TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, July 29, 2021

Martha Chamallas is the 2022 William Prosser Award Honoree

Chamallas_martha.jpg

I am delighted to announce that the 2022 Prosser Award honoree is Martha Chamallas.  Professor Chamallas, the Robert J. Lynn Chair in Law at The Ohio State University, assumed emeritus status this year; she was honored with the 2021 Distinguished University Professor Award.  One of her Prosser Award nominators stated that she has been "a major influence in encouraging a greater consideration of the ways in which tort law impacts minorities and women."  From her Ohio State biography:

Professor Martha Chamallas is a leading scholar in a number of fields, including torts, employment discrimination law, and legal issues affecting women. She is the author of two books and more than 40 articles and essays in law journals such as the Michigan Law Review, the University of Pennsylvania Law Review, the University of Chicago Law ReviewUCLA Law Review and the Southern California Law Review. She is a member of the American Law Institute, Torts Consultative Group and has participated on Gender and Race Bias Task Forces for the states of Iowa and Pennsylvania.

Following graduation from law school, Professor Chamallas clerked for the Honorable Charles Clark of the U.S. Court of Appeals for the Fifth Circuit and served as an attorney for the U.S. Department of Labor, Office of the Solicitor, Civil Rights Division.

Prior to joining the Moritz College of Law in 2002, Professor Chamallas served on the faculties of the University of Pittsburgh School of Law, the Louisiana State University Law Center, and the University of Iowa College of Law. She has held visiting positions at Harvard Law School, the Washington University School of Law, Richmond School of Law, the University of Ghent, and Suffolk University School of Law. She also served as the chair of the Women’s Studies Program at the University of Iowa.

At the Moritz College of Law, she teaches Torts, Employment Discrimination, and Gender and the Law. Professor Chamallas was the recipient of the Distinguished Lecturer Award in 2006 and the University Distinguished Scholar Award in 2013.

July 29, 2021 in TortsProfs | Permalink | Comments (0)

Tuesday, July 27, 2021

Billauer on Liability for Brain-to-Computer Interface

Barbara Pfeffer Billauer has posted to SSRN The Bionic Plaintiff and the Cyborg Defendant:  Liability in the Age of Brain-to-Computer Interface.  The abstract provides:

Human-enhancing devices via machine interface are rapidly approaching mass marketability. These devices include, for example, exoskeletons that allow functionality for those neurologically impaired are powered hydraulically, mechanically, or electrically. Newer devices, recently approved by the FDA, power such devices via brain waves transmuted into electrical signals. This Brain to Computer Interface (BCI) technology has been utilized in advanced designs, such as controlling a stylus or robotic arms, and more mundane contraptions, such as wheelchairs, via brain waves signaling intention. All are governed under Class II FDA designation for devices posing low and moderate risks.

Of concern are studies that have recorded the existence of a readiness potential that precedes brainwaves involved in conscious movement, recordable shortly before intent to move -- or even awareness of such intent -- is acknowledged by the user. This raises the question regarding whether BCI technology can mobilize devices based on unconscious or subconscious thoughts – creating the possibility of “unintended” harm, calling into question the legal definition of “intent” needed to prove assault and battery. The BCI devices also render it nearly impossible to divine relative contribution of fault in the event of an accident: was it due to the intent (conscious or not) of the user- or product malfunction, the subject, perhaps, of a product liability suit against the manufacturer? It appears the technology is poised to throw the tort system into disarray.

Here I postulate that FDA Class III regulation is warranted for BCI devices. This would assure greater oversight and protection – not just for the user- but for bystanders and the public at large for devices allowing remote movements engineered by pure thought. I further suggest that enhanced testing is warranted – and that failure to pursue such testing might render the manufacturer liable in tort breaching pre-emption bars, thereby furnishing double protection: deterrence via lawsuit, plus FDA oversight. This double protection, I suggest, is warranted in such potentially dangerous situations. Finally, I highlight the difficulties in assessing fault and recklessness in law when actions are committed without full awareness.

July 27, 2021 in Scholarship | Permalink | Comments (0)

Monday, July 26, 2021

Russell on Comparative Auto Accidents

Thomas Russell has posted to SSRN Car Crashes, Personal Injury Litigation, and Frivolous Defenses in Alberta and Colorado.  The abstract provides:

This Article is a comparative empirical study of car crash litigation in Alberta, Canada and Colorado, USA.

The first part of the Article compares the rates of car crash injuries and litigation between Alberta and Colorado. The Article assembles data for what sociolegal scholars typically call the dispute pyramid, but I argued that a salmon run is a better metaphor for the winnowing of injuries through lumping, claiming, settling, and litigating.

The Article shows that Albertans have a safer driving culture than do Coloradans. Surprisingly, the data also show that Albertans file car crash lawsuits much more frequently than Coloradans, notwithstanding the American reputation for litigiousness. I suggest that something within the settlement of property damage only cases likely accounts for the difference.

The second part of the article presents a summary of empirical data and argument concerning the pleading of frivolous defenses by American insurance defense lawyers. I compare the pleading of these defenses to the Alberta Rules of Court.

I am especially interested in hearing from Alberta and Canadian lawyers regarding differences between the Canadian tort system and that of the United States.

July 26, 2021 in Scholarship | Permalink | Comments (0)

Friday, July 23, 2021

Allen on the Emotional Woman Standard

Alena Allen has posted to SSRN The Emotional Woman.  The abstract provides:

The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.

July 23, 2021 in Scholarship | Permalink | Comments (0)

Thursday, July 22, 2021

Rave and McGovern on a Hub-and-Spoke Model of Multidistrict Litigation

Theodore Rave has posted his article with the late Francis McGovern, A Hub-and-Spoke Model of Multidistrict Litigation, on SSRN.  The abstract provides:

Consolidating mass tort cases in federal multidistrict litigation (MDL) has been a successful strategy for efficiently managing, facilitating the maturation of, and resolving nationwide disputes. This has been particularly true for cases involving single-event mass disasters or defective products sold by a single defendant, even when thousands of plaintiffs are involved. But in "mega mass torts"--those involving multiple defendants and multiple products and activities over an extended period of time (e.g., asbestos, silicone gel breast implants, opioids)--comprehensive resolution in an MDL has proven elusive. In these mega mass torts, the MDL judge can become a bottleneck, as there are only so many motions, discovery disputes, and bellwether trials a single judge can decide. But while these types of mega mass torts may be too varied for a single simultaneous trial or global settlement, eschewing aggregation would result in massive losses of efficiency and consistency.

Here we propose a "hub-and-spoke" model of MDL case management for these sorts of mega mass torts that takes full advantage of the nationwide scope of the federal judiciary to relieve pressure at the bottleneck. The idea is to initially consolidate all related cases in a single MDL (the hub) for common discovery and pretrial management. In the course of managing the hub MDL, the hub MDL judge will identify sensible groupings of parties and claims to recommend to the Judicial Panel on Multidistrict Litigation for strategic disaggregation as test cases. Those test cases will then be remanded to other federal judges (the spokes) to allow the litigation to move forward through further pretrial development, bellwether trials, and potential piecemeal settlements. The spoke cases can proceed in parallel with the cases still in the hub MDL to speed the process of maturation, much in the same way that a computer can handle complex tasks faster through parallel processing than through serial processing. The hub MDL judge may also retain jurisdiction over a common issue or party to provide a ready forum for a potential global resolution should the information generated in the spokes make one possible.

In this article, we discuss the problem of bottlenecks in mega mass tort litigation. We then describe the hub-and-spoke model, the advantages it offers over other approaches to mega mass tort litigation, and the ways in which it can increase the chances of finality in mega mass tort cases through a variety of settlement structures. Finally, we analyze an example of the hub-and-spoke model in action in the ongoing National Prescription Opiates MDL.

July 22, 2021 in Scholarship | Permalink | Comments (0)

Monday, July 19, 2021

NJ Tarasoff Case: Coleman v. Martinez

The New Jersey Supreme Court upheld the Appellate Division's overturn of a grant of summary judgment; the majority held that a licensed social worker owed a common law duty to the victim of a schizophrenic patient:

In sum, Martinez treated a patient convicted of two violent assaults at a
dire time in her life and proceeded to watch her decompensate. Further, once
that decompensation became a barrier to T.E.’s reunification with her children,
Martinez identified Coleman as an antagonist and personification of that
barrier. “It does not seem highly extraordinary” that those actions would result
in a violent assault against Coleman.

The opinion is here:  Download Coleman.martinez.nj.2021  (Thanks to George Conk for the tip.)

July 19, 2021 in Current Affairs | Permalink | Comments (0)

Friday, July 16, 2021

Feminist Torts Judgments: Pruitt's Commentary on Boyles v. Kerr

Lisa Pruitt has posted to SSRN Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments:  Rewritten Torts Opinions.  The abstract provides:

This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.

July 16, 2021 in Books, Scholarship | Permalink | Comments (0)

Wednesday, July 14, 2021

Hofstra Seeks Torts Professor

The Maurice A. Deane School of Law at Hofstra University seeks to fill one or more tenure-track positions.  We will consider all subject areas but primarily seek candidates with research and teaching interests in Torts, Property, and other first year courses such as Contracts, Criminal Law, and Civil Procedure. The Law School is particularly interested in faculty members who also have research and teaching interests in Environmental Law, Bankruptcy and/or Commercial Law. All candidates must have a strong commitment to serious scholarship. We are particularly interested in candidates who will enhance the diversity of our faculty.

As a leading national and regional educational institution, Hofstra Law is a distinguished center of legal scholarship in the service of justice and is committed to serving its local communities (which include Americans from a wide range of ethnic backgrounds and range from extraordinary affluence to entrenched suburban poverty), participating in the national scholarly dialogue, and educating attorneys for the local bar as well as the broader national  community. Hofstra Law recently completed a successful multiyear capital campaign and the University has recently opened new schools of medicine, public health and engineering. 

Candidates should send a cover letter and resume, including a description of areas of interest, and copies of representative works to Professor Linda Galler, Chair of the Faculty Appointments Committee, LawSchoolFacultyJobs@hofstra.edu.

Hofstra University is an equal opportunity employer, committed to fostering diversity in its faculty, administrative staff and student body, and encourages applications from the entire spectrum of a diverse community.

July 14, 2021 in TortsProfs | Permalink | Comments (0)

Tuesday, July 13, 2021

U.S. Air Force Held Primarily Responsible for 2017 Church Shooting

In 2017, a former serviceman killed 26 people and injured over 20 more when he opened fire in a Baptist church in Sutherland Springs, Texas.  A federal judge has ruled the U.S. Air Force was 60% responsible based on its failure to submit the shooter's criminal history to the FBI database, allowing him to purchase the weapon he used in the attack.

"The argument in this case was that the government had in its possession, particularly the Air Force, had in its possession information about a conviction for an offense of a service member which they failed to report — carelessly — to federal government authorities so it could be included in the National Crime Information Center database that then could be accessible for background checks at retail," [Timothy] Lytton said. "And that carelessness on the government’s part made them liable for the resulting harms, which were of course the mass shooting.”

Unlike other "high-profile" mass shootings, the Sutherland Springs lawsuit didn't involve a venue that was negligent or a gun store that sold a firearm illegally.

"We don’t have a lot of mass shootings where the problem is that a person who’s currently enlisted in the armed services had a conviction that wasn’t properly reported by the service to the federal government, that’s a sort of unusual fact pattern so I can’t really identify a trend of liability against the federal government in mass shootings," he said.

Texas Public Radio has the story.

July 13, 2021 in Current Affairs | Permalink | Comments (0)

Monday, July 12, 2021

Lytton on Illegal Firearms as Public Nuisance

Tim Lytton has an article at The Conversation regarding New York's new law defining illegal firearms as a public nuisance.  He anticipates a Second Amendment challenge to the law, but even if it survives:

The main impact of these lawsuits is to put pressure on gun manufactures to do more to prevent inventory theft and illegal sales by retailers. Since 2000, the gun industry has operated a program to prevent illegal straw purchases, suggesting manufactures think they may be able to affect how retailers operate. Even still, little is known about whether this program has had any impact on gun violence rates. That’s why no one really knows if forcing gun manufacturers to more closely supervise retailers will work.

Part of the problem is a lack of government funding since the mid-1990s for public health research on alleged links between industry sales practices and gun crimes. Recent funding for this kind of research may clarify the value of regulating illegal gun sales as a public nuisance.

Until then, passing laws to prompt litigation against the gun industry is just a shot in the dark.

July 12, 2021 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)