Tuesday, March 30, 2021
On Monday, Florida became the most populous state to enact COVID-19 immunity. The law is similar to those passed in other states. Among other entities, it covers corporations, hospitals, nursing homes, government entities, schools and churches. There is an exception for gross negligence or intentional conduct. Law 360 has the story.
Monday, March 29, 2021
Last week, the New York City Council enacted legislation eliminating qualified immunity as a defense for city police officers when sued under the new local statute. Qualified immunity remains a defense if an officer is sued under federal or state statutes. CBS News has the story.
Tuesday, March 23, 2021
We are writing as the Secretary and Treasurer of the
AALS Torts & Compensation Systems section to pass along two important
*1. Torts and Compensation Systems Section Newsletter*
As most of you know, our section publishes a newsletter each fall listing:
(1) symposia related to tort law; (2) recent law review articles on tort
law; (3) selected articles from Commonwealth countries on tort law; and (4)
books relating to tort law. If you know of any works that should be
included in this year's newsletter, please forward relevant citations and
other information to email@example.com. The deadline for
inclusion in this fall's newsletter is Friday, August 20, 2021.
*2. 2022 William L. Prosser Award*
This is the first call for nominations for the 2022 William L. Prosser
Award. The award recognizes “outstanding contributions of law teachers in
scholarship, teaching and service” in torts and compensation systems.
Recent recipients include Jack Weinstein, Anita Bernstein, Ken Simons,
Marshall Shapo, Steve Sugarman, Aaron Twerski, Mike Green, James Henderson,
Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray,
and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex
Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the
award. Nominators can renew past nominations by resubmitting materials.
Living tort scholars and those who have passed away within the last five
years are eligible for the award. Selection of the recipient will be made
by members of the Executive Committee of the Torts & Compensation Systems
section, based on the recommendation of a special selection committee. The
award will be presented at the annual AALS meeting in Washington, D.C. in
Nominations must be accompanied by a brief supporting statement and should
be submitted no later than Friday, July 16, 2021. Please email submissions
to Elizabeth Weeks, firstname.lastname@example.org.
Nora Freeman Engstrom & Elizabeth Weeks
Monday, March 22, 2021
In 2011, the Pennsylvania General Assembly altered the common law rule of joint and several liability with the Fair Share Act. That Act restricted joint and several liability to intentional torts or misrepresentations, the release or threatened release of certain hazardous substances, serving alcohol to a visibly intoxicated patron, and, most importantly, to defendants who were found to be 60% or more responsible for the tortious injuries of the plaintiff. Last week, the Superior Court ruled that the Fair Share Act does not apply in cases in which the plaintiff is not found to be contributorily negligent for her own injuries. In other words, for wholly innocent plaintiffs, joint and several liability remains in place. (The opinion is here: Download KEITH SPENCER Appellant v CLEVELAND JOHNSON TINA GAINER JOHNSON AND PHILADELPHIA) This argument was put forth by Widener alums Scott Cooper & Lara Antonuk is their contribution to Widener's Mass Tort Litigation symposium in 2013. (The article, check particularly footnote 143, is here: Download Cooper-antonuk---ready-for-pub.-6.18.14)
Friday, March 19, 2021
John Goldberg & Ben Zipursky have posted to SSRN Opioid Litigation and the Law of Public Nuisance: A Preliminary Assessment. The abstract provides:
In recent years, states and cities have filed civil actions against manufacturers and distributors of prescription opioid medications seeking, among other things, reimbursement for the cost of treating individuals who suffer from addiction, overdoses, and related illnesses. In many respects, these suits have followed the pattern set by suits against tobacco companies, as well as gun and paint manufacturers. This Article focuses on one of the most striking similarities: the plaintiffs’ aggressive invocation of the law of public nuisance as a basis for liability. The question we explore is whether the plaintiff-entities can rely on public nuisance as a ground for prevailing and recovering damages. We conclude, preliminarily, that these suits should fail because they do not fall within the concept of public nuisance as courts have deployed it, and because the admittedly grave problems they aim to address are of a very different kind than those which the law of public nuisance is well-suited to address. In arguing for these conclusions, we do not deny—as some scholars have—that public nuisance is a tort. Rather, we maintain, primarily, that the entities have not alleged the kind of interference with a right common to the public that is required for the commission of this tort. Of course, even if we are correct to conclude that the plaintiffs’ public nuisance claims fail, the opioid defendants might well face liability on other claims brought by these claimants, or on behalf of individuals who have suffered physical injury as a result of becoming addicted to opiate-based medications have tort claims against the manufacturers, prescribers, or retailers of those drugs. While our analysis of public nuisance tort liability might strike some as “formalistic” in a pejorative sense, we maintain that in-depth doctrinal analysis should not be mistaken for out-of-touch conceptualism. Part of what makes the common law valuable and adaptive is that it has some content and structure. If it did not, it would not qualify as law at all. Our contention is that, notwithstanding the breadth of the public nuisance tort, it is not capacious enough to absorb claims by cities and states seeking compensation for the concededly urgent harms associated with the opioid crisis. To burst the seams of the legal framework while pretending one has remained within it is to lose the institutional stability that renders tort law a form of law and that helps to sustain the authority of judge-fashioned bodies of law. Perhaps some courts will decide this is worth doing. Our point is that, in so far as they do, they probably are exceeding the bounds of ordinary common law reasoning, even on a capacious understanding of it.
Tuesday, March 16, 2021
Yesterday, the New Mexico Supreme Court unanimously ruled that the state's $600,000 noneconomic damages cap in med mal cases does not violate the constitutional right to a jury trial. The Los Alamos Daily Post has the story.
Monday, March 15, 2021
Sarah Swan has posted to SSRN Tort Law and Feminism. The abstract provides:
Tort law has not been a sympathetic audience for feminist legal scholars. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it towards pursuing goals of social justice or equality. Nevertheless, some feminist redirection has been achieved, mostly through statutory intervention, thus laying the groundwork for further development. This chapter imagines what tort law might look like if it more fully embraced feminist reforms. Focusing on four foundational concepts in tort law – duty, third-party liability, harm, and damages – this chapter uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. Noting the places where feminist paths have already been forged, this chapter explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates existing social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.
The piece is forthcoming in Oxford Handbook on Feminism and the Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna Williams, eds) (2021).
Friday, March 12, 2021
At JOTWELL, Nora Engstrom reviews the piece An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices by John Campbell et al.
Thursday, March 11, 2021
Virginia has a cap on total (not non-economic) damages in med mal cases of $2.45M. A bill to eliminate that cap didn't make it out of the Senate Judiciary Committee before the legislative session ended last month. Law360 has details.
Tuesday, March 9, 2021
Geoffrey Rapp has posted to SSRN LGBTQ+ Rights, Anti-Homophobia and Tort Law Five Years After Obergefell. The abstract provides:
Tort law’s intersection with the rights of members of minority and historically oppressed groups is complicated, and its status as an instrument for the advancement of rights tenuous. Tort law embraces a “reasonable person” analysis, with tort liability is circumscribed by the attitudes, impressions, beliefs, knowledge, and understanding of the fictional average member of “the community,” and reaches for majoritarian sensibilities to regulate human interaction. Tort law is also shaped by the common law process, and can be slow to evolve to changes in social structures, patterns of human relations, and the needs of members of growing minority groups that have not achieved dominant status. On the other hand, because of the evolving content of reasonableness and the common law process, tort law is equipped to change as society changes.This paper considers how tort law responded to a distinctive and powerful exogenous shock – the Supreme Court’s landmark 2015 decision prohibiting the restriction of same sex marriage, Obergefell v. Hodges.
Friday, March 5, 2021
Ken Abraham & Daniel Schwarcz have posted to SSRN Courting Disaster: The Underappreciated Risk of a Cyber-Insurance Catastrophe. The abstract provides:
Cyberattacks have the potential to cause simultaneous, very large losses to numerous firms across the globe, thus resulting in a cyber “catastrophe.” Moreover, there are plausible reasons for believing that a future cyberattack could produce world-wide losses that are larger by an order of magnitude than any past attack. This Article argues that such a cyber-catastrophe could cripple the insurance industry, for two primary reasons. First, many traditional property/casualty policies might well provide “silent-cyber” coverage of a much larger portion of these costs than is now anticipated, because a cyber catastrophe could well result in “physical damage or loss” to tangible property resulting from cyberattacks. This is especially true for auto and homeowners coverage, which generally do not expressly exclude cyber-risk due to the historic absence of cyber claims in these domains. But even general commercial property and CGL policies might cover significant elements of this loss, depending on their terms. Second, a cyber catastrophe could cripple the growing number of insurers providing "cyber insurance" coverage, which expressly cover various losses associated with cyberattacks and the compromise of electronic data. These cyber-insurers face unique difficulties in using two of the most important insurance tools for limiting their exposure to catastrophe risk: coverage exclusions and underwriting. Although cyber-insurers have historically offset these difficulties by insisting on artificially low coverage limits, competition is increasingly rendering this strategy unworkable. In short, both traditional forms of insurance and new forms of cyber insurance are courting disaster. The Article therefore closes by identifying and analyzing several alternative approaches to protecting traditional insurance from catastrophic cyber loss and encouraging new forms of cyber insurance that provide increased coverage without exposing insurers to excessive financial risk.
Wednesday, March 3, 2021
Tuesday, March 2, 2021
Bob Rabin has posted to SSRN Some Thoughts on Compensation and Remedial Relief for Disasters in the American Legal System. The abstract provides:
We live in a time when disasters, tragically, have taken on new meaning. Natural disasters arise with greater frequency and growing intensity. And responsible party disasters—disasters that are man-made—dominate the headlines, generating fear and a sense of disbelief. Both preventive measures beforehand, and restorative efforts on behalf of victims thereafter, raise enormously difficult questions of how to best address these momentous events.
This essay focuses on the restorative efforts: compensation and remedial relief for disasters in the United States legal system. The essay sets out to briefly describe the multi-layered system in the U.S. for addressing the consequences of catastrophic loss, which is framed in a typology based on a straightforward, two-fold approach.
Part I discusses compensation for natural disasters, where a combination of legislative no-fault compensation systems, privately held insurance, and governmental assistance programs compensate property loss, which is the dominant, although by no means exclusive, source of harm. Part II turns to responsible party disasters—where tort serves as the default system for seeking redress for physical harms. In addition to tort, Part III considers other options for securing compensation, such as targeted informal settlement schemes. Finally, the essay concludes with a brief note on the shortcomings of each of these strategies and suggest the need for a hybrid approach that draws upon each of the positive elements in our patchwork system.
Monday, March 1, 2021
From Mike Duff: “I just wanted to alert everyone that the University of Wyoming College of Law is interested in exploring the possibility of a visitor for Fall 2021, to teach its first year torts course along with one other course. If you are interested in exploring this possibility (and Laramie in the fall is quite nice), please contact either Michael Duff (Michael.Duff@uwyo.edu) or Sam Kalen (email@example.com).”