Friday, January 29, 2021
Ken Abraham has posted to SSRN Police Liability Insurance after Repeal of Qualified Immunity, and Before. The abstract provides:
Recently there have been calls for and legislation proposed to repeal or modify the defense of qualified immunity in suits against police for deprivation of individuals' civil rights under Section 1983. These reforms would expand the liability of police by closing off a defense that limits such liability. An issue that naturally arises in connection with these possible reforms is the impact they could have on the availability and affordability of insurance against liability imposed under Section 1983. The market for insurance against such liability is already tight. Municipalities and law enforcement organizations are paying higher premiums for less coverage, because liability has been expanding, and because the scope of future expansion is uncertain.
This Article discusses the current state of the insurance market and predicts that repeal of qualified immunity under Section 1983 would likely aggravate a market that is already in turmoil. Most of the devices that insurers sometimes use in other lines of liability insurance to manage the challenges they face are not suited for addressing the underlying causes of market turmoil. Consequently, we can expect that repeal of qualified immunity would generate more of what is already occurring – coverage would become even less available, and the coverage that municipalities are able to buy would provide less insurance for even higher premiums.
Thursday, January 28, 2021
Nursing homes across the country are invoking the Public Readiness and Emergency Preparedness (PREP) Act to claim immunity from COVID-19 suits. The PREP Act was originally passed in 2005 in order to encourage production of emergency vaccines during an epidemic by providing immunity to pharmaceutical manufacturers. The Trump administration invoked the Act in March relating to COVID-19:
It authorizes the Secretary of the Department of Health and Human Services (HHS), during a public health emergency, to shield from liability makers of “countermeasures” such as diagnostic tests, protective gear and vaccines like those developed by Pfizer Inc, Germany’s BioNTech and Moderna Inc.
The PREP Act does not apply to instances of serious injury or death caused by willful misconduct; when immunity applies, the injured person may seek compensation from a government fund (though most claims are denied).
All rulings have been against nursing homes so far, but pleading the Act, which allows defendants to move from state to federal court, can buy them time. In December, the Trump administration added agency guidance in favor of nursing homes. Only one ruling, against a defendant, has come down since the guidance, so it remains to be seen whether nursing homes will begin winning cases. Tom Hals at Reuters has the story.
Wednesday, January 27, 2021
Rebecca Stone has posted to SSRN The Circumstances of Civil Recourse Theory. The abstract provides:
What circumstances create the need for an institution that conforms to civil recourse theory? I consider polities that vary in the extent to which they instantiate justice and argue that only a moderately non-ideal polity has a need for such an institution. When a polity gets close to the ideal, the polity needs institutions of corrective justice. When the polity gets very far from the ideal, tort law is at best instrumentally justified. Somewhere in between those two extremes, a civil recourse conception has significant justificatory advantages over both corrective justice and instrumental accounts. Even under these conditions, however, it remains difficult to explain within the confines of civil recourse theory why enforcement of tort law’s primary norms should remain in the hands of the victim. I suggest a possible explanation, but it requires us to jettison the claim that the wrongs of tort law are genuine wrongs.
Tuesday, January 26, 2021
Yotam Kaplan has posted to SSRN In Defense of Compensation. The abstract provides:
In recent years, tort victims in the U.S. have been finding it increasingly difficult to secure compensation through the legal system. This decline of compensation is the result of a decades-long campaign by corporate defendants to reshape the litigation landscape in their own favor. The most recent volley in this ongoing battle is an unprecedented, forceful attack against compensation launched by the Trump Administration. Regrettably, the inaccessibility of compensation often spells tragedy for tort victims. To justify these attacks, supporters of the anti compensation campaign utilize the economic theory of tort law to formulate forceful arguments against compensation as a general legal principle.
This Article demonstrates that the prevailing economic argument, and the legal order that follows therefrom, is based on a fundamental oversight. In particular, current economic theory fails to consider the possibility of investments by victims to shift harm to others. This Article is the first to examine the possibility of harm shifting in the context of tort doctrine.
This additional consideration proves to be crucial for the analysis of compensation. Existing economic theory argues that compensation is “inefficient” as it annuls victims’ incentive to invest in self-protection. This argument is reversed once we consider the possibility of harm-shifting. When investing to protect themselves, tort victims can pass harms on to others. Such investments are wasteful as they are designed only to redistribute harms, not to eliminate them. Therefore, compensation can actually prove beneficial precisely because it annuls victims’ incentive to invest in self-protection.
Once harm-shifting investments are considered, the economic argument against compensation is overturned. The case, therefore, for compensation is stronger than economic theory currently leads us to believe, and action must be taken to reverse the trending decline of compensation.
Thursday, January 21, 2021
Gregory Parks & Elizabeth Grindell have posted to SSRN two pieces on hazing. The first is The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability. The abstract provides:
In this article, we explore the criminal liability that adheres to individuals and organizations as well as the development of criminal statutes in this domain. Also, we grapple with member, chapter, and national organization civil liability as well as university and university staff civil liability. This article is part of a series of articles that have tried to make sense of the underlying factors that undergird and propel hazing. It also serves as a basis for a book trilogy I am currently working on about hazing—its roots and solutions.
The second is The Litigation Landscape of Fraternity and Sorority Hazing: Defenses, Evidence, and Damages. The abstract provides:
In this article, we explore the various approaches to litigation defense that may be employed—e.g., the role of the insurance industry, arbitration and its pitfalls, assumption of risk, comparative fault, contributory negligence, and consent. We also explore evidentiary matters—e.g., poems and songs, signs and symbols, social media, organizational culture, how discovery devices may be used, and the role of expert witnesses. Lastly, we explore damages—general, actual, punitive, and the difficulty of collecting them.
Tuesday, January 19, 2021
Monday, January 18, 2021
Several students in my Torts class have requested a reading list on tort theory. What should be part of a basic tort theory reading package for students? At a minimum, I think it should cover individualized justice, deterrence, compensation/loss-spreading, and pluralist theories. I seek your collective wisdom. Don't be shy about recommending your own work.
Thursday, January 14, 2021
Tuesday, January 12, 2021
I have posted to SSRN Scholars of Tort Law: Professor William Lloyd Prosser (1898-1972). The abstract provides:
This chapter, presented at Oxford at the “Scholars of Tort Law” conference, is concerned with William Prosser, the most important U.S. tort scholar of the twentieth century. Prosser exerted considerable influence on the development of several specific tort doctrines, notably strict products liability, privacy, and intentional infliction of emotional distress. Instead of his well-known contributions to these discrete torts, this chapter focuses more broadly on Prosser’s overall effects, particularly regarding the paramount tort of negligence. Prosser attempted to adjust negligence to two Realist challenges: Realists’ belief in the public nature of seemingly private disputes and the undermining of certainty caused by emphasising the facts of each case. To the first challenge, Prosser reconceptualised the elements of negligence as involving public policy choices. To the second, Prosser attempted to present a negligence formula that was both flexible and predictable. Prosser succeeded in presenting a more flexible negligence formula incorporating public policy factors, but failed in enhancing predictability, with far-reaching consequences for tort law as a compensatory mechanism.
Monday, January 11, 2021
Friday, January 8, 2021
Cristina Tilley has posted to SSRN Private Law, Public Law, and the Production of American Virtue. The abstract provides:
This Essay, contributed to a festschrift celebrating the scholarship of Marshall Shapo, suggests that the time has come to revitalize private law – tort law, in particular – as an engine of national virtue. The groundswell of activism in the summer of 2020 lends itself to particularizing this argument to the virtue of racial justice, but it is equally applicable to gender justice, economic justice, and innumerable other areas where social fracture burdens human flourishing. The piece summarizes the intellectual history that has led legal academics to treat public law as the only legal intervention applicable to social ills like racism. It then pivots to survey how disciplines outside law understand the component parts of racism and the most effective responses to them. Sociologists have observed that systemic drivers of racism which play out in public are made possible in large part by individual drivers of racism which play out in private; these include, “most insidiously” white denial and apathy about racial inequality. Political scientists have suggested that a powerful mechanism to address this private racism is the centering of Black people as narrators of their life experiences and the positioning of white people as attentive listeners to those stories. The piece goes on to suggest that tort litigation has a unique ability to facilitate this process, and thus may produce distinct shifts in private attitude that complement the systemic reforms at the heart of public law. Finally, in an act of legal archaeology, the piece shows these processes at work in the iconic battery case of Fisher v. Carrousel Motor Hotel, Inc. In conclusion, it suggests that Marshall Shapo’s entire body of work can be understood as a commitment to tort’s virtue-production capacity.
Thursday, January 7, 2021
Marc DeGirolami has posted to SSRN Reconstructing Malice in the Law of Punitive Damages. The abstract provides:
Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.
This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.
Tuesday, January 5, 2021
Relatively few suits alleging physical or economic harm due to COVID-19 were filed in 2020:
Lex Machina released its first Torts Litigation Report in November, identifying 173 tort cases related to COVID-19. Most were filed against cruise lines and nursing homes, and as Law.com reports, judges have dismissed many of them.
The largest group of COVID-19 suits were filed by businesses against their insurers. ABA Journal has the story.
Monday, January 4, 2021
Last Thursday, in a case about excessive force by law enforcement officers, the Iowa Supreme Court ruled that there is no vested right to punitive damages and the state legislature may bar them completely, as it did in the Iowa Tort Claims Act. Alina Rizvi has details at Jurist.