TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Thursday, April 28, 2022

Mullenix on the Negotiation Class

Linda Mullenix has posted to SSRN The Short Unhappy Life of the Negotiation Class.  The abstract provides:

On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division approved a novel negotiation class certification in the massive Opiate MDL. Merely one year later September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.

This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry.

The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class.

The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace.

The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorney generals raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory.

The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster’s embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule.

It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model.

April 28, 2022 in MDLs and Class Actions, Scholarship | Permalink | Comments (0)

Wednesday, April 27, 2022

CA: Deal to Raise MICRA Med Mal Damage Cap

A compromise among trial lawyers, medical groups, and lawmakers has been reached that will raise California's medical malpractice caps and avert a November ballot initiative.  In 1975, California passed MICRA, which capped pain and suffering damages in med mal cases at $250,000.  The cap has not been raised since.  In today's money, $250,000 is equivalent to approximately $1.3 million.  According to Cheryl Miller at

The deal will raise California’s current $250,000 limit on noneconomic damages starting in 2023 to $350,000 in incidents where the victim does not die, and to $500,000 in wrongful death incidents. The caps will continue to rise incrementally over the following 10 years to $750,000 and $1 million. After 2033, the award limits will increase by 2% annually.

Bravo to all involved!  The story (behind a paywall) is here.

April 27, 2022 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0)

Shapiro on Procedural Wrongdoing

Matthew Shapiro has posted to SSRN Procedural Wrongdoing.  The abstract provides:

Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct—their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the benefits and minimize the costs of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of the effects of litigation conduct, but rather in terms of parties’ motivations, forbidding parties to act with certain motives or for certain purposes. According to these rules, which this Article labels motivation-sensitive restrictions, the very same litigation conduct can either constitute procedural wrongdoing or not, depending on a party’s motivations for engaging in it.

This Article provides a comprehensive analytical account of civil procedure’s motivation-sensitive restrictions. In doing so, it contends that the restrictions have ambiguous normative consequences for civil justice. On the one hand, the restrictions can foster a thin but nevertheless valuable form of procedural civic virtue, prodding parties to attend to important public values even as they pursue their own private ends through the civil justice system. On the other hand, precisely because they focus on parties’ subjective purposes, the motivation-sensitive restrictions risk inflaming public discourse about civil justice by inviting participants in policy debates to transmute their disagreements into moralized accusations of abuse or bad faith. We can try to mitigate these latter, discursive effects by emphasizing the relatively modest demands imposed by the motivation-sensitive restrictions—the fact that such rules require parties only to abjure certain illicit purposes rather than to become purely public-regarding in their litigation behavior.

This Article’s account of civil procedure’s motivation-sensitive restrictions also sheds new light on leading theories of civil justice, which have largely glossed over the doctrinal infrastructure for addressing procedural wrongdoing. In contrast to the “private enforcement” model espoused by most civil procedure scholars, the motivation-sensitive restrictions (modestly) limit the purposes parties may pursue through civil litigation but make no systematic attempt to ensure that parties promote rather than subvert governmental regulatory policy, belying common portrayals of plaintiffs as stand-ins for the state—“private attorneys general.” But the restrictions also expose an underappreciated public dimension of prominent theories of private law, insofar as they curb party autonomy by requiring parties to attend directly to public values when taking certain actions during civil litigation. Civil procedure’s motivation-sensitive restrictions, in short, reveal the civil justice system to be both more private and more public than how it’s generally understood.

April 27, 2022 in Scholarship | Permalink | Comments (0)

Monday, April 25, 2022

Steel on Culpability and Compensation

Sandy Steel has posted to SSRN Culpability and Compensation.  The abstract provides:

This paper examines the role of moral culpability in relation to legal duties to compensate. It explains why duties to compensate generally arise independently of culpability, but why culpability considerations still play a role in determining the incidence and extent of compensatory liability.

Despite the prevalence of culpability-independent liability in private law, I describe various doctrines which nonetheless appear either to require culpability to establish liability or justify an expanded liability by reference to it. The paper offers various explanations of these doctrines. In some cases, they are probably mistaken. In other cases, the appearance that the doctrine makes liability hinge upon culpability is misleading. In still others, culpability justifies an expanded liability in virtue of defeating or diminishing an objection to liability that would otherwise exist. That objection may be one that, as Cane has argued, points to the social interest in conditioning liability upon culpability. But it may also be an objection that an individual defendant could reasonably make to bearing the particular form of liability in the absence of elevated culpability. I conclude with some sceptical observations on views which would elevate moral culpability to a positive sufficient ground of compensatory liability in private law, alongside responsibility.

April 25, 2022 in Scholarship | Permalink | Comments (0)

Friday, April 22, 2022

Sharkey on Online Platforms as Cheapest Cost Avoiders

Cathy Sharkey has posted to SSRN Products Liability in the Digital Age:  Online Platforms as 'Cheapest Cost Avoiders'.  The abstract provides:

Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases from brick-and-mortar stores toward digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating a panoply of potential harms to consumers and raising the question of how liability rules should respond, especially in light of the development of international e-commerce and cross-border sales.

Consideration of liability for online platforms as “cheapest cost avoiders” reveals the mechanism by which courts’ decision to impose liability on new entities derives from the regulatory needs of society, and hence the desire to pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over times, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in its development, judges relied explicitly on deterrence, prevention of harm, or CCA rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, recognized new harms and/or expanded tort liability.

April 22, 2022 in Products Liability, Scholarship, Web/Tech | Permalink | Comments (0)

Tuesday, April 19, 2022

Galligan on Duty/Breach Conflation in Louisiana

Tom Galligan has posted to SSRN Continued Conflation Confusion in Louisiana Negligence Cases:  Duty and Breach.  The abstract provides:

Negligence has five elements: duty, breach, cause-in-fact, scope of risk, and damages. Logic dictates that courts, lawyers, scholars, and law students should keep them separate. But they consistently fail to do so. Courts continue to conflate or collapse elements; they combine duty and scope of risk and they combine duty and breach. In combining duty and breach courts purport to determine duty based on the facts of the particular case but, in fact, they are really deciding a question of breach-whether the defendant exercised the care of a reasonable person under the circumstances. In conflating duty and breach courts are turning a mixed question of fact and law—breach—into a question of law. Concomitantly, those courts are taking the breach question away from the factfinder—often the jury--and improperly making it a judicial decision. Even Justice Oliver Wendell Holmes, Jr. notoriously combined duty and breach in his writings and in his articulation of the short-lived stop, look, and listen at grade-crossings “rule.” Sadly, Louisiana courts have frequently followed Justice Holmes’ perilous lead and combined duty and breach in a number of significant instances. The most unfortunate line of jurisprudence manifesting this conflation of duty and breach is the Louisiana Supreme Court’s “open and obvious” risk cases. Herein, building on my prior work on separating duty and scope of risk, I review the jurisprudence from Holmes to the Louisiana open and obvious cases to other Louisiana decisions manifesting the same error. I propose that henceforward courts and scholars clearly separate duty and breach thereby properly allocating the breach decision to the factfinder, unless reasonable minds could disagree.

April 19, 2022 in Scholarship | Permalink | Comments (0)

Monday, April 18, 2022

Feldman on Public Nuisance and the Second Amendment

Heidi Li Feldman has posted to SSRN Public Nuisance Liability and the Irrelevance of the Second Amendment.  The abstract provides:

In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.

States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s. New York has already enacted such legislation. A similar bill has been introduced in California. The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.

April 18, 2022 in Current Affairs, Scholarship | Permalink | Comments (0)

Friday, April 15, 2022

The Kingston Coal Ash Spill, Derivative Immunity, and the Tennessee Silica Claims Priorities Act

In 2008, a dike failure at the Kingston Fossil Fuel Plant operated by the Tennessee Valley Authority released 5.4 million cubic yards of coal ash sludge from an 84-acre containment pond onto an area of approximately 300 acres.  TVA was eventually named the lead agency for cleanup  under CERCLA and hired a contractor to clean up the coal ash; the process continued through 2015.  In 2013, a number of the contractor's workers filed lawsuits claiming the contractor failed to protect them from the coal ash and they developed numerous health problems as a result.  Nine years later, the litigation sprawls across two appellate courts, the Sixth Circuit (for the second time) and the Tennessee Supreme Court.  The Sixth Circuit is set to decide whether the contractor has immunity derivative of any immunity the TVA (a hybrid government agency) would have.  The Tennessee Supreme Court, meanwhile, is going to decide whether the Tennessee Silica Claims Priorities Act applies to the case.  That statute is a reform that includes a 10-year lung cancer latency requirement, a five-year substantial occupational exposure requirement, and various requirements for medical experts providing testimony.  If the statute applies, many of the plaintiffs will be dismissed.  The issues include whether coal ash qualifies as "mixed dust" for purposes of the statute and whether the statute, not invoked until considerably after the complaints were filed, is an affirmative defense.

Anila Yoganathan of the Knoxville News Sentinel has the story.  

April 15, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, April 14, 2022

Torts Visitor at St. Thomas (MN)

The University of St. Thomas School of Law (MN) seeks to hire a visiting professor for Fall 2022 to teach Torts. The ideal candidate would have experience teaching Torts and be able to teach two sections of Torts in the fall term, due to leadership changes at the school. Torts is a 4 credit, fall-only 1L class. Courses will be taught fully in-person, unless the public health situation changes significantly.

We would consider a full year visit for 22-23 (courses in spring term TBD based on the visitor’s expertise) and would also consider a visitor who can teach one section of Torts plus another course in an area of expertise. Please send inquiries and statements of interest to Joel Nichols, incoming Interim Dean, at Review of applications will begin immediately.

April 14, 2022 in Teaching Torts | Permalink | Comments (0)

Wednesday, April 13, 2022

The Immortal Snail 90 Anniversary Conference 26 May 2022

The Law Society of Scotland is organising a conference to celebrate the 90th anniversary of the decision in Donoghue v Stevenson on 26 May this year. Here is the link to the conference page on the Law Society website: Donoghue v Stevenson 90th Anniversary Conference | The Immortal Snail | Law Society of Scotland (

This global, virtual conference is engaging with judiciary, practitioners and academics in those jurisdictions for which the case is significant. We have tried to bring together a global community connected by the impact which Donoghue v Stevenson has upon their legal systems. This is a unique opportunity for the Common Law community to come together to examine, possibly to celebrate, this case. Jurisdictions participating include Australia, New Zealand, Zimbabwe, Nigeria, South Africa, India, Northern Ireland, Scotland, England and Wales, Ireland, the Caribbean, Canada, Singapore and the US.

April 13, 2022 in Conferences | Permalink | Comments (0)

Tuesday, April 12, 2022

Zipursky & Goldberg on a Precedent-Based Critique of Legal Positivism

Ben Zipursky & John Goldberg have posted to SSRN A Precedent-Based Critique of Legal Positivism.  The abstract provides:

The doctrine of vertical precedent requires that courts, except for a jurisdiction’s highest court, must follow an on-point precedent or distinguish it. Lawyers are typically taught that distinguishing a precedent requires a court to articulate why the current case is justifiably treated in a different manner than the precedent. Exclusive legal Positivists are troubled by the phenomenon of distinguishing, because the notion of justification built into the idea of distinguishing precedent appears to call for substantive normative reasoning by lower courts. To respond to this apparent problem, Raz has suggested a model of legal reasoning that treats “distinguishing precedent” as a kind of legal change rather than as law-application. This article contends that the Razian strategy cannot work because it simply gets the law wrong: lower courts are not generally empowered to amend the law. An undistorted description of the practice must recognize that courts engage in small-scale moral reasoning when they distinguish vertical precedents. The last half of the article utilizes several Indiana cases on the affirmative duties of landowners to illustrate the power and authenticity of our anti-positivistic account.

April 12, 2022 in Scholarship | Permalink | Comments (0)

Friday, April 8, 2022

JOTWELL Torts: Robinette on Abraham & White on Tort Law and the Construction of Change

Thursday, April 7, 2022

French on Insuring Intentional Torts

Christopher French has posted to SSRN Insuring Intentional Torts.  The abstract provides:

Conventional insurance law lore provides intentional torts are not, and should not be, covered by insurance. There are four primary justifications for this: 1) injuries or losses must be fortuitous (i.e., accidental) to be covered by insurance, 2) most insurance policies contain express intentionality exclusions that preclude coverage for injuries or losses expected or intended by the insured, 3) wrongdoers should not be permitted to benefit from their own intentional misconduct by allowing insurance to cover their liabilities for such misconduct, and 4) it is against public policy to allow insurance to cover injuries or losses caused intentionally because allowing such coverage would undermine society’s interest in deterring and punishing intentional misconduct. On the other hand, there are other competing public policies that weigh in favor of allowing insurance to cover intentional torts: 1) the enforcement of contracts, and 2) the compensation of innocent victims.

This Article analyzes the competing public policies and arguments in favor of and against allowing insurance to cover intentional torts. In doing so, it discusses numerous lines of liability insurance that expressly cover various types of intentional torts. It then explores whether the theoretical foundation underlying the public policy against allowing liability insurance to cover intentional torts – that intentional misconduct is effectively deterred and punished by disallowing coverage – is supported by empirical evidence. Ultimately, the Article concludes that the compensation of innocent tort victims and the enforcement of contracts outweigh the limited deterrent impact of disallowing coverage. Consequently, the Article makes the novel proposal that, contrary to the conventional wisdom, the default rule should be that liability insurance can cover intentional torts unless there are compelling reasons why the specific type of intentional tort at issue should be deemed insurable. The Article further proposes that, contrary to the current law, insurers be granted subrogation rights against their insureds under certain lines of liability insurance for injuries intentionally and directly caused by their insureds.

April 7, 2022 in Scholarship | Permalink | Comments (0)

Tuesday, April 5, 2022

Hylton on Transferring Legal Rights

Keith Hylton has posted to SSRN Selling and Abandoning Legal Rights.  The abstract provides:

Legal rights impose concomitant legal burdens. This paper considers the valuation and disposition of legal rights, and legal burdens, when courts cannot be relied upon to perfectly enforce rights. Because courts do not perfectly enforce rights, victims suffer some loss in the value of their rights depending on the degree of underenforcement. The welfare implications of trading away and abandoning rights are examined. Victims do not necessarily trade away rights when and only when such trade is socially desirable. Relatively pessimistic victims (who believe their rights are weaker than injurers do) trade away rights too cheaply. Extremely pessimistic victims abandon their rights. Implications for the enforceability of waivers, discrimination in courts, and legal ethics are discussed.

April 5, 2022 in Scholarship | Permalink | Comments (0)

Friday, April 1, 2022

Aristova & Grušić: Civil Remedies and Human Rights in Flux

Ekaterina Aristova and Uglješa Grušić have edited Civil Remedies and Human Rights in Flux with Hart Publishing.  The blurb provides:

What private law avenues are open to victims of human rights violations? This innovative new collection explores this question across sixteen jurisdictions in the Global South and Global North. It examines existing mechanisms in domestic law for bringing civil claims in relation to the involvement of states, corporations and individuals in specific categories of human rights violation: (i) assault or unlawful arrest and detention of persons; (ii) environmental harm; and (iii) harmful or unfair labour conditions. Taking a truly global perspective, it assesses the question in jurisdictions as diverse as Kenya, Switzerland, the US and the Philippines. A much needed and important new statement on how to respond to human rights violations.

Order online at  – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!

April 1, 2022 in Books | Permalink | Comments (0)