TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, September 28, 2022

JOTWELL Torts: Keating on Geistfeld on Strict Products Liability

Monday, September 26, 2022

Spectrum Stabbing Damages Reduced to $1.15 Billion

In late June, a Texas jury found Spectrum liable in the death of one of its customers.  The company employed an internet installer who robbed and stabbed an 83-year-old woman to death.  The jury found the murderer was 10% responsible and Spectrum was 90% responsible.  The jury awarded $375 million in compensatory damages; Spectrum's share was $337.5 million.  In late July, in a second phase of trial, the jury awarded the family $7 billion in punitive damages.  Earlier coverage is here.  

As anticipated, the $7 billion punitive damages award has been reduced by the trial judge.  The plaintiffs' attorneys actually requested the reduction to protect the verdict on appeal.  They requested a ratio of 2:1 and received it.  The total award is now $1.15 billion.  Spectrum states it will appeal.  Dave Simpson at Law360 has the story (behind a paywall; it is also available on Lexis).  

September 26, 2022 in Current Affairs, Damages | Permalink | Comments (0)

Thursday, September 22, 2022

Wells on Absolute Official Immunity in Constitutional Litigation

Mike Wells has posted to SSRN Absolute Official Immunity in Constitutional Litigation.  The abstract provides:

Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence benefits. Shifting from the crude function-based approach to a more nuanced cost-benefit methodology would make good sense—and all the more so because the shift would align the Court’s doctrine with the values it has identified as underlying official-immunity law. Of particular importance, such a reform would support the recognition of multiple exceptions to present-day absolute-immunity rules, thus better serving the overarching remedial goals of constitutional tort law.

September 22, 2022 in Scholarship | Permalink | Comments (1)

Monday, September 19, 2022

SLU: Workers' Comp: 50 Years Later

On October 11, from 9-1 CST, Saint Louis University is hosting a conference entitled "Fifty Years After 'Inadequate and Inequitable':  Reflections on State Workmen's Compensation Laws."  Panelists are Jason Bent, Mike Duff, James Gallen, Price Fishback, and Ye Yuan.  The blurb:

In 1970, Congress noted in its prelude to the enactment of the Occupational Safety and Health Act that “serious questions have been raised concerning the fairness and adequacy of present workmen’s compensation laws in the light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living.”In reaction to these developments Congress established a National Commission on State Workmen’s Compensation Laws to “undertake a comprehensive study and evaluation of State workmen’s compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation.” The Commission formed by President Nixon was tasked with providing a “detailed statement of the findings and conclusions of the Commission, together with such recommendations as it deems advisable” no later than July 31, 1972. That report was made, about fifty years ago. The Commission’s ultimate conclusion was “that State workmen’s compensation laws are in general neither adequate nor equitable.”The purpose of this conference is to reflect upon the significance of the report as a moment in the legal history of the treatment of workplace injury. To aid in the reflection, we discuss what workers’ compensation is, the justice it attempts to effectuate, what happened leading up to the 1970s, and the system’s uncertain future.

CONTACT:

Falethia HawthorneProgram CoordinatorWilliam C. Wefel Center for Employment LawSaint Louis University School of Law[email protected] 

September 19, 2022 in Conferences, Legislation, Reforms, & Political News | Permalink | Comments (0)

Thursday, September 15, 2022

Savige & Witt on Foreseeability

Morgan Savige & John Fabian Witt have posted to SSRN Foreseeability Conventions.  The abstract provides:

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, and juries have established fixes or hacks -- what in this Article we call foreseeability conventions -- to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law’s basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division – even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest.

September 15, 2022 in Scholarship | Permalink | Comments (0)

Wednesday, September 14, 2022

Billauer on Genetic Testing and Negligence

Barbara Pfeffer Billauer has posted to SSRN An Introduction to Using Genetics in Defending Legal Cases:  a Legal Defense Grounded in Genetics--Is DNA-Testing the Magic Wand to Winning (Or Losing) a Negligence Case?.  The abstract provides:

An introduction to the use of genetic markers and mutations to defend causal claims in toxic tort cases, exemplified by recent use in asbestos cases.

September 14, 2022 in Scholarship | Permalink | Comments (0)

Monday, September 12, 2022

Mullenix on the Principles of the Law of Aggregate Litigation

Linda Mullenix has posted to SSRN Aggregationists at the Barricades:  Assessing the Impact of the Principles of the Law of Aggregate Litigation.  The abstract provides:

In 2004 the American Law Institute began work on THE PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION, finally published in 2010. The Principles was addressed to legislatures, administrative agencies, attorneys, private actors, and courts concerning multiparty, multiforum litigation. A purpose of the Principles was to suggest best practices for these institutions and actors.

This essay describes the Principles in the historical context when complex litigation began to dominate federal dockets in the 1980s. It discusses the emergence of a cohort of aggregationists dedicated to liberalizing federal procedure to support, enhance, and encourage the speedy and efficient resolution of complex litigation. The Principles built upon a longstanding ALI concern with the burgeoning and rapidly changing judicial crisis relating to the resolution of complex litigation. The Principles suggested substantial changes in existing class action jurisprudence and judicial case management, recommending more robust embrace of liberalized aggregative procedures. Initially, the Reporters advocated for a root-and-branch revision but, as the essay documents, the final Principles reflected more modest compromises. The essay thoroughly canvasses the proposed recommendations and the subsequent embrace of the proposals.

This essay concludes that while the Principles project has left its mark, courts and legislative bodies still have not addressed or resolved many issues the Principles identified. Since publication most judges seem comfortable with prevailing jurisprudence and not especially interested in rewriting procedural doctrine governing complex litigation. The Principles has not resulted in a root-and-branch revision of aggregate procedure. Rather, reception of the Principles suggests that a more incremental approach to legal reform has prevailed, and the efforts of the avid aggregationists must await another day.

Apart from questions whether the Principles fulfilled its stated purpose, this essay explores fundamental questions about the Institute’s role in moving the law in certain directions based on the goals of committed actors. On one interpretation, the Principles represented a well-intended effort to provide judges with guidance “where there was little established law.” On another, perhaps more problematic view, the Principles represented the desires of actors who, frustrated by judicial resistance to aggregate litigation, used ALI auspices to change the law in a desired direction. These questions go to the heart of the ALI’s role in guiding attorneys, judges, and rulemaking bodies in furtherance of civil justice. Whether the liberalization of aggregate procedure is a desirable goal is a normative question that the ALI Principles project assumed but did not address.

September 12, 2022 in MDLs and Class Actions, Scholarship | Permalink | Comments (0)

Friday, September 9, 2022

The Steamship Reynolds

Many of us teach Vincent v. Lake Erie Transp. Co. around this time of year, the private necessity case of the steamship Reynolds tied to a dock during a terrible storm in Duluth.  A website named "Great Lakes Vessel History" has additional information about the ship.  Apparently the Reynolds was sunk by a German submarine in WW I:

Transferred 1915 to off-Lakes service during World War I.  Cut in two, towed to tidewater and rejoined Torpedoed and sunk May 19, 1918 by German submarine UB-74 off Ile d’Yeu, Bay of Biscay, Atlantic Ocean off the coast of France.

Thanks to Don Gifford for the tip.

September 9, 2022 in Teaching Torts | Permalink | Comments (0)

Monday, September 5, 2022

Avraham & Porat on the Dark Side of Insurance

Ronen Avraham & Ariel Porat have posted to SSRN The Dark Side of Insurance.  The abstract provides:

When insurance works properly it provides insureds with optimal incentives to prevent losses, alongside coverage for losses that could not be prevented efficiently. But insurance has an overlooked dark side to it as well. Insurers employ various tactics to shift losses to their insureds or to their victims in order to minimize their own costs instead of reducing their insureds’ losses. Worse, insurers might also act to increase or maintain long term risks, ensuring the future of the insurance business that can’t exist without risks. To this end, we suspect, insurers engage in anti-competitive practices and trigger harmful behaviors of their insureds or third parties, in order to increase demand for insurance coverage. Policymakers should be aware and critical of insurers’ perverse incentives that counteract the interests of the insureds and society.

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