Wednesday, September 29, 2021
In 2015, fumes from a failing natural gas storage well were released into the mountains above the San Fernando Valley, sickening people with nausea, headaches, and nosebleeds. On Monday, SoCal Gas announced agreements to pay up to $1.8B to settle litigation over the leak. The first agreement requires around 97% participation from approximately 36,000 plaintiffs and court approval of how the money will be distributed. Second and third agreements involve separate settlements and dismissing named plaintiffs in a business class action, both of which are subject to court approval. Plaintiffs' attorneys spoke from the steps of the Los Angeles federal courthouse:
“There was no plan when the well blew up on what to do,” said attorney Brian Panish. “Because of those failures, these people suffered. We’re thankful we can do our best to offer fair and just compensation.”
Panish said that affected residents gave depositions by Zoom during the pandemic and that some still living in the area believe that the storage field, which is active, should be shut down.
But he said that the settlement shows that the gas company has taken some responsibility.
“It sends a loud message about what had happened — people were justified in their complaints,” he said.
Gregory Yee, Tony Barboza, and Leila Miller of the LA Times have the story (behind a paywall).
Monday, September 27, 2021
At JOTWELL, Cristina Tilley reviews Tasnim Motala's Words Still Wound: IIED & Evolving Attitudes toward Racist Speech.
Last Wednesday, legislation was introduced in Congress to update the Limitation of Liability Act of 1851, pursuant to which boat owners can limit their liability to the value of the remains of the vessel. The proposed legislation, introduced by Rep. Salud Carbajal and Sen. Dianne Feinstein, would mean that owners of small boats could be held legally responsible for maritime accidents regardless of the value of the boat after the incident. The changes would be applied retroactively to compensate the victims of a 2019 incident off the coast of Ventura County, California. In that case, 34 people were burned to death in the bunkroom of the Conception, a scuba-diving boat. The AP's Stefanie Dazio in the Los Angeles Times has the story.
Wednesday, September 22, 2021
The University of Florida Levin College of Law is currently seeking applications for a visiting faculty position for the Spring 2022 semester to teach either Torts (4 credits) in the first-year required curriculum or Remedies (3 credits) in the upper-level curriculum, as well as a second course in an elective subject of the visitor’s interest. The University of Florida, located in Gainesville, FL, is currently the fifth-best public research institution in the nation and the flagship university of the third-largest state.
Application materials should include a cover letter, a resume with at least three references, and recent course evaluations, if available. Materials may be uploaded at http://jobs.ufl.edu.
For further information, applicants may contact Associate Dean Amy Stein at firstname.lastname@example.org. Review of applications will begin immediately. The Levin College of Law fosters a diverse and inclusive environment for faculty, staff, and students, and we welcome applications from candidates with diverse backgrounds and perspectives.
The University of Florida is committed to non-discrimination with respect to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, marital status, political opinions or affiliations, genetic information, disability, and veteran status in all aspects of employment.
Tuesday, September 21, 2021
Theodore Rave has posted to SSRN Tort Claims as Property Rights. The abstract provides:
Courts have long said that legal claims are a constitutionally protected form of property. But what does that mean? This essay explores the treatment of legal claims as property rights in the context of mass torts in doctrinal, theoretical, and economic terms. Corrective justice and civil recourse conceptions of tort law dictate that tort claims are owned by individual plaintiffs. Allocating these property rights at the individual scale can make it difficult to use public mechanisms, like class actions, to aggregate mass tort plaintiffs’ claims to achieve tort law’s instrumental goals like deterrence horizontal equity. At the same time property rights in tort claims facilitate aggregation and mass settlement through private ordering that often sweeps away individualized distinctions among plaintiffs. While the private aggregate settlements that emerge may sometimes further tort law’s instrumental goals, they do so fortuitously, as a byproduct of intermediaries seeking private gain from bundling claims together for sale to the defendant en masse, and without the transparency or oversight of public alternatives.
Friday, September 17, 2021
Thursday, September 16, 2021
Avihay Dorfman has posted to SSRN The Work of Tort Law. The abstract provides:
Tort law does many things—it determines substantive rights, decides what counts as violating these rights, recognizes rights of repair, and grants rights of redress. Two conceptions of tort law appear to dominate the ways we should understand and discharge these tasks. One conception takes tort law to be the law of wrongs whereas the other conception equates tort law with the law of victim recourse. I argue that both conceptions (including a combination of both) mischaracterize what tort law does and what it should be doing. By contrast, the conception I shall defend—viz., the conflict theory of tort law—takes the basic task of tort law to be that of identifying the nature of the conflict to which it responds (or shapes). In fact, there are three of them: Inherently valuable, tolerably valuable, and valueless conflicts. Each type of conflict calls for a qualitatively different response by the law of torts. The conflict theory, I argue, changes the way we understand and determine the rights, duties, liabilities, and remedies that arise in and around tort law. I demonstrate this claim in connection with the tort of battery and then extend the analysis to capture the tort law of workplace and, in particular, trespass law as it applies to organizing activities at the physical workplace.
Tuesday, September 14, 2021
Richard Wright has posted to SSRN Identifying and Assigning Liability Among Multiple Legally Responsible Causes. The abstract provides:
This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibility and ultimate liability issues, and briefly discusses the legal responsibility and ultimate liability issues.
Friday, September 10, 2021
Steve Hedley has posted to SSRN Private Law Theory: The State of the Art. The abstract provides:
This essay reviews four recent English-language essay collections, each of which proposes a vision of private law theory – that is, of how private law appears in the light of a wider understanding of the world. It concentrates on how each collection gives some sort of shape to the emerging discipline. Discussion of the shape, meaning and significance of private law is of course nothing new; but the recent massive outpouring of theory, and the issues which have been treated as important, require some discussion of the intellectual climate which has led us to this place. For the most part, this essay argues, the discussion has been governed by the increasing obsolescence of classical private law concepts, which the more progressive writers have taken as a call to develop new concepts, and the more traditional writers have taken as a call to defend what is valuable about them; over time, this has increasingly pushed the traditionalists to a position where they can describe some (though hardly all) of what we all see, but which is largely impotent in justifying it – that is, in explaining why it is worth retaining. Meanwhile, the terms of debate have become increasingly narrow, as continuity is privileged over change, the lawyer’s point of view privileged over that of other community members, and national court-based law is emphasised over the many other forms of social ordering. Yet there are now also welcome signs of a broader approach, by which different perspectives are seen as complementing one another rather than as rivals, and there is (sometimes at least) genuine enquiry into what is really universal and what is merely a local present-day peculiarity. And we might be approaching – to put it no higher– the time when private law theory is a genuine conversation rather than as a mere cacophony of voices.
Tuesday, September 7, 2021
Mark Geistfeld has posted to SSRN Proximate Cause Untangled. The abstract provides:
The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across all elements of the tort claim.
In a negligence case, for example, duty determines the risks that factor into the duty to exercise reasonable care. This property implies that the duty must be limited to the risks of foreseeable harm in order for the standard of reasonable care to govern only those harms. Foreseeability for this purpose is defined by the general zones of danger or reference classes that the reasonable person would consider when estimating the likelihood of accidental harm, reducing foreseeability to a behavioral concept that is adequately determinate for resolving the issue of breach. The element of proximate cause then provides a case-specific requirement that the plaintiff’s injury must be within a general category of foreseeable harms encompassed by both the tort duty and its breach—a necessary predicate for liability. The prima facie case accordingly requires the foreseeability test to establish proximate cause for the breach of a duty that is limited to the risks of foreseeable harm.
Once liability has been established, the damages phase of the case requires a further inquiry to fix the full extent of compensable harm proximately caused by the tortious conduct. The foreseeability test produces inequities in the determination of damages that the directness test fairly resolves. This inquiry is structured by the uniformly adopted rule that permits full recovery for an unforeseeably large harm, such as a crushed skull, that was directly caused by a tortious force that would normally cause minor injury, such as a bump on the head. This rationale also explains why the intentional torts exclusively rely on the directness test, eliminating culpability as a confounding factor in the analysis of proximate cause. Because the directness test is a rule for equitably determining compensatory damages, its tort rationale does not justify the directness test for proximate cause in criminal cases, contrary to a widely adopted assumption. Instead of being competing formulations, the directness and foreseeability tests each address different components of a tort claim, explaining why each one is both widely adopted and yet roundly criticized when employed as the only method for determining proximate cause.
Thursday, September 2, 2021
Peter Kutner has posted to SSRN Property Torts and the Restatements. The abstract provides:
Essay examining connections between tort law and property, and the Restatements' treatment of tort liability for loss of, damage to or interference with property interests.