Liability for Constitutional Torts. The abstract provides:
Qualified immunity protects officials from damages for constitutional violations, unless they have violated “clearly established” rights. Local governments enjoy no immunity, but may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn of these rules, in order to vindicate constitutional rights and deter violations. This article argues that the costs of these reforms would outweigh the benefits.
Tuesday, June 23, 2020
Thomas Baker, Marc Edelman & John Holden have posted to SSRN College Football in the Time of COVID-19. The abstract provides:
This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.
Monday, June 22, 2020
Aaron Twerski has posted to SSRN An Essay on the Quieting of Products Liability Law. The abstract provides:
For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a single case in which the plaintiff did not introduce a reasonable alternative design. And in all jurisdictions but one, a defendant is free to introduce risk- utility evidence as relevant to the issue of whether the product disappoints consumer expectations. Thus, whether a reasonable alternative design is required de jure, it is de facto a staple in almost all design defect cases.
Friday, June 19, 2020
As the U.S. reopens from COVID-19 quarantine, it is no surprise that businesses are asking both workers and customers to sign waivers. So far, at least 6 states--Utah, North Carolina, Louisiana, Oklahoma, Arkansas, and Alabama--have created some type of COVID-19 immunity, either through legislation or executive order. This piece from The Paducah Sun discusses the debate over the waivers. One law firm is tracking cases; it found that through Monday there were 2,741 lawsuits filed in the U.S. over COVID-19. The vast majority were over government shutdown orders and which businesses were deemed essential. Only 7 cases were filed by consumers and 49 were filed by employees over exposure to the virus.
Thursday, June 18, 2020
Rick Newman, Executive Director of the American Museum of Tort Law, interviews Deborah Ramirez about her proposal to require police officers to carry liability insurance. Police departments would pay the average premium, but officers would have to pay the excess over the average. The idea is that those officers who posed great risk would be priced out of the market, and would lose their jobs. For more details, the interview is on the AMTL's website.
Tuesday, June 16, 2020
Mike Rustad has published in the Northwestern University Law Review blog Your Right to Sue, Goodnight. The gist:
The civil justice system in the U.S. has been under an unrelenting attack since the mid-1980s. For decades “business and professional interests have been claiming that American tort law is out of control, imposing unjustified costs on defendants amounting to billions and billions of dollars annually.” Now, Senator McConnell and the corporate wrongdoer lobby have the perfect Trojan Horse—using COVID-19 as a decoy so that they can enact tort reform at the federal level. The avowed purpose of McConnell’s liability shield suggestion for businesses dealing with COVID-19 is to help the economy. However, in my opinion his true purpose is to deliver tort reform at the federal level for corporate wrongdoers, who contribute mightily to the Republican Party. Those interested in protecting the right to sue in the U.S. should say good night to Mitch McConnell’s legislative proposal.
Monday, June 15, 2020
Friday, June 12, 2020
Michael Moreland & Jeffrey Pojanowski have posted to SSRN The Moral of Torts. The abstract provides:
Tort theory is an anxious field, trying either to explain the body of tort law through a unified account or surrendering to the view that torts is just an accumulation of ad hoc “policy” judgments without a consistent explanatory basis. In this chapter, we argue that the natural law theory in the Christian tradition breaks through this impasse in tort theory by showing how the basic outlines of tort law are properly derived from principles of morality, while the details within that framework are left open for choice among a wide range of reasonable arrangements. In our view, central aspects of natural law theory such as its account of the relation of law and morality and the manner in which positive law is derived from the natural law explain and justify tort doctrine.
Wednesday, June 10, 2020
Eric Johnson has posted to SSRN Dividing Risks. The abstract provides:
The central question in the law of proximate cause is how to divide risks into parts. The leading test of proximate cause, the foreseeability test, requires the jury to decide whether the “general type” of outcome that occurred was too improbable to be foreseeable. Before the jury can address this question, though, it has to aggregate the possible outcomes of the defendant’s conduct into “general types.” In effect, then, the foreseeability test requires the jury to divide the risk into parts. So does a promising alternative to the foreseeability test, Judge Posner’s increased-risk test. Nobody has developed a workable, determinate method of dividing risks into parts, however. Instead, adherents of both tests have settled for telling juries vaguely to aggregate possible outcomes according to the “sort of mishap” that occurred. As a consequence, both tests are fundamentally indeterminate.
This Article argues that this aggregation difficulty is solvable, though only within the framework of Judge Posner’s increased-risk test. The solution lies in dividing up risks as Darwin divided up life forms – according to “community of descent.” Specifically, outcomes may be situated in relation to one another (1) on the basis of their “descent” from a particular mediating event; and (2) on the basis of their non-descent from a particular extrinsic condition. This method of dividing up the risks isn’t just determinate. When it’s used to frame the increased-risk question – that is, when it’s used to define the aggregate of possible outcomes that must be characterized by increased risk – this method of dividing the risk produces intuitively satisfying answers to a wide range of proximate cause questions.
Tuesday, June 9, 2020
Brian Fitzpatrick has posted to SSRN Can the Class Action Be Made Business Friendly?. The abstract provides:
Formal adoption of a class action mechanism is under consideration in New Zealand. The United States has had a robust class action mechanism since 1966, but it is on the wane. The reason is big businesses have turned against it. In this essay, I explain why the business community dislikes the American class action and make some suggestions on how New Zealand might design its own class action to head off similar opposition.
Monday, June 8, 2020
Michael Moreland has posted to SSRN Preemption as Inverse Negligence Per Se. The abstract provides:
Once the question of whether federal law preempts state tort law has been raised, it does not require that traditional principles of common law adjudication be discarded as well, particularly where the only available substitutes for common law categories are versions of textualist statutory interpretation or freewheeling “purposes and objectives” tests for implied preemption. This article suggests that the missing element in much of the case law and scholarship on preemption of tort claims is attention to the underlying character of the common law tort claims themselves. Such attention has been neglected partly on account of the dominant constitutional and administrative law approaches to preemption, but also on account of the tendency even in tort law to treat products liability as if it were a separate field with its own, quite different set of doctrines. My suggestion in this article is that preemption analysis in the context of state tort claims would benefit, both descriptively and normatively, by invoking the traditional tort doctrine of negligence per se but, in the preemption context, on behalf of defendants — inverse negligence per se.
Thursday, June 4, 2020
Nicholas McBride has published The Humanity of Private Law, Part II: Evaluation with Hart Publishing. The blurb provides:
Part II of The Humanity of Private Law charts a new course for English private law in the twenty-first century. Part I set out the vision of human flourishing that English private law has in mind in seeking to promote its subjects' flourishing. Part II argues in favour of a very different account of what human flourishing involves, and explains what private law would look like were it to base itself on this alternative vision of the nature of human flourishing.
sets out and evaluates different models of what human flourishing involves;
argues in favour of the view that human flourishing involves being engaged in a quest to lead a truthful life;
explains in what ways a private law that sought to foster this distinctive vision of human flourishing would be different from English private law in its current state, in particular with regard to: (i) tackling fraud; (ii) promoting freedom of speech; (iii) preserving attention capacities; (iv) protecting people from being subjected to degrading or hateful treatment; and (v) enabling people to make a fresh start in their lives; and,
considers whether and when it would be legitimate for the courts to transform English private law in the ways suggested in this volume.
Part II of The Humanity of Private Law is a radical and prophetic book that is essential reading for anyone who is interested in understanding the contribution private law can make to our living in a society that promotes the flourishing of all its members.
Hart is offering a discount:
Use the code HE6 at the checkout to receive 20% off.
Wednesday, June 3, 2020
Tuesday, June 2, 2020
Matthew Dyson has posted to SSRN Coherence and Illegal Claims. The abstract provides:
What do we want “coherence” to do in legal reasoning? That is, when we use “coherence”, what are we trying to achieve by its use rather than by using another idea? Lawyers should ask and answer a question like that about many concepts, such as “reasonableness”, “duty”, “foreseeability”, “wrongfulness”, but they have particular importance when seeking to understand how a legal system structures or holds itself together. Often this question is simply not asked, or not asked with any time or context to find a serious answer. Many judges use ‘coherence’ with good reason, but without the resources, particularly time and a setting to investigate. Many academics too call in aid the term to add weight to an argument, without detail. Poorly reasoned coherence risks other key values of a legal system, such as intellectual robustness, fairness and certainty. Coherence requires a full understanding of the institutions, reasoning, norms, substantive rules, procedures and outcomes in the objects connected to each other. This work feeds into a wider project trying to understand how and why legal systems change, particularly drawing on examples across tort law and criminal law.
(1) introduces a recent example of coherence;
(2) shows the objects of coherence reasoning: what is being made coherent with what;
(3) analyses the group of purposes which coherence is part of; and then turns to applying coherence reasoning within the context of claims in tort which are alleged to be incoherent with a criminal prohibition, in particular “sanction shifting” from a person convicted of a crime to a tortfeasor connected to the crime.
Monday, June 1, 2020
Michael Saks & Stephan Landsman have posted to SSRN The Paradoxes of Defensive Medicine. The abstract provides:
For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted by the healthcare industry even though they imply that most providers routinely engage in healthcare fraud and violate their own ethical rules. We review the evidence behind these beliefs — including direct physician surveys, clinical scenario studies, and multivariate analyses of actual case data — and find little support and numerous paradoxes. The validity vel non of the defensive medicine narrative has implications for law and legal policy, as well as healthcare economics and patient safety.