Monday, November 29, 2021
Tim Kaye has posted to SSRN The Identity Criterion: Resuscitating a Cardozian, Relational Approach to Duty of Care in Negligence. The abstract provides:
Everyone agrees that the canonical case in American negligence law is Palsgraf v. Long Island Railroad Co. In his famous majority opinion in the New York Court of Appeals, Chief Judge Benjamin Cardozo held that the outcome of the case turned on whether the plaintiff, Mrs. Palsgraf, had been owed a duty of care by the Long Island Railroad. He declared that the answer to this question depended on whether the parties had a relevant relationship at the time of the conduct under consideration. “Negligence, like risk,” he said, is “a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all.”
Over ninety years have passed since then. One thing that everyone agrees upon (including Judge Charles Andrews, who wrote the almost equally famous dissent in Palsgraf) is that not everyone who sustains an injury as the result of someone else’s negligence is entitled to compensation in a court of law. In Andrews’s words, “because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point.” Yet torts lawyers continue to search in vain for a full articulation of a relational approach to duty of care that tells us where that point is. This paper seeks to fill that void.
Friday, November 26, 2021
Wednesday, November 24, 2021
Tuesday, November 23, 2021
Donal Nolan has posted to SSRN Injunctions. The abstract provides:
This chapter is concerned with the availability of injunctions in nuisance cases following Coventry v Lawrence. In that case, the Supreme Court introduced a more flexible approach to the exercise of the discretion to refuse an injunction and significantly degraded the authority of the Court of Appeal decision in Shelfer v City of London Electric Lighting Co. I consider the previous case law and academic writing on the topic, as well as arguments for and against a radical reappraisal of the role of the injunction remedy. I also consider whether the more general shift away from the Shelfer criteria towards a broader discretion is to be welcomed, and which factors should be taken into account when that discretion is exercised. I conclude that while there are good reasons why injunctions should continue to be the default remedy in cases of continuing wrongs, the remedial flexibility signaled in Coventry is to be welcomed. I also argue that, in determining whether to issue an injunction, the courts should take into account at least three factors in addition to more well-established considerations: (1) the possibility that injunctive relief will incentivise the defendant to seek out alternative beneficial ameliorative measures; (2) whether the claimant’s motivation in litigating is primarily financial; and (3) the ease of assessing damages in lieu of an injunction on the facts.
Monday, November 22, 2021
Nicholas McBride has posted to SSRN Between Chaos and Cosmos: Tony Weir in the Cambridge Law Journal. The abstract provides:
This article was written for a special issue of the Cambridge Law Journal to celebrate its centenary. The article surveys Tony Weir's case notes and book reviews for the Cambridge Law Journal between 1963 and 2002 in order to illuminate Tony's unique genius as a legal academic and thinker.
Friday, November 19, 2021
Nili Karako-Eyil has posted to SSRN Increasing Vaccination Rates Through Tort Law: Theoretical and Empirical Insights. The abstract provides:
Tort litigation has been used as a method for advancing public health for the last several decades. Tobacco litigation, toxic tort cases, HIV infection cases and obesity claims are examples of this type of litigation . Advocates for using tort litigation in the context of public health often note the deterrent effect of tort law as a justification for their approach.
In recent years, voices supporting the use of tort litigation as a tool for promoting public health have also been heard in the context of vaccination. Concerned by outbreaks of diseases that had been completely or nearly eliminated in past decades, such as pertussis and measles, public health advocates argue that parents should be held liable in tort for failing to vaccinate their children. Similar to their antecedents, these advocates present deterrence and its resulting benefits to public health as prominent justifications for the use of tort law in the context of vaccination.
The paper seeks to examine whether imposing tort liability on non-vaccinating parents is expected to have a deterrent effect on parents when making vaccination decisions. In general, this paper addresses the question of whether tort law may be used as a method to increase vaccination rates and thus promote public health.
For this purpose, insights from traditional economic theories of tort law and behavioral economics, alongside relevant empirical findings, will be used.
The paper concludes that while other tort theories may justify imposing tort liability on non-vaccinating parents, i.e., corrective justice, the rationale of deterrence provides a poor justification for using tort litigation in the context of vaccination. Therefore, the claim that adopting a liability model is expected to promote public health by increasing vaccination rates should be made with caution.
Monday, November 15, 2021
Larissa Katz & Matthew Shapiro have posted to SSRN The Role of Plaintiffs in Private Law Institutions. The abstract provides:
This chapter, a contribution to a volume on John Gardner’s work in private law theory, considers a question Gardner posed most explicitly in his later writings: why do victims of private wrongs, rather than third parties such as government officials, have the power to sue those who wronged them? Perhaps surprising for an avowed corrective justice theorist, Gardner denied that victims have any moral entitlement to the power to sue, arguing instead that granting them that power serves various institutional objectives, such as the dispersion of political power. We critically examine Gardner’s arguments for this claim, distinguishing several possible readings of his account of the power to sue. While we agree with Gardner that the power to sue is rightly conceptualized in institutional terms, we also contend that his account has some serious shortcomings, particularly in how it alienates victims from the moral underpinnings of the powers they exercise and the institutions in which they participate as plaintiffs. A more compelling account of the power to sue, we suggest, recognizes that victims of private wrongs have a moral stake in how those wrongs are rectified, even as it allows that such personal considerations must sometimes yield to more pressing institutional imperatives.
Thursday, November 11, 2021
The Oklahoma Supreme Court, 5-1, overturned a $465M verdict against Johnson & Johnson for creating a public nuisance because it concerned the sale of a lawful product. Among others, the court cited Don Gifford and Victor Schwartz & Phil Goldberg. Debra Cassens Weiss at the ABA Journal has the story.
Monday, November 8, 2021
Mark Geistfeld has posted to SSRN his contribution to the upcoming symposium on "The State of Tort Theory" in the Journal of Tort Law. Entitled Strict Products Liability 2.0: The Triumph of Judicial Reasoning over Mainstream Tort Theory, the abstract provides:
Strict products liability has evolved in a manner that is widely misunderstood. The liability rule was first formulated to govern defective products that did not minimally perform one of their ordinary functions as expected by consumers—a malfunction that violates the implied warranty of quality. After adopting this rule, courts began applying it to products that did not malfunction and found that a test for defect based on consumer expectations often is indeterminate or can otherwise unduly limit liability in an important class of cases. To address these problems, most courts adopted the risk-utility test, a form of cost-benefit analysis that functions like the negligence standard of reasonable care. Relying on these cases, the Restatement (Third) of Torts: Products Liability embraced the risk-utility test, jettisoned the consumer expectations test, and characterized strict products liability as a misleading label that perpetuates confusion about liability being strict when it instead is based on negligence. In response, a clear majority of courts have rejected this negligence-based framework and affirmed the continued vitality of strict products liability. Puzzled by this unexpected development, mainstream scholars claim that courts are confused by the rhetoric of strict products liability.
The prevailing scholarly opinion about this matter is confused; its fixation on negligence ignores the implied warranty rationale for strict products liability. Having been largely formulated as a rule of contract law, the implied warranty is under-theorized as a tort doctrine. Once adequately developed, the tort version of the implied warranty shows why courts have transformed the rule of strict products liability from the last century into a more comprehensive regime—“strict products liability 2.0”—that relies on consumer expectations to incorporate the risk-utility test into the framework of strict products liability. As compared to ordinary negligence liability, the implied warranty defines the safety problem in the normatively appropriate manner, thereby sharpening the inquiry about what’s at stake.
In dismissing this important development, mainstream tort theory relies on legal categories that fundamentally differ from the ones courts have used to develop strict products liability with analogical reasoning. Scholars have either resorted to overly general theories of tort liability or have otherwise focused on narrow doctrinal questions. By not engaging in the mid-level categorical theorizing required by analogical reasoning, the mainstream position could not see how this characteristic form of judicial reasoning has created the substantively sound regime of strict products liability 2.0.
Friday, November 5, 2021
Thursday, November 4, 2021
Tuesday, November 2, 2021
The Law & Economics Center has an upcoming Workshop for Law Professors on Energy & Environment, to be held in Squaw Valley, CA on January 5-9, 2022. Details are available here: Download Workshop on Energy and Environment Announcement
Monday, November 1, 2021
Rebecca Stone has posted to SSRN Private Liability without Wrongdoing. The abstract provides:
Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs don’t seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person may, for example, be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs don’t generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability.
Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce won’t be normatively consequential if the plaintiff’s moral permission to enforce her rights arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and what a plaintiff is permitted to do to enforce her rights. By reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.