TortsProf Blog

Engstrom & Stone on Auto Clubs and Access to Justice

Nora Freeman Engstrom & James Stone have posted to SSRN Auto Clubs and the Lost Origins of the Access-to-Justice Crisis.  The abstract provides:

In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput.

Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all.

Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.

Simons on the Perspective of Defamation

Ken Simons has posted to SSRN Defamatory in Whose Eyes?.  The abstract provides:

Defamation is a moral and legal wrong that is distinct from the wrongs of insulting or offending a person, lying to a person, or unjustifiably causing emotional distress. Defamation essentially involves harm or injury to a person’s reputation. And reputation is a social concept: it refers to a person’s standing in some relevant audience, i.e., the group or community beyond the speaker and the person.

But from whose perspective must a statement be defamatory? This question has multiple dimensions. Is our only interest whether the person’s standing is lowered in the eyes of the community? Or should we also consider the perspective of the person who claims to have been defamed? Must that person subjectively view the statement as injuring his or her own reputation? Are we also interested in the perspective of the speaker?

The perspective of the person’s group or community is undoubtedly critical, but this prompts additional questions. If only a minority, or even a very small portion, of the community would lower their opinion of the person, while the majority would not, is that sufficient? Moreover, are these further questions descriptive inquiries into how (most, some, or a few) people would react, or instead normative evaluations of how (most, some, or a few) people should react? Or is the most defensible analysis a hybrid or com-bination of descriptive and normative features?

One possible approach to these questions about the defamatory character of a statement asks whether the statement might cause a reasonable person to lower their esteem of the person. But the reasonable person test is inadequate: It obscures critical questions, including the relative weight we should give to descriptive rather than normative perspectives, to subcommunities as opposed to larger communities, or to the varying perspectives of the plaintiff, the speaker, and the relevant community.

The most plausible approach, I will argue, is a largely descriptive perspective that focuses on the actual reactions of both the plaintiff and the subcommunity with which the plaintiff identifies. Defamation law should reject a purely normative perspective that considers only whether members of the community would be justified in lowering their esteem of the plaintiff if the false statement were true. People frequently criticize and even ostracize others for flimsy, irrational, or illegitimate reasons. Yet the resulting reputational injuries are real, and the conduct that causes them is often highly unjustifiable. However, courts should recognize a narrow normative exception and should exclude liability when providing a defamation remedy would contravene a significant public policy, such as the legal principles condemning discrimination on the basis of race or sexual preference.

Lytton on Gary, Indiana's Suit Against Gun Manufacturers

In The Conversation, Tim Lytton has a piece on the demise of "the most consequential legal case against the gun industry in this country."

Abraham & White on Tort Law's Temporality Impasse

Ken Abraham & Ted White have posted to SSRN Tort Law's Temporality Impasse.  The abstract provides:

It has long been said that the common law "works itself pure" But in the law of torts, not always. This Article reveals and analyzes the inconsistencies among a set of tort doctrines whose relationship to each other has gone unrecognized for over a century-and-a-half. These are what we call the “temporality” doctrines. Temporality occurs when wrongdoing by more than one party, whether two or more defendants or a defendant (or defendants) and a plaintiff, occurs sequentially rather than simultaneously. At least half-a-dozen seemingly unrelated tort law doctrines deal directly with temporality issues. These include avoidable consequences, anticipatory failure to mitigate damages, negligent enablement of subsequent tortious conduct, negligent aggravation of harm caused by prior tortious conduct, liability to rescuers, last clear chance, and comparative negligence.

In different ways, these doctrines are often in serous in conflict in their treatment of temporality. For example, under some of the doctrines, both the first and the second wrongdoer are responsible for the injuries at issue. That is true under enablement and aggravation. Under some of the others, however, only one of the wrongdoers is responsible. That is true under avoidable consequences. Other blatant conflicts also exist. There are seemingly rational reasons for each doctrine and for the treatments of different forms of sequential wrongdoing they address, but at least some of those reasons would also apply to other doctrines that adopt the opposite approach. There is what amounts to an intellectual separation among the doctrines. Because each doctrine occupies its own conceptual silo, neither the courts nor torts scholars have recognized that each of the temporality doctrines is related to the others.

That is tort law's temporality impasse. Our analysis identifies the previously-unrecognized connections among these doctrines and teases out the fundamental contradictions among them – contradictions that are not going away and – for a series of reasons we describe in detail -- probably cannot go away. The common law in this area is not working itself pure, and has no prospect of doing so.

CA: Climate Lawsuit

Last September, California Governor Gavin Newsom and Attorney General Rob Bonta announced a lawsuit against "Big Oil" for climate change damage.  Causes of action include public nuisance and failure to warn pursuant to both negligence and strict products liability.  The complaint is here.  Similar lawsuits have failed in the past, but the government of California hopes that a change in public perception will influence the outcome in this case.  NPR has details.

Mass Torts Increase Federal Lawsuits in 2023

The number of federal lawsuits increased dramatically in 2023, led by earplug suits against 3M and talcum suits against J&J.  Reuters has the story.

Three by Tilley

Cristina Tilley has posted three pieces to SSRN.  First, Impaired, in Pairs.  The abstract provides:

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional tort in which a predator strategically targets a plaintiff whose autonomy will be negated. The modern reality – that many, if not most, rapes take place between drunken acquaintances whose cognition and judgment have been dulled – is underaccounted for in modern tort doctrine. This Article urges a new look at tort’s categorization of wrongdoing in non-collaborative sex. The reflexive assumption that sexual wronging is intentional has placed the weight of sexual assault adjudication on the question of female consent. And while tort doctrine appears willing to acknowledge that sex often goes wrong when drugs and alcohol are involved, it takes a curiously gendered approach to the role that impairment plays. How so? The Restatement of Tort fixates on holding women responsible when they drunkenly, but mistakenly, signal consent. But it does not consider whether to hold men responsible when they drunkenly, but mistakenly, conclude they have consent. When both parties are cognitively dulled in this fashion, it may be doctrinally unprincipled to say that either has the capacity to intend their actions. If so, the Article suggests, physical oppression associated with non-collaborative, intoxicated, sex might be better placed in the tort categories of negligence or strict liability, where cognitive purpose is not the sine qua non of wrongdoing.

Second, A New Private Law of Policing.  The abstract provides:

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in the campaign for just middle spaces, taking as its exemplar the problem of racially oppressive policing. Inequitable policing arises from both system-level policies and personal officer biases. Public law can remake systems, but struggles to remake people. Consequently, this piece argues that the legal quest for humane policing has overemphasized public law litigation under 42 U.S.C. Section 1983 and underemphasized the private law of tort. Personal injury law, specifically the intentional infliction of emotional distress (IIED) tort, has untapped potential to influence the private bias of officers and the communities they serve. IIED invites individuation of Black litigants, self-reflection on the meaning of racial dignity in middle spaces, and construction of shared norms about civilian humanity—a panoply of exercises social psychologists have identified as the essential tools of anti-bias work. Returning to broader themes, the article builds on the example of inequitable policing to petition for full private law partnership in the bid for twenty-first century social justice.

Third, Living as One:  Tort Law and a Duty to Imagine.  The abstract provides:

From the nation’s founding until the present day, tort has been a body of law concerned with the construction of American community. Courts in the first era of American tort decided neighbor-to-neighbor conflicts according to local morality. Over time, scholars and judges managing industrial growth shifted to a second era of American tort, focused on assigning the cost of risks between economic strangers. And as the twenty-first century churns forward, it may be time for a third era of tort – one dedicated to forging social cohesion between diverse identity groups. But if tort is going to rise to the twenty-first century challenge of repairing social fracture, it may have to shuffle off notions of duty adopted by and for actors aspiring to market might. Put simply, modern Americans may no longer owe each other just a duty to foresee the physical impact of their conduct, but also a duty to imagine the dignitary impact of their conduct on fellow participants in the national community.

Long & Baxter's Torts: A Modern Approach, Second Edition

Alex Long & Teri Dobbins Baxter are publishing Torts:  A Modern Approach (2d ed.).  The blurb provides:

This casebook takes a modern approach to the learning that takes place in the first year of law school. It utilizes a mix of classic torts cases and more recent cases, and the notes are limited in number and length to keep students engaged.

Each chapter begins with an outline of key concepts and also a hypothetical set of facts that students can use to orient themselves throughout the chapter. There are also short problems throughout each chapter, which build on the chapter-opening hypothetical, requiring students to apply the law. At the end of each chapter or section there is a short issue-spotting essay question related to chapter content.

A complimentary copy can be ordered here.

Forthcoming May 2024 | ISBN 978-1-5310-2547-2 | casebound | TEACHER’S MANUAL FORTHCOMING

Swan on Plaintiff Police

On Friday, March 22 at noon (EST), the Tort Law and Social Equality Project will host Sarah Swan for her presenation on plaintiff police:

“Plaintiff Police” explores the recent trend of local police officers increasingly bringing civil lawsuits against those that they police, particularly in high-profile situations where the police have been accused of wrongdoing. For example, police officers have initiated multiple lawsuits suing Black Lives Matter protestors, police officers have sued rapper Afroman for using footage of their search of his home in a recent music video, and a Louisville police officer who participated in the Breonna Taylor raid sued her boyfriend for shooting at him when they began the raid into the apartment. This project theorizes these suits as democratic harms that degrade the relationship between the citizenry and local governments, considers why existing tools like the fireman’s rule and anti-SLAPP legislation are inadequate responses, and offers an approach that navigates the space between the value of open courts on the one hand, and the importance of robust protest and political participation on the other.

The flyer, including Zoom link is here:  Download Swan TLSE Poster

OR: PacifiCorp Must Pay Over $42M to Property Owners for Fire Damage

Last Tuesday, an Oregon state jury determined PacifiCorp owes over $42 million dollars in compensatory and punitive damages to nine homeowners and the owners of a summer camp whose properties were damaged by wildfires in 2020.  Plaintiff's clam the Oregon utility failed to shut off its power lines in high wind; a separate jury has already determined PacifiCorp is liable for gross negligence in starting the fires.  Other claims are forthcoming.  Reuters has the story.

Baker & Sebok on Litigant Financing and Legal Ethics

Lynn Baker and Tony Sebok have posted to SSRN Consumer Litigant Financing and Legal Ethics:  Empirical Observations from Texas.  The abstract provides:

A handful of states, including Texas, have Rules of Professional Responsibility which permit attorneys to provide cash advances to their own clients. In previous work, we suggested that if more states permitted law firms to offer this sort of funding to their clients it would increase competition within the consumer litigant funding market, to the benefit of consumers. We also hypothesized that relaxing these existing prohibitions would better enable tort claimants to decline low-ball settlement offers from defendants in one-off cases.

This paper offers some initial insights into these questions. It reports the findings of our modest empirical study involving semi-structured interviews with four established Texas plaintiffs’ firms that represent a large number of mass tort claimants as well as varying numbers of single-event claimants. We obtained confidential information on the circumstances, frequency, and financial terms under which these sophisticated and well capitalized firms provide cash advances to their clients. We also sought information on each firm’s views on third-party advances to their clients, including their willingness and ability to negotiate repayment haircuts with third-party funders on behalf of their clients.

We found great diversity among the Texas firms in their approach to the opportunity provided by Texas Rule 1.08(d) to advance “reasonably necessary medical and living expenses” to their clients. Our findings suggest that clients are likely to benefit from – and are unlikely to be harmed by – a relaxation of the strict prohibition against attorney advances to their clients that exist in the vast majority of states and in ABA Mode Rule 1.8(e).

JOTWELL Torts: Simons on Gentry on Causation in Loss-of-Chance Cases

At JOTWELL, Ken Simons reviews Elissa Philip Gentry's Damned Causation.

Two by Sebok

Tony Sebok has posted two pieces to SSRN.  First, Making Sense of Abatement as a Tort Remedy.  The abstract provides:

Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does not maintain that it will recur.

This article begins by sketching out the principal that lay beneath the diverse remedies awarded in private and public nuisance. Both private and public nuisance have the same structure: in both a right to redress is grounded on the defendant’s wrongful interference with a capacity, the possession of which the law protects against unreasonable interference. In the case of private nuisance, it is the capacity to use one’s real property to execute one’s lawful plans. In the case of public nuisance, it is the capacity to use a “right common to all” to execute one’s lawful plans.

The article compares and contrasts the role of damages and injunctive relief in private and public nuisance and argues that there are sound reasons based in tort for why damages are not available when the state sues not in its capacity as possessor of private property, but in its capacity as fiduciary for all who could have exercised the public right. In this capacity, damages, unlike in private nuisance, are not a second-best remedy, but are no remedy at all. It follows from this conclusion that it is not enough for a state, in its capacity as a fiduciary public nuisance plaintiff, to argue that an injunction will give something equal in value to the losses suffered by citizens as a result of the defendant’s interference with a public right; it must be able to explain how the injunction will actually reinstate the capacity with which the defendant interfered.

Second, the introductory materials to a casebook, Third-Party Litigation Finance:  Law, Policy and Practice, First Edition.  The blurb provides:

Litigation finance sits at the intersection of many well-known subjects within the law school curriculum: contracts, torts, civil procedure, evidence, professional responsibility, insurance, and capital markets. This casebook provides a foundation for a two- or three-credit class, although many of the chapters could also be used individually as supplemental material for a free-standing unit on litigation finance in another course, such as torts, civil procedure, or the law of lawyering.

This is the first casebook in English on the topic of litigation finance. Although its focus is on the United States, it draws on cases and materials from the United Kingdom. The casebook provides a historical overview of the development of legal doctrines limiting assignment, maintenance and champerty, as well as detailed chapters on contemporary litigation finance in various markets, such as consumer and commercial litigation finance, as well as excerpts from leading academic works on litigation finance as it relates to insurance, lass torts, and legal ethics.

Wells on Compensatory Damages and Dignitary Harm in the Restatement of Constitutional Torts

Mike Wells has posted to SSRN Compensatory Damages and Dignitary Harm in the Upcoming Restatement of Constitutional Torts.  The abstract provides:

A new Restatement of Constitutional Torts, just getting underway, and the Restatement (Third) Torts (Remedies) now in draft, provide an opportunity to revisit issues that have lain dormant for decades. In particular, federal courts typically require constitutional tort plaintiffs to prove physical or emotional harm in order to obtain damages. That doctrine deserves re-examination, if only because the Supreme Court’s principal compensatory damages case dates from 1978, and its most recent ruling on the topic came in 1986.

The new Tort Remedies Restatement offers an opportunity to consider modification of that approach. It includes a new section on the emerging importance of “dignitary” harm. That section provides the American Law Institute’s first systematic account of recovery for dignitary harm in common-law torts. This article argues that the same dignitary harm principle should apply to constitutional torts: When the plaintiff proves a violation of constitutional rights, recovery for dignitary harm should include the distinctive injury caused by the constitutional violation in addition to the physical injury, economic loss, emotional distress, and other harms inflicted by ordinary torts.

Goldberg Appointed Interim Dean at Harvard Law

Congratulations to Harvard on its decision to appoint John Goldberg as interim dean of HLS.  An excellent choice.  

There is something of a trend of tort scholars being named deans in recent months.  In addition to John, we have Leslie Kendrick (UVa), Andy Klein (Wake Forest), and Cynthia Nance (Arkansas) [she's more labor and employment, but she has enough of a torts background that I think we can legitimately claim her].  Am I missing anyone?

OR: Punies Verdict Reduced by Gore Guideposts

In Trebelhorn v. Prime Wimbledon, SPE, LLC, 372 Or. 27 (2024), the Oregon Supreme Court used the Gore guideposts to affirm the reduction of a punitive damages verdict in a premises liability case. 

• A plaintiff tenant sued the landlord of his apartment building after sustaining injuries to his meniscus (knee) when an elevated walkway collapsed under him and his "leg punched through a section of elevated walkway that had been weakened by dry rot." There were obvious and severe structural problems with the apartment building, the defendants knew about them, and failed to fix the problems in a timely fashion, leading to the tenant's injuries.
• The landlord admitted negligence and the trial focused on damages. The plaintiff won at trial and was awarded $45,000 in economic damages, $250,000 in noneconomic damages, and a s10,000,000 in punitive damages by the jury.
• After post-trial motions in which the defendants successfully argued that the punitive damages violated the Due Process Clause of the Fourtheenth Amendment, the court reduced punitive damages to $2,660,373, determining that the original punitive damages at a ratio of 33:1 was excessive. The court of appeals affirmed.

The supreme court also affirmed.

• Up until now, the supreme court has only applied these factors to cases involving purely economic harm. The court stated that "the evidence permitted the jury to draw reasonable inferences about defendants’ conduct that suggest a high degree of reprehensibility." The plaintiff also suffered physical harm, and thus there was no clear precedent to follow.
• Ultimately, however, the court held that, despite the reprehensibility of the defendants' negligence and the existence of physical harm, the "single-digit ratio" (9:1) limitation to punitive damages proffered in Campbell is still a good determination of punitive damages allowable without violating the defendants' constitutional rights to due process, even if a plaintiff suffers physical harm/damages.
• Predictably, the court refused to hold that a 9:1 ratio is a bright-line rule for such limitations and left the possibility for a higher ratio when a defendant's actions are "extraordinarily reprehensible."

Thanks to Andres Navarro.