TortsProf Blog

Sen. McConnell Ties Increased Stimulus Checks to the Repeal of Section 230

Sen. Mitch McConnell has introduced a bill combining $2,000 stimulus checks with the repeal of CDA Section 230.  The move is widely seen as a poison pill to scuttle the larger checks.  The Verge has coverage.

Nolan on Winfield

Donal Nolan has posted to SSRN Scholars of Tort Law:  Professor Sir Percy Winfield (1878-1953).  The piece comes from a conference at Oxford in 2018 and published as a book last year; the abstract provides:

This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.

"Personal Rights" in China's New Civil Code

China has a new civil code that will take effect on January 1st, and it includes a section on "personal rights."  George Conk has coverage at Otherwise; here is a sample:

The section - of which we will soon publish a translation - is a real contribution to China's developing civil law.  It embeds in fundamental law personal rights to life, bodily integrity, personal security from unlawful searches, personal and organizational names, health, reputation, and privacy.  It bars commercialization of organ donation while preserving the voluntary right.  Remarkably it establishes a right to be free from sexual harassment - a right the Supreme People's Court last year recognized.  But its location in the nation's first comprehensive civil code highlights and secures the principle. 

NJ: Supreme Court Accepts Attorney-Client Arbitration Agreements

In the context of a legal malpractice case, the New Jersey Supreme Court accepts arbitration clauses in attorney-client contracts, but requires a full explanation to the client of the advantages and disadvantages.  The case is Delaney v. Sills, and George Conk has commentary at Otherwise.

Evans & Pasquale on Products Liability for FDA-Regulated AI/ML Software

Barbara Evans & Frank Pasquale have posted to SSRN Product Liability Suits for FDA-Regulated AI/ML Software.  The abstract provides:

The 21st Century Cures Act confirmed the FDA’s authority to regulate certain categories of software that, increasingly, incorporate artificial intelligence/machine learning (AI/ML) techniques. The agency’s September 27, 2019 draft guidance on Clinical Decision Support Software proposed an approach for regulating CDS software and shed light on plans for regulating genomic bioinformatics software (whether or not it constitutes CDS software). No matter how the FDA’s regulatory approach ultimately evolves, the agency’s involvement in this sphere has an important – and underexamined – implication: FDA-regulated software seemingly has the status of a medical product (as opposed to an informational service), which opens the door to product liability for defects causing patient injury. When a diagnostic or treatment decision relies on FDA-regulated CDS software, will mistakes invite strict liability, as opposed to being judged by the professional or general negligence standards of care that traditionally governed diagnostic and therapeutic errors? This article explores the policy rationales for product liability suits and asks whether such suits may have a helpful role to play as an adjunct to FDA oversight in promoting safety, effectiveness, and transparency of CDS software as it moves into wider use in clinical health care settings.

Rothstein & Irzyk on Employer Liability for "Take-Home" COVID-19

Mark Rothstein and Julia Irzyk have posted to SSRN Employer Liability for "Take-Home" COVID-19.  The abstract provides:

Workplace exposure to SARS-CoV-2 has been a source of morbidity and mortality from COVID-19, especially for “essential workers,” such as those employed in health care and meatpacking. Many family members of these workers also have become infected and died. If the employee’s exposure was the result of the employer’s negligence, the family member or the family member’s estate might be able to recover from the employer using the “take-home” liability theory first developed in asbestos cases. This article discusses the elements of these cases and how they relate to workers’ compensation, OSHA enforcement, and other aspects of workplace safety and health protections.

JOTWELL Torts: Wriggins on Weiner on Intentional Tort Remedies

At JOTWELL, Jenny Wriggins reviews Merle Weiner's Civil Recourse Insurance:  Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence.

COVID-19 Suits, Preemption, and Workers' Compensation

At Law.com, Amanda Bronstad covers suits by employees against Tyson Foods.  The defendants in those cases have argued negligence claims are preempted by the Federal Meat Inspection Act and the Poultry Products Inspection Act.  In the cases filed in Iowa, defendants also cited the workers' compensation bar.  Tyson opted out of workers' compensation in Texas, the only jurisdiction in the United States in which that is possible.  Bronstad then discusses preemption as applicable to other industries.  For instance, nursing homes sued for negligence have attempted to argue preemption based on the Public Readiness and Emergency Preparedness (PREP) Act:

At least four federal judges, in New Jersey, Kansas, Pennsylvania and California, have ruled against the nursing homes, granting remand of the cases to state courts.

“The allegations are ‘you didn’t take enough steps to keep us from getting COVID.’ Courts are looking at that, saying that’s not what the PREP Act had in mind,” Robinette said. “Basically, what the PREP Act is talking about is certain drugs, biological products or devices—for instance, once a vaccine has been developed. But the suits are alleging things like your failures to do certain things have led to us getting COVID.”

Feminist Judgments: Rewritten Torts Opinions

Martha Chamallas & Lucinda Finley have edited Feminist Judgments:  Rewritten Torts Opinions.  The blurb provides:

By rewriting both canonical and lesser-known tort cases from a feminist perspective, this volume exposes gender and racial bias in how courts have categorized and evaluated harm stemming from pre-natal malpractice, pregnancy loss, domestic violence, sexual assault and harassment, invasion of privacy, and the award of economic and non-economic damages. The rewritten opinions demonstrate that when confronted with gendered harm to women, courts have often distorted or misapplied conventional legal doctrine to diminish the harm or deny recovery. Bringing this implicit bias to the surface can make law students, and lawyers and judges who craft arguments and apply tort doctrines, more aware of inequalities of race, gender, class, and sexual orientation or identity. This volume shows the way forward to make the basic doctrines of tort law more responsive to the needs and perspectives of traditionally marginalized people, in ways that give greater value to harms that they disproportionately experience.

American Museum of Tort Law Moves Online

Due to the pandemic, the AMTL is going virtual.  Rick Newman is in the process of taking the museum online.  Although it is not finished, a preview is available here.  One of the features is interviews with scholars about particularly important tort cases.  The museum is currently editing those interviews, but two are already available on the museum's YouTube channel (Anita Bernstein on T.J. Hooper and Tony Sebok on Tarasoff).  This is an expensive endeavor; you can donate here.  The full list of cases and scholars is here:

Ken Abraham, Virginia:  Byrne v. Boadle

Anita Bernstein, Brooklyn:  T.J. Hooper

Jonathan Cardi, Wake Forest:  Galella v. Onassis

Mary Davis, Kentucky:  McCormack v. Hankscraft

Nora Engstrom, Stanford:  Carroll Towing

Mark Geistfeld, NYU:  Greenman v. Yuba

Don Gifford,  Maryland:  Borel

John Goldberg/Ben Zipursky (Harvard, Fordham):  MacPherson

Mike Green, Wake Forest:  Daubert 

Leslie Kendrick, Virginia:  Carol Burnett v. National Enquirer

Jill Lens, Arkansas:  Hoffman v.  Jones

Frank McClellan, Temple:  Canterbury v. Spence

Bob Rabin, Stanford:  Escola

Chris Robinette, Widener:  United Novelty v. Daniels

Mike Rustad, Suffolk:  Liebeck

Sheila Scheuerman, Suffolk:  Sioux City & Pacific Railroad Co. v. Stout

Tony Sebok, Cardozo:  Tarasoff 

Cathy Sharkey, NYU:  Wyeth v. Levine

Ken Simons, UC Irvine:  Grimshaw v. Ford Motors

Byron Stier,  Southwestern:  Cipollone

Ted White, Virginia:  Brown v. Kendall

Yen & Gregas on an Empirical Analysis of Liability Waivers and Participation in Youth Sports

Alfred Yen & Matthew Gregas have posted to SSRN Liability Waivers and Participation Rates in Youth Sports:  An Empirical Investigation.  The abstract provides:

This article explores whether there is empirical support for the assertion that enforcing liability waivers signed by parents increases participation in youth sports. To the authors' knowledge, it is the first and only article to do so.

This inquiry is critically relevant to a sharp split in contract law. Youth sports providers typically condition a minor’s participation on a signed parental waiver of the minor’s ability to sue for negligence. There are many reasons to doubt the enforceability of such releases. They are contracts of adhesion, their terms might be unconscionable, and they expose minors to increased risk of injury. Nevertheless, states do not consistently invalidate these releases. Of states that have explicitly considered the question, roughly one-third enforce youth sports releases, and they do so for a very specific reason, namely a professed belief that enforcing youth sports releases increases youth sports participation. Thus, if enforcing youth sports releases does not actually increase youth sports participation, then the primary reason given for doing so evaporates.

Our article searches for empirical evidence by statistically analyzing a database constructed from a fifty-state survey of the law covering 1988-2014, high school sports participation numbers reported by the National Federation of State High School Associations over the same years, data from the National Center for Education Statistics, and data from the United States Census. We found no statistically significant relationship between enforcing youth sports releases and increased participation in high school youth sports.

Sharkey on Holding Amazon Liable As a Seller

Cathy Sharkey has posted to SSRN Holding Amazon Liable As a Seller of Defective Goods:  A Convergence of Cultural and Economic Perspectives.  The abstract provides:

Amazon’s e-commerce business, which offers a platform for third-party vendors, defies conventional categorization for products liability purposes. Professor Marshall Shapo’s conception of “tort law as a cultural mirror” sheds light on how products liability law has evolved so as to hold Amazon liable even as the seismic shift away from brick-and-mortar physical stores to the virtual marketplace has transformed the reasonable expectations of consumers. Holding Amazon liable is likewise supported by the economic perspective embodied in the “cheapest cost avoider” analysis; namely, that Amazon is best situated to take actions to minimize risks and prevent accidents from defective products. This convergence of cultural and economic perspectives and the emergence of a culturally specific norm of efficiency-as-responsibility in the context of the virtual marketplace, signals tort law’s ever moving march forward into the modern era.

Sharkey Reviews Recognizing Wrongs

Cathy Sharkey has posted to SSRN Modern Tort Law:  Preventing Harms, Not Recognizing Wrongs.  The abstract provides:

Part I of my review of John Goldberg and Benjamin Zipursky’s (GZ), Recognizing Wrongs (Harv. U. Press 2020) reframes the book as, first and foremost, a sustained critique of the law-and-economics, deterrence-focused view of tort law, rather than (as GZ set forth) the affirmative case for the “wrongs and redress” account of tort law. “Cheapest cost avoider” tort theory (as my chosen stand-in for instrumentalist, deterrence-based theories) plays the role of an antagonist, against which GZ construct their theory of wrongs and redress. Part II inverts the role of “cheapest cost avoider” as the protagonist of some of the most significant developments in contemporary tort law, focusing on its central role in the rise of strict products liability in tort and especially its extension to cover bystanders. Part III argues that law-and-economics deterrence-based theory holds the most promise for judges facing two primary challenges of modern torts: (1) containing modern risks at the cutting edge of the regulatory state; and (2) addressing widespread harms.

PA: Governor Vetoes COVID-19 Immunity Bill

On Monday,  Pennsylvania Governor Tom Wolf vetoed a bill that would have provided immunity to certain businesses, including schools, from COVID-19 lawsuits.  Governor Wolf got it right, for reasons I explained in an earlier post:

Yale undergraduate Josh Czaczkes, Tom Baker, & John Witt have just finished a really interesting research project.  Using a database run by Baker at Penn, the group determined that 80% of liability policies have coverage for losses for infection by virus.  Only 20 of 100 policies had an exclusion.  Thus, COVID-19 immunity would primarily benefit large insurers and not businesses, many of which are small.  The group uses the finding to oppose immunity legislation.  Their post is at Balkinization. 

Moreover, the early cases are being won by defendants.  See here and here.  Plaintiffs are having trouble proving injury and, especially, causation.  I have spoken to several plaintiffs' lawyers over the last few weeks, and they all say the same thing about COVID-19 cases.  They are very wary of them, and would only take such a case under limited conditions.  Specifically, I have heard from more than one firm that the injury would have to be death before it would be worth considering.  I think immunity is unnecessary. 

Prescription in Tort Law

The European Group on Tort Law has published Prescription in Tort Law, edited by Israel Gilead and Bjarte Askeland and published by Intersentia.  The blurb provides:

Prescription is a major legal defence that bars civil actions on a claim after the expiry of a certain period of time. Despite its far-reaching practical effects on litigation and on society at large, and the fact that it is the subject matter of pervasive legal reforms in many countries, the law of prescription (limitation of actions) is rarely discussed, analysed and compared.

To meet this challenge, this book canvasses in-depth the law of 16 selected jurisdictions (covering Europe, South Africa and the US jurisdictions) and extensively analyses in comparative perspective the elements of prescription (accrual of the cause of action, prescription periods, rules of suspension, renewal and extension and upper time limits), their interrelations, and the policy considerations (including economic analysis). Topics also covered include the notions of ‘action’, ‘claim’, and ‘cause of action’, subjective and objective prescription, statute interpretation and judicial discretion. The book introduces important insights into how the present law can be improved and, where possible, harmonised. While its main focus is the prescription of tort claims, the analysis, comparison and conclusions are highly relevant to most civil actions.

Prescription in Tort Law is the result of a three-year research project conducted by the European Group on Tort Law (EGTL) that brings together leading academics of the field. It is an invaluable resource for private lawyers.

With contributions by Bjarte Askeland (Bergen Appeal Court Judge, Norway), Ewa Bagińska (University of Gdańsk, Poland), Nina Baranowska ((formerly) University of Wrocław, Poland), Jean-Sébastien Borghetti (University Paris II Panthéon-Assas, France), Giovanni Comandé (Sant’Anna School of Advanced Studies, Italy), Eugenia Dacoronia (National and Kapodistrian University of Athens, Greece), Isabelle Durant (Université catholique de Louvain, Belgium), Israel Gilead (Hebrew University of Jerusalem, Israel), Michael D Green (Wake Forest University, United States), Ernst Karner (University of Vienna, Austria), Anne LM Keirse (Utrecht University, The Netherlands), Bernhard A Koch (University of Innsbruck, Austria), Frédéric Krauskopf (University of Bern, Switzerland), Piotr Machnikowski (University of Wrocław, Poland), Ulrich Magnus (University of Hamburg, Germany), Miquel Martín-Casals (University of Girona, Spain), Johann Neethling (University of the Free State, South Africa), Elena Occhipinti (University of Pisa, Italy), Ken Oliphant (University of Bristol, United Kingdom), Albert Ruda (University of Girona, Spain), Stefan Rutten (University of Antwerp, Belgium), Luboš Tichý (Charles University, Czech Republic), Vanessa Wilcox (European Law Institute, Austria) and Bénédict Winiger (University of Geneva, Switzerland).