Wednesday, March 30, 2022
The National Sea Grant Law Center at the University of Mississippi School of Law hosts a podcast entitled "Law on the Half Shell." Their second episode of the season covers COVID-19 and cruise ships and features Center Director Stephanie Otts and me. I discuss COVID-19 tort cases against the cruise ship industry.
Tuesday, March 29, 2022
Ellie Bublick has posted to SSRN her contribution to the Journal of Tort Law's "The State of Tort Theory" symposium, Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured. The abstract provides:
How do courts root themselves in traditional tort principles and policies and also develop tort common law in ways that befit contemporary values? This essay argues that judges should weave classic tort aims of harm prevention and redress with contemporary norms of equality of persons, to provide a fuller accounting to people foreseeably risked and harmed by projects undertaken for financial gain. In essence, common law courts must re-ask the crucial question of who is a neighbor in a shrinking world in which risks and consequences can be traced somewhat farther. The article commends a few recent decisions that compel legal regard for a broader cohort of injured people and promote care for their wellbeing. It also encourages scholars to engage more deeply with the state court decisions that determine tort law’s reach.
Monday, March 28, 2022
Danielle Keats Citron has posted to SSRN How to Fix Section 230. The abstract provides:
Section 230 is finally getting the clear-eyed attention that it deserves. No longer is it naive to suggest that we revisit the law that immunizes online platforms from liability for illegality that they enable. Today, the harm wrought by the current approach is undeniable. Time and practice have made clear that tech companies don't have enough incentive to remove harmful content, especially if it generates likes, clicks, and shares. They earn a fortune in advertising fees from illegality like nonconsensual pornography with little risk to their reputations. Victims can't sue the entities that have enabled and profited from their suffering. The question is how to fix Section 230. The legal shield enjoyed by online platforms needs preconditions. This essay proposes a reasonable steps approach borne out of more than 12 years working with tech companies on content moderation policies and victims of intimate privacy violations. In this essay, I lay out concrete suggestions for a reasonable steps approach, one that has synergies with international efforts.
Thursday, March 24, 2022
Alberto Bernabe has posted to SSRN Teaching at the Intersection of Torts, Race, and Gender. The abstract provides:
Recent social movements concerned with racial relations and bias have inspired changes in law school education. In some schools, the changes involved creating specific courses while in others, professors have been encouraged to incorporate relevant materials into already existing courses. At first glance, Torts might not seem to be a particularly apt course for exploring issues of race and gender. However, a more careful look at the subject matter of the course reveals multiple topics in which race and gender play a critical role in the development and application of the doctrines. In this article I discuss how to integrate materials to explore the intersection of issues of race and gender into a first year Torts course and suggest specific cases and materials to build such a course.
Tuesday, March 22, 2022
Monday, March 21, 2022
Scott Skinner-Thompson has posted to SSRN Anti-Subordination Torts. The abstract provides:
In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.
But thanks to innovative scholars attentive to power disparities in the law and society, an ever-growing body of scholarship analyzes, critiques, and suggests reforms to tort law based on the racial, gender, ableist, socio-economic, and sexuality-based disparities or stereotyping assumptions that exist within the doctrine and its application. Professor Martha Chamallas’s scholarship has been at the vanguard of this important trend and it’s a joy to celebrate her ground-breaking work in this Festschrift, although a tall order to do it justice.
Her intellectual and moral leadership have helped us realize that tort law—no less than constitutional law, civil rights, or criminal law—is a context where power and identities play a critical role in determining whose lives will be valued, whose injuries will be remedied, and what injustices will be rectified. Or not. This work has implications not just for how tort law is interpreted and applied in courts, but also how it is taught in school. In fact, several of Professor Chamallas’s scholarly endeavors focus specifically on bringing these insights to bear on law school curriculum.
As detailed herein, her substantive contributions to tort scholarship and theory are manifold but include at the top of the list (my list, anyway): (1) critiquing the degree to which harms often (but not exclusively) associated with women are unrecognized or devalued in tort law, (2) unearthing the ways in which the injuries of racism have been ignored, and (3) articulating how constitutional equality principles might be used to reform some of the discriminatory practices of tort law.
All told, I suggest that Professor Chamallas has helped engender an anti-subordination approach to tort law. As characterized here, this anti-subordination approach to tort law does not just simply attempt to redress formal inequalities in doctrine or its application, putting people on formally equal footing in the eyes of the law. Rather, this approach moves the law in favor of prioritizing (with special solicitude) the injuries disproportionately inflicted on marginalized communities and, potentially, being mindful of (instead of ignoring) identity differences to create contextually sensitive rules that may level up those that have historically been subjugated or ignored.
Thursday, March 17, 2022
Rachel Leow has published Corporate Attribution in Private Law with Hart Publishing. The blurb provides:
Looking at key questions of how companies are held accountable under private law, this book presents a succinct and accessible framework for analysing and answering corporate attribution problems in private law.
Corporate attribution is the process by which the acts and states of mind of human individuals are treated as those of a company to establish the company's rights, duties, and liabilities. But when and why are acts and states of mind attributed in private law?
Drawing on a wide range of material from across the disparate areas of company law, agency law, and the laws of contract, tort, unjust enrichment, and equitable obligations, this book's central argument is that attribution turns on the allocation and delegation of the company's own powers to act. This approach allows for a much greater and clearer understanding of attribution. A further benefit is that it shows attribution to be much more united and coherent than it is commonly thought to be. Looking at corporate attribution across the broad expanse of the common law, this book will be of interest to lawyers across the common law world, including the United Kingdom, Australia, Canada, and Singapore.
Order online at www.bloomsbury.com – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!
Monday, March 14, 2022
Tony Sebok has posted to SSRN Going Bare in the Law of Assignments: When is an Assignment Champertous?. The abstract provides:
This Article is a response to David Capper’s The Assignment of a Bare Right to Litigate, in which he reviews the evolving approach to champerty in Ireland and the United Kingdom. Capper’s paper makes two claims. First, that maintenance is less offensive to the law of champerty than the assignment of “bare” claims. Second, the law of champerty can, and ought to, distinguish the assignment of bare claims from other types of assignment and that the historical trend of allowing the assignment of choses of action should not be extended to bare assignments.
I offer a perspective on the parallel evolution from the point of view of the United States. In connection with Capper’s first claim, I note that in the United States there is great resistance to the first claim – in many jurisdictions the evils of maintenance are conflated with the purported evils of the assignment of “bare” or “naked” choses in action. In connection with Capper’s second claim, I argue that Capper’s proposal misidentifies the public policy concern that should ground a limitation on the assignment of claims. As I read the English cases, especially Lord Denning’s opinion in Trendtex Trading Corp. v. Credit Suisse, only a concern about abuse of process should warrant the refusal of courts to enforce economically-motivated assignments. The degree to which they are “naked” or “bare” has nothing to do with whether the assignments violate public policy, and analysis based on this concern should be abandoned.
Friday, March 11, 2022
Rebecca Crootof has posted to SSRN War Torts. The abstract provides:
The law of armed conflict has a built-in accountability gap. Under international law, there is no individualized remedy for civilians whose property, bodies, or lives are destroyed in war. The only accountability mechanisms for civilian harms are limited to unlawful acts: individuals who willfully target civilians or otherwise commit serious violations of international humanitarian law may be prosecuted for war crimes, and states that commit internationally wrongful acts must make reparations under the law of state responsibility. But no entity is liable for lawful but unintended harmful acts—regardless of how many or how horrifically civilians are hurt.
The lack of legal remedy for civilian harms is a holdover of an earlier international legal order, where individual rights weren’t recognized. The creation of war crimes was a first step towards greater accountability for civilian harms in armed conflict; it’s time to take the next one.
This Article proposes developing an international “war torts” regime to hold states strictly liable for all civilian harms. Just as tort and criminal law coexist and complement each other in domestic legal regimes, war torts and war crimes would overlap but serve different aims. Establishing state liability and creating a route to a remedy would not only increase the likelihood that victims would receive compensation; it would also create much-needed incentives for states to mitigate or reduce civilian harms. Collectively, a war torts regime would further the law of armed conflict’s foundational purpose of minimizing needless civilian suffering.
Thursday, March 10, 2022
Yehuda Adar & Ronen Perry have posted to SSRN Negligence Without Harm. The abstract provides:
The colloquial phrase “no harm, no foul” captures one of the most fundamental tenets of negligence law: the tort is incomplete and there can be no legal redress without proof of actual harm. Mere exposure to risk, even when it is foreseeable and unreasonable, is not actionable. The Article dares to challenge this time-honored, deep-rooted, and highly impactful legal axiom.
Part I restates the traditional quadripartite structure of the tort of negligence, highlights the implications of the harm requirement, and briefly reviews and characterizes past attempts to circumvent it.
The Article then launches a three-pronged attack on this traditional structure:
(1) Part II uncovers the internal normative incoherence of existing negligence doctrine (where breach of a legal duty does not in itself have legal repercussions) and offers “negligence without harm” as a coherent alternative.
(2) Part III provides a fairness-based case for abolishing the harm requirement, fostering the idea that negligence, defined as exposing another person to foreseeable unreasonable risk, is a moral wrong as between the risk-creator and the risk-bearer irrespective of harm.
(3) Part IV presents an economic case for the proposed reform, arguing that if tort law aims to prevent the creation of unacceptable risks, it does not have to await harm and use the indirect, complicated, and seemingly flawed method of ordering some people to pay compensatory damages ex post in order to ensure internalization by others ex ante.
Finally, Part V supplements the theoretical analysis with a tentative scheme of legal remedies for negligence without harm.
Tuesday, March 8, 2022
John Murphy has published The Province and Politics of the Economic Torts with Hart Publishing. The blurb provides:
Economic torts play a key role in the development of private law more generally. Indeed, the landmark case of OBG v Allan (2008) provided one of the most important decisions in the whole of the law of torts in the last generation, as the House of Lords sought to bring order to an area of the law that has long been beset by doctrinal and theoretical puzzles. Probably the most enduring question of all in this area is whether the economic torts can be unified. This book argues that the search for unity is a will o' the wisp. More particularly, it shows that although some juridical connections exist between some of these torts, there is far more that separates them than unites them. Offering a unique perspective, this is a landmark publication on the law of economic torts.
Order online at www.bloomsbury.com – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!
Monday, March 7, 2022
The ALI has designated Nora Freeman Engstrom, Reporter for the Restatement (Third) of Torts: Concluding Provisions, as the R. Ammi Cutter Reporter's Chair. Reporter's Chairs are awarded at the ALI to Reporters of proven effectiveness and are a mark of outstanding service. Engstrom shares the reporting duties on Concluding Provisions with Mike Green, who received the Cutter Chair for his work on prior part of the Restatement.
Additionally, the ALI designated Henry Smith the A. James Casner Reporter's Chair. Smith is the Reporter for the Restatement (Fourth) of Property. There is a tort tie here, as the property torts were included in the Restatement (Fourth) of Property. John Goldberg acts as an Associate Reporter with a focus on tort law.
The announcement is here.
Friday, March 4, 2022
Judge Guido Calabresi & Spencer Smith have posted to SSRN On Tort Law's Dualisms. The abstract provides:
We read with interest Professors John Goldberg and Benjamin Zipursky’s new book, Recognizing Wrongs; Professor Catherine Sharkey’s Book Review; and Goldberg and Zipursky’s Response. Their exchange demonstrates that the field of tort law is alive. But is it well?
Goldberg and Zipursky (hereinafter GZ) and Sharkey put forward what are, at first glance, very different theories of tort law. GZ have updated their civil recourse theory to a theory of “wrongs and redress.” And that is good. But Sharkey maintains that there is still something missing from GZ’s theory: a convincing explanation of what constitutes a civil wrong. Sharkey casts the “cheapest cost avoider” theory as “protagonist,” arguing that it and other instrumentalist theories of tort law are “paramount,” at least when it comes to modern torts, such as products liability.
We think both “sides”—if you want to call them that—miss something. At one level, tort law is about wrongs and redress. That is the private side of torts. And it is what courts do much of the time. At another level, tort law is about preventing harms or, if you like, about the regulatory needs of society. That is the public side of torts. And it is what courts do on occasion, and what legislatures and administrative agencies do very often. If you fixate only on one side or the other, you fail to appreciate the whole of tort law.
The exchange between GZ and Sharkey is full of dualisms: ubi jus ibi remedium, “wrongs and redress,” “‘private’ tort and ‘public’ regulation,” Prosser’s “dual instrumentalism,” GZ’s “dual constructivism,” et cetera. At the risk of piling on, we would like to add two of our own: First, tort law operates at dual levels. There is the level of the case. And there is the level of structure. Once you see tort law in this way, GZ’s and Sharkey’s theories fit together. Second, tort law operates in dual directions. What constitutes a civil wrong most often derives from the regulatory needs of society, and hence often from a desire to place liability on the “cheapest cost avoider.” But what is “cheap” and what is “costly” itself derives from the tastes and values of society, which can be influenced by the current set of civil wrongs. This reverse link, which is sometimes missed, may well represent the future of tort law. And this is so precisely because tort law does need to respond to society’s regulatory needs.
Wednesday, March 2, 2022
Jonathan Cardi & Martha Chamallas have posted to SSRN A Negligence Claim for Rape. The abstract provides:
Tort law has failed to respond to the intolerably high incidence of rape and sexual assault in the U.S. By any measure, there is glaring disparity between the paltry number of tort claims brought by rape victims and the vast number of sexual assaults committed each year. Among the multiple reasons for the underutilization of tort law is the inadequacy of traditional doctrinal frameworks for litigating such cases, particularly the assumption that a rape victim must bring an intentional tort claim to recover against an offender. The labyrinthine doctrine of consent that looms large in intentional tort cases has deterred plaintiffs from suing and has made it difficult for plaintiffs to prevail, even when a defendant’s sexual conduct is undesired and harmful.
Our solution is to allow tort plaintiffs the option of bringing a negligence claim against the offender, centering the litigation on the unreasonableness of the defendant’s conduct rather than the consent of the plaintiff. Allowing a negligence claim for rape responds to the countless date and acquaintance rape cases in which the defendant’s unreasonable conduct has undermined the plaintiff’s ability to consent freely – creating a risk of coercion – and to those cases in which a defendant has placed his interests above the plaintiff’s by taking a risk that the plaintiff has not in fact consented. The option of negligence will allow juries to evaluate contested cases in a straightforward fashion and will provide a more secure route to adequate compensation, particularly if courts determine that such negligence claims are not subject to the “intentional acts” exclusion in insurance contracts.
Courts will face a variety of doctrinal questions in litigating such negligence-based rape claims, including the proper categorization of the injury as physical versus emotional harm and the availability of the contributory/comparative negligence defense. Because affording such a negligence option would not preclude plaintiffs from also asserting intentional tort claims, it is important that courts not view such claims as mutually exclusive and that plaintiffs be given the opportunity to argue in the alternative.
Tuesday, March 1, 2022
Cristina Carmody Tilley has posted to SSRN Just Strict Liability. The abstract provides:
Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault; namely, the delegation of relational labor to inanimate, care-insensitive, instrumentalities. These delegations may be efficient and low-risk, but they are genuine wrongs because they treat relational counterparts as unworthy of authentic human care. This theory not only explains longstanding strict liability for activities like blasting, it also has the power to address the modern wrong of injury-by-algorithm. Indeed, as the regulatory state permits market scions to replace real relationships with artificially intelligent ones, tort may be the only body of law able to guarantee that technology serves society and not the opposite.