TortsProf Blog

Fourth Circuit: TSA Screeners Can Be Sued Pursuant to FTCA

The Fourth Circuit joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act.  Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).

Steininger on Fault and Strict Liability in the Principles of European Tort Law

Barbara Steininger has posted to SSRN Art.4:201 Petl:  Revisiting the Grey Areas between Fault and Strict Liability.  The abstract provides:

In 2005, the European Group on Tort Law (EGTL) published the text and commentary of its “Principles of European Tort Law” (PETL). With art. 4:201, the PETL include a rule on the reversal of the burden of proving fault which is intended to cover the grey areas between fault-based and strict liability. Almost 18 years after publication of the PETL, the current paper aims at revisiting these grey areas between strict and fault-based liability. When doing so, the paper first deals with questions of terminology and outlines what is meant by the notion of grey areas between strict and fault-based liability. In a second step, the way these grey areas are dealt with in the Principles is examined and, finally, a few comments on art. 4:201 PETL and the way forward are made.

USSC: Fraud and Bankruptcy Discharge

 The Court held that the 11 U.S.C. § 523(a)(2)(A) exception to discharging debt for money obtained by fraud extends to an unknowing business partner.  Bartenwerfer v. Buckley, 598 U.S. ___, ___, 143 S. Ct. 665, 670, 214 L. Ed. 2d 434, 439 (2023).

JOTWELL Torts: Engstrom on Jolly, Hans & Peck on Juries

At JOTWELL, Nora Freeman Engstrom reviews Richard Jolly, Valerie Hans & Robert Peck's The Civil Jury:  Reviving an American Institution.

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Goldberg, Gramling & O'Rourke on Pharmaceutical Preemption

Phil Goldberg, Christopher Gramling & Sarah O'Rourke have published A Prescription for Pharmaceutical Preemption.  The abstract provides:

Determining liability over prescription drugs is a balancing act.  For some people, medicine can save their lives or enhance their well-being.  But, as medicines can also come with side effects, some people will have unavoidable and perhaps serious adverse reactions.  The United States Food and Drug Administration (FDA) works with manufacturers of prescription drugs to manage known public risks.  The FDA assesses the benefit-risk analysis for each drug and must approve the design and warnings before the drug can be made, marketed and sold.  Once on the market, the FDA continues to work with the manufacturers to identify risks and assure the warnings that accompany the drugs continue to provide adequate information about these risks.  Physicians then manage a patient’s personal risk by deciding, often through informed consent by the patient or responsible person, whether a drug’s benefit-risk profile is appropriate for that patient.

Noll & Zimmerman on MDL Leadership

David Noll & Adam Zimmerman have posted to SSRN Diversity and Complexity in MDL Leadership:  A Status Report from Case Management Orders.  The abstract provides:

In multidistrict litigation, as elsewhere, personnel is policy. As MDL has become a major site for aggregate litigation, commentators have raised concerns that large-scale products liability cases are unduly influenced by a small cadre of elite lawyers whom courts repeatedly appointed to serve in the most powerful MDL leadership roles. Repeated appointments of these "repeat players," commentators worry, facilitate self-dealing, suppress dissent, and aggravate conflicts of interest seen in other areas of aggregate litigation. These concerns about MDL overlap with broader concerns across the bench and bar about the degree to which white people and men dominate important leadership posts, to the exclusion of younger attorneys, women, LGBTQ+ people, and attorneys of color.

In response to these concerns, prominent authorities urged MDL courts to adopt a number of reforms. They recommended that judges appoint leaders through open, competitive processes; create additional leadership posts and committees; and appoint leaders for limited terms in order to create more opportunities for new attorneys to participate in leadership. But, outside of a handful of highly publicized cases, we have little empirical evidence of whether MDL leadership appointments changed in the ways that reformers proposed. This Article—part of a larger, ongoing study of the nature and functions of MDL leaders and the MDL model of aggregate litigation—begins to fill that gap. Drawing on a dataset of thousands of filings and orders that were entered in sixty-eight products liability MDLs pending in June 2019, we report data on the size, composition, and appointment process for MDL leadership slates, and changes in the makeup of leadership slates in the eighteen-year period our dataset covers.

Our data tentatively suggest that reformers' calls for larger, complex leadership slates and frequent competitive leadership appointment processes went unheeded. Examining trends in the size and structure of MDL leadership slates in products liability MDLs, we find little evidence that courts implemented the structural changes that the reformers suggested. Yet, while leadership appointment practices and the complexity of MDL leadership slates do not appear to have changed during the period we studied, we find intriguing changes in who is being appointed to leadership posts. Slightly less than a quarter of leadership appointments in our data went to female attorneys, suggestive of only a trivial increase in women's representation on leadership slates compared to earlier studies. But the majority of leadership appointments also did not go to super-elite repeat player attorneys. And, comparing our findings with earlier work that examined MDLs pending in 2013, we find substantial movement in the attorneys and firms whom MDL courts appointed most frequently to leadership posts.

These findings complicate received wisdom about MDL leadership posts. While we document considerable continuity in who is being appointed to MDL leadership posts and how, our data are suggestive of a deep bench of potential future MDL leaders for judges to choose from, as well as the opportunity for even further change in the future.

Hans & Robbennolt on Tort Decision-Making

Valerie Hans & Jennifer Robbennolt have posted to SSRN Tort law decision-making:  Psychological and legal perspectives.  The abstract provides:

This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

Miller on Formalism, Legality, and the Rule of Law

Paul Miller  has posted to SSRN Formalism, Legality, and the Rule of Law.  The abstract provides:

This chapter examines the relationship between formalist interpretive methodology and ideals of legality and the rule of law. In other work, I have argued that the structural formality of law and deliberatively formalistic legal reasoning are closely associated with legality and the rule of law. Here, I make the case that association is both conceptual and normative. The very ideas of legality, and of the rule of law, are such as to imply the formality of law and the necessity of deliberatively formalistic engagement with the guidance it supplies. In turn, a limited set of values that belong per se to legality and the rule of law attach by implication to legal form and legal formalism. Should a case need to be made for the law’s reliance on form, for its expectation of deliberative formalism, and/or for sophisticated scholarly formalism, one can build it through appeal to the values advanced by the achievement of legality in comportment with rule of law baselines.

That said, all varieties of formalism engage with extant law and its posited morality. As a matter of methodological choice, sophisticated scholarly formalists focus on interpreting the law as found, and on the public justification(s) given for posited law by lawmakers. This means that one must be mindful of taking the bad with the good. The practical reasonableness of our laws, and of the reasons given in public justification for them, is a contingent thing. It turns on more than the law’s responsiveness to the values of legality and the rule of law. One ought to be aware of the moral limits of legal form as well as the moral and methodological limits of legal formalism. I argue that the moral limits of legal form can be discerned only if due attention is paid to the values of practical reason, of moral right and duty, of political morality, of justice, and of the good. And I suggest that the methodological limits of scholarly formalism are (a) implied by awareness of the moral limits (relative to the moral promise) of legal form; and (b) recognition of the ways in which assessment of the soundness of law points beyond the juridical to normative moral and political theory, and to empirical examination of the likely or actual effectiveness of the normative guidance supplied by law.

Tortsprof Don Gifford Named Distinguished University Professor at Maryland

Don Gifford, deservedly, has been named Distinguished University Professor at the University of Maryland.  From the announcement:

“He is, quite simply, a truly leading scholar in the [torts] field recognized as such both in America and internationally," wrote Judge Guido Calabresi, Sterling Professor Emeritus and former dean of Yale Law School and senior judge on the United States Court of Appeals for the Second Circuit, in his letter in support of the nomination. “But every bit as important as his magnificent reputation is the quality of his scholarship. I find myself, again and again, going to what Don has written and edited in my own scholarship and my judicial opinions. And to be blunt, there are mighty few academics of whom I can say that...”  

As dean of the law school from 1992 through 1999, Gifford initiated the efforts to build the current law school building, obtained the legislative approval and funding for the building, raised a majority of the private contributions for it, and saw the building project through its initial architectural design phases. Under his leadership, the level of private giving to the law school quadrupled.

Baker on Insurance in Mass Tort Litigation

Tom Baker has posted to SSRN Where's the Insurance in Mass Tort Litigation?.  The abstract provides:

This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their liability insurers, if any, later; and (4) many mass tort plaintiff law firms rely on non-recourse litigation funding that resembles the earliest forms of commercial insurance – bottomry and respondentia – and there is an emerging insurance market that reduces the cost of this funding and may one day supplant it. In addition to providing a new understanding of the role of insurance in mass tort litigation, this research provides empirical support for two of the conceptual insights in Kenneth Abraham’s Liability Century: (1) the mismatch between product liability and product liability insurance that emerged near the end of the 20th Century, and (2) the increasingly insurance-like function of tort law.

Lytton on the Coverup of Child Sexual Abuse

Tim Lytton has posted to SSRN Tort Claims for the Coverup of Child Sexual Abuse:  Private Litigation, Corporate Accountability, and Institutional Reform.  The abstract provides:

Tort claims for the coverup of child sexual abuse exemplify the use of civil litigation as an effective response to serious corporate misconduct. This Article analyzes how tort claims against Catholic dioceses, the Boy Scouts of America, and U.S.A. Gymnastics empowered child sexual abuse survivors to hold powerful institutional leaders accountable for covering up and facilitating the abuse. The Article demonstrates the importance of access to civil justice when corporate interests capture law enforcement and administrative agencies, as well as the therapeutic values of the litigation process for victims of traumatic injury.

Wright and Stapleton Discuss Causation

Richard Wright has posted to SSRN Dialogues on Causation with Stapleton.  The abstract provides:

This paper, forthcoming in an Oxford University Press festschrift in honour of Jane Stapleton, retraces my discussions and debates with her over several decades on the concept of causation and its employment in determinations of legal responsibility. Until recently, she agreed with me on the need (i) to distinguish causation in its core sense of factual, scientific causation from the further issues involved in the determination of legal responsibility and (ii) to employ the more comprehensive, philosophically based NESS (necessary for the sufficiency of a sufficient set) analysis of causation to handle properly cases that are not properly resolved by the traditional but-for test. However, an incomplete understanding of the NESS analysis, combined with her aversion to philosophical analysis and her desire to employ concepts with which judges are familiar, have led her to propose “more forensically useful” modified-but-for versions of the NESS analysis, all of which are deficient. Nevertheless, her papers have required me to further clarify and elaborate the NESS analysis and have contributed to its general acceptance by academics and increasing acceptance and use by the courts, including the highest courts in Australia, the United Kingdom and the United States.

Twitter, Inc. v. Taamneh

Two weeks ago, the USSC ruled that victims of a terrorist attack in Turkey failed to state a claim for aiding and abetting against certain social media companies under Section 2333(d)(2) of the Antiterrorism Act.  The Court cited Restatement (Second) of Torts and Restatement (Third) of Torts:  Intentional Torts to Persons.  The ALI Adviser covered the case:

Associate Justice Clarence Thomas, writing for a unanimous Court, explained that our legal system seeks to impose liability for aiding and abetting on those with “[s]ome level of blameworthiness,” and cited Restatement of the Law Second, Torts § 876, Illustration 9, in noting that, if liability were expanded too far, “those who merely deliver mail or transmit emails could be liable for the tortious messages contained therein.” The Court rejected the plaintiffs’ argument that the defendants could be liable if they aided and abetted ISIS generally, and explained, citing Restatement of the Law Second, Torts § 876(b) and Comment d thereto, that “a defendant must have aided and abetted (by knowingly providing substantial assistance) another person in the commission of the actionable wrong—here, an act of international terrorism.” The Court also determined that the defendants, who posited that they were liable only if they directly aided and abetted the attack, “overstate[d] the nexus that §2333(d)(2) requires between the alleged assistance and the wrongful act,” because “aiding and abetting does not require the defendant to have known ‘all particulars of the primary actor’s plan,’” according to Restatement of the Law Third, Torts: Intentional Torts to Persons § 10, Comment c (T.D. No. 3, 2018) and Restatement of the Law Second, Torts § 876, Illustration 10. The Court noted that, as was the case in Halberstam, a secondary defendant who aided and abetted a tort could be liable for torts that were a foreseeable risk of the intended tort, and the “secondary defendant’s role in an illicit enterprise can be so systemic that the secondary defendant is aiding and abetting every wrongful act committed by that enterprise.” Citing § 876, Comment a, the Court clarified that conspiracy liability “typically holds co-conspirators liable for all reasonably foreseeable acts taken to further the conspiracy,” but “aiding and abetting lacks the requisite agreement that justifies such extensive conspiracy liability.”

The Court concluded that, “[g]iven the lack of nexus between that assistance and the Reina attack, the lack of any defendant intending to assist ISIS, and the lack of any sort of affirmative and culpable misconduct that would aid ISIS, plaintiffs’ claims fall far short of plausibly alleging that defendants aided and abetted the Reina attack.”

The full opinion is here.