Friday, May 7, 2021
Stephen James Bogle has posted to SSRN Private Law Theory and the Past. The abstract provides:
Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorizing by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.
Wednesday, May 5, 2021
Justice Thomas issued a dissent from cert denial in which he made it clear he believes Feres was a policy judgment by the Court and not based on the Federal Tort Claims Act. He stated succinctly, "Feres was wrongly decided." ABA Journal has the story.
Tuesday, May 4, 2021
Monday, May 3, 2021
Ronen Avraham & Kimberly Yuracko published an important op-ed in The Washington Post late last week entitled "The use of race- and sex-based data to calculate damages is a stain on our legal system." Steve Lubet has more at The Faculty Lounge. In addition to the contribution of Judge Jack Weinstein, mentioned in the op-ed, Martha Chamallas and Jenny Wriggins have done significant work in this area.
Friday, April 30, 2021
Bob Rabin has posted to SSRN Stephen Sugarman and the World of Responsibility for Injurious Conduct. This piece is from a festschrift for Steve put on by the California Law Review. Bob also spoke yesterday at a moving celebration in honor of Steve's career. The abstract provides:
For a festschrift celebrating the scholarship of Professor Stephen Sugarman, I was asked to discuss his contributions to the area of accident law. Professor Sugarman’s published work runs across the spectrum of responsibility for injurer-based harm, embracing intentional misconduct, fault-based recovery, strict liability, no-fault compensation schemes, and social insurance. In addition to this wide-ranging and cogent analysis of approaches to liability and compensation, Sugarman has complemented his system-based work with perspectives from the vantage points of history, public policy formation, and jurisprudential assessment of tort and tort alternatives.
My coverage unfolds as follows. I begin with Sugarman’s landmark initial excursion into the world of tort law in which he advocated the replacement of tort with a social insurance scheme. Next, I discuss his more focused tort replacement studies in the world of no-fault liability. Then, I examine his critiques of tort doctrine and his interdisciplinary approaches to the system, which include historical and jurisprudential perspectives. I conclude on a personal note.
Wednesday, April 28, 2021
Cathy Sharkey has posted to SSRN Valuing Black and Female Lives: A Proposal for Incorporating Agency VSL into Tort Damages. The abstract provides:
Incorporating a uniform VSL would ameliorate the hitherto unaddressed and unjustified race and gender bias in tort awards. The substitution of a uniform VSL for race- and gender-based statistics addresses the racialized and gendered deterrence gap that has led to skewed incentives for actors to take precautions against harms to blacks and women. Moreover, with regard to the inevitable underdeterrence/overinsurance tradeoff that arises in formulating wrongful death damages, the “cost” of the overinsurance/overcompensation can be viewed as the “price” paid in order to provide equitable treatment across demographic groups, to ensure that defendants respect the same uniform duty of care for all plaintiffs, and to eradicate the perverse incentives for adverse risk allocation.
Tuesday, April 27, 2021
Friday, April 23, 2021
I have posted to SSRN Harmonizing Wrongs and Compensation. My contribution to the Maryland Law Review's Festschrift for Oscar Gray, the abstract provides:
In his seminal work, Tort Law in America, Ted White describes tort law as vacillating between a focus that is admonitory, based on conduct that is wrongful, and compensatory, providing the injured with resources to allay their injuries. Instead of continuing to vacillate between opposing theories of tort law, this article proposes to blend them. The concept is a tort law that is generally wrongs-based, but has a compensatory bypass.
There are two significant reasons to adapt compensation to a wrongs-based theory of tort law. First, incorporating compensation into tort law would match the motivations of many parties in the tort system and help improve its administration. I practiced tort law for seven years. Some of my clients were interested in vindication, but the majority were motivated by compensation, by which I mean they needed money to pay for their medical bills and/or lost wages. There is a problem, however, with sending both types of plaintiffs into the same tort system. Tort law, particularly negligence, is uncertain, and that uncertainty leads to delay and transaction costs. For plaintiffs interested in vindication, perhaps the time needed to pay close attention to facts and circumstances makes sense. After all, determining whether one has been wronged is a serious inquiry. Those features, however, are counterproductive to compensating the injured. Tort law that was able to vindicate rights in proper cases, but also efficiently compensate in others, would be ideal.
Second, history demonstrates that waves of injuries pressure tort law, and the law responds in a compensatory manner. It is foreseeable that injuries will continue to pressure tort law, and it makes sense to incorporate a mechanism to handle that pressure. Moreover, history provides guidance about the likely character of a compensatory bypass: compensation would become easier to obtain, but in smaller amounts.
Thursday, April 22, 2021
Ronen Perry has posted to SSRN The Unidentified Wrongdoer. The abstract provides:
The Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.
Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.
Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong unidentifiability problems lawmakers should focus on four types of costs: (1) the cost for the victim of identifying the unknown wrongdoer using advanced procedural tools, (2) the cost for a third party of obtaining and retaining information about the wrongdoer’s identity, (3) the cost (and expected impact) of precautions a third party could take to reduce the likelihood of the wrongdoing, and (4) the cost of non-enforcement.
Part II then outlines the selection principle, explains that its application is context, jurisdiction, and time-specific, and applies it to four common cases of strong unidentifiability: intentional violations of bodily integrity, life, or liberty by unknown perpetrators, injuries caused by defective products whose manufacturers are unidentified, anonymous online wrongdoing, and hit-and-run accidents.
Monday, April 19, 2021
Friday, April 16, 2021
Simone Degeling, Michael Crawford, and Nicholas Tiverios have published Justifying Private Rights by Hart Publishing. The blurb provides:
Many of the most influential contributions to private law scholarship in the latter part of the twentieth century go beyond purely doctrinal accounts of private law. A distinctive feature of these analyses is that they straddle the divide between legal philosophy, on the one hand, and the sort of traditional doctrinal analysis applied by the courts, on the other. The essays contained in this collection continue in this tradition. The collection is divided into two parts. The essays contained in the first part consider the nature of, and justification for, private rights generally. The essays in the second part address the justification for particular private law rights and doctrines. Offering insightful and innovative analyses, this collection will appeal to scholars in all fields of private law and legal theory.
Feb 2021 | 9781509931958 | 296pp | Hbk | RSP:
Discount Price: £64
Order online at www.hartpublishing.co.uk – use the code UG7 at the checkout to get 20% off your order!
Thursday, April 15, 2021
Over at JOTWELL Torts, I review Alex Long's Using the IIED Tort to Address Discrimination and Retaliation in the Workplace.
Wednesday, April 14, 2021
Linda Mullenix has posted to SSRN Outgunned No More? Reviving a Firearms Industry Mass Tort Litigation. The abstract provides:
In November 2019, the United States Supreme Court denied certiorari in Remington Arms Co. v. Soto, on appeal from the Supreme Court of Connecticut. In so doing, the U.S. Supreme Court let stand the Connecticut court’s determination that plaintiffs in gun litigation arising out of the 2012 Sandy Hook elementary school massacre could litigate wrongful death claims under Connecticut consumer protection and unfair trade practice statutes. In making that determination, the Connecticut Supreme Court held that the federal Protection of Lawful Commerce in Arms Act (PLCCA) did not preempt the plaintiffs’ claims under state law. The Connecticut court decided that the plaintiffs’ claims came within PLCCA’s third exception to immunity, the so-called “predicate statute” exception. The Remington Arms litigation is important because it may signal a pathway for further firearms litigation against gun defendants in other states pursuant to state consumer and unfair trade practice statutes. This article assesses whether the Remington Arms precedent provides a possibility for reviving a firearms mass tort litigation, which possibility receded in the decade after congressional enactment of PLCCA. Evaluated in the context of well-known hallmarks of developing mass tort litigation, a firearms mass tort remains in a very nascent stage in the life cycle of mass tort litigation. It remains to be seen whether litigation against the gun industry will gain renewed traction as a consequence of the Connecticut Remington Arms litigation.
Friday, April 9, 2021
Shannon Costa and I have posted to SSRN Incorporating an Actual Malice Exception to Section 230 of the Communications Decency Act. The essay is from Southwestern's "New Frontiers in Torts: The Challenges of Science, Technology, and Innovation" symposium last February. The abstract provides:
In an initial attempt to shield minors from pornography, Congress enacted the Communications Decency Act (CDA) of 1996. An amendment to the CDA, codified as section 230, originally was designed to encourage web-related defendants to self-regulate by shielding “Good Samaritan” websites from liability. Courts have interpreted the section broadly, creating almost complete civil immunity for interactive computer services (ICS) for the statements of their users—regardless of whether they would have been “publishers or distributors” at common law. Despite the good intentions behind section 230, the broad immunity that it has provided ICSs ultimately prevents holding ICSs accountable for their wrongful behavior: not only defamation, but also conduct such as malicious catfishing.
For at least fifteen years, commentators have proposed amending section 230, but, other than one limited exception, Congress has yet to take action. Recent political attention to section 230, however, provides an opportunity for reform, and this essay proposes such a reform. Although two reform proposals have received a lot of attention—the repeal of section 230 and a “notice-and-takedown-procedure”—we have concerns about both.
Instead, this essay proposes applying the actual malice standard to torts committed by ICSs in a distributor capacity. Expanding an earlier proposal, we would apply actual malice in all cases against ICSs acting as distributors. Moreover, we would apply the actual malice standard to torts beyond defamation. Thus, if an ICS were engaged in tortious conduct involving knowledge or reckless disregard for the truth, the ICS would be accountable. The actual malice standard holds web-related defendants accountable for egregious harm, while protecting them from overly burdensome liability.
Tuesday, April 6, 2021
Katherine Mims Crocker has posted to SSRN Qualified Immunity, Sovereign Immunity, and Systemic Reform. The abstract provides:
Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s death last summer. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in American law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The present moment offers unique opportunities to explore deeper problems and seek deeper solutions.
This Article argues that we should refocus the conversation by reconsidering other aspects of the constitutional-tort system—especially sovereign immunity for government entities—too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.
This Article recommends an incremental yet systemic reform strategy, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity falls hardest on populations that suffer a disproportional share of constitutional harm, including communities of color for police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses will not wreak havoc on individual or government finances, the judicial system, or substantive rights.
Monday, April 5, 2021
Matthew Wansley has posted to SSRN The End of Accidents. The abstract provides:
In the next decade, humans will increasingly share the roads with autonomous vehicles (AVs). The deployment of AVs has the potential to dramatically reduce the frequency and severity of motor vehicle crashes. Existing liability rules give companies developing AVs insufficient incentives to develop that potential. Data from real-world autonomous driving indicates that today’s most advanced AVs rarely cause crashes, but often fail to avoid preventable crashes caused by other road users’ errors. A growing number of scholars have proposed reforms that would make it easier for plaintiffs injured in crashes with AVs to hold AV companies liable. These reform proposals either ignore the issue of comparative negligence or would preserve some form of the defense. If AV companies avoid liability for crashes in which a human road user was negligent, they will not invest in developing technology that could prevent those crashes. This Article proposes a solution: AV companies should be held responsible for all crashes in which their AVs come into contact with other vehicles, persons, or property—regardless of fault, cause, or comparative negligence. Contact responsibility would cause AV companies to internalize the costs of all preventable crashes and lead them to make all cost-justified investments in developing safer technology. Crashes would no longer be treated as regrettable but inevitable accidents, but as engineering problems to be solved.
Thursday, April 1, 2021
Nora Engstrom & Bob Rabin have posted to SSRN Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids. The abstract provides:
Over the past half-century, product-related public health crises have claimed millions of American lives. Two of these crises have been especially prominent: tobacco and opioids. In this Article, we zero in on both controversies. Like many before us, we trace how these two addictive and deadly products became widely used by the American public and analyze the myriad ways in which the products—cigarettes and prescription painkillers—are similar. From there, however, we part ways with previous analyses, as we look beyond these surface similarities to the many ways tobacco and opioids are markedly different from one another. This analysis of differences—focusing on the products’ substitutability, social utility, and price sensitivity—ultimately underscores the crushing, and easily underestimated, challenges policymakers face, to the extent they try to curb the opioid epidemic using tried-and-true supply-side mechanisms. We then turn from the crises themselves to the litigation each has generated. From a distance of two decades, we tally the successes and failures of tobacco litigation—which began in the 1950s and crested in the late 1990s—and analyze how that mixed scorecard has informed, and, going forward, ought to inform, the sprawling opioid litigation: the most complex civil action ever tackled by any American court. Finally, moving beyond this comparative analysis, we address both the future and the utility of public health litigation. Many have asked: What is the role of litigation when it comes to promoting public welfare? Harnessing lessons from both tobacco and opioids, our answer to that question offers new insights for how tort litigation complements—and, under certain conditions, can catalyze—broader regulatory strategies.
Tuesday, March 30, 2021
On Monday, Florida became the most populous state to enact COVID-19 immunity. The law is similar to those passed in other states. Among other entities, it covers corporations, hospitals, nursing homes, government entities, schools and churches. There is an exception for gross negligence or intentional conduct. Law 360 has the story.
Monday, March 29, 2021
Last week, the New York City Council enacted legislation eliminating qualified immunity as a defense for city police officers when sued under the new local statute. Qualified immunity remains a defense if an officer is sued under federal or state statutes. CBS News has the story.
Tuesday, March 23, 2021
We are writing as the Secretary and Treasurer of the
AALS Torts & Compensation Systems section to pass along two important
*1. Torts and Compensation Systems Section Newsletter*
As most of you know, our section publishes a newsletter each fall listing:
(1) symposia related to tort law; (2) recent law review articles on tort
law; (3) selected articles from Commonwealth countries on tort law; and (4)
books relating to tort law. If you know of any works that should be
included in this year's newsletter, please forward relevant citations and
other information to email@example.com. The deadline for
inclusion in this fall's newsletter is Friday, August 20, 2021.
*2. 2022 William L. Prosser Award*
This is the first call for nominations for the 2022 William L. Prosser
Award. The award recognizes “outstanding contributions of law teachers in
scholarship, teaching and service” in torts and compensation systems.
Recent recipients include Jack Weinstein, Anita Bernstein, Ken Simons,
Marshall Shapo, Steve Sugarman, Aaron Twerski, Mike Green, James Henderson,
Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray,
and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex
Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the
award. Nominators can renew past nominations by resubmitting materials.
Living tort scholars and those who have passed away within the last five
years are eligible for the award. Selection of the recipient will be made
by members of the Executive Committee of the Torts & Compensation Systems
section, based on the recommendation of a special selection committee. The
award will be presented at the annual AALS meeting in Washington, D.C. in
Nominations must be accompanied by a brief supporting statement and should
be submitted no later than Friday, July 16, 2021. Please email submissions
to Elizabeth Weeks, firstname.lastname@example.org.
Nora Freeman Engstrom & Elizabeth Weeks