Tuesday, May 18, 2021
Today at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts: Intentional Torts to Persons. Reporters Ken Simons and Jonathan Cardi shepherded the project to completion; Ellen Pryor served as a Reporter from 2014-2015. The ALI's press release is here.
Wednesday, May 12, 2021
John Goldberg has posted to SSRN Taking Responsibility Personally: On John Gardner's From Personal Life to Private Law. He presented at the AALS Torts panel in January and the piece is forthcoming in the Journal of Tort Law. The abstract provides:
This essay, written for a panel honoring the late John Gardner, explores a tension in his book’s highly engaging and illuminating account of the relationship between “personal life” and “private law.” For the most part, the book sets out to explain how private law’s doctrines help us to act as we ought to act by reproducing, with greater specificity, the rules and norms of morality. At crucial moments, however, it suggests that private law serves its function by departing dramatically from morality. In particular, it argues that private law’s conferral of broad discretion on victims of legal wrongs to decide whether and how to pursue claims against wrongdoers has no moral counterpart. I suggest, to the contrary, that personal life does contain analogues to private law’s powers and liabilities. I further maintain that Gardner’s reluctance to recognize them reflects a problematic understanding of interpersonal responsibility as monadic answerability to reason rather than dyadic answerability to another.
Monday, May 10, 2021
Kirk Hartley, Susan Brice, and Mark Zellmer are hosting a virtual conference, "Genomic Analysis in Tort Cases." The conference runs most of the day on Wednesday, May 26, is free, and you can register here: https://www.eventbrite.com/e/genomic-analysis-in-tort-cases-virtual-tickets-152523216045. An agenda is available here: Download Perrin Conferences_Genomics Analysis Final_04 (1) The gist is below:
- Panel 1 will address the use of genomics in product liability and/or premises cases involving exposures to toxicants, including asbestos, benzene and radiation.
- Panel 2 will address cases involving issues such as birth defects, medical malpractice and individual variability in the metabolism of drugs and chemicals.
- Panel 3 will explain the big picture of the processes and methods involved in using genomic analysis in actual cases.
- Panel 4 will present example of "environmental cases" in which genomic analyses have been used to provide objective evidence to trace sources of exposure and dispersal, and will briefly touch on uses of genomic analyses for cancer cluster cases.
- Panel 5 will focus on communicating genomic issues to juries and judges; among other things, jury consulting experts will provide some thoughts on communicating the messages.
- Panel 6 will focus on use of genomics in "high value" settings, including a further focus on cancer cluster cases and medical monitoring cases, with some discussion of some of the draft statutes that are pending regarding PFAS and other chemicals.
- An extended Q & A session will close out the day.
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.
Tuesday, April 27, 2021
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.
Thursday, February 18, 2021
The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to attend the 20th Annual Conference on European Tort Law (ACET), which will be held in digital format from 8 to 9 April 2021.
The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe in 2020. A Special Session is dedicated to the topic of ‘Duty to Prevent Harm’.
Participation via online livestream is free of charge.
The flyer is here: Download 20thACET_Invitation_Folder
Registration is open now and can be accessed on our website: https://www.oeaw.ac.at/etl/events/annual-conference-acet
If you have never attended this conference, which is fantastic, this is a great opportunity to do so!
Tuesday, February 9, 2021
Blackstone quite famously explained that “[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.” 3 William Blackstone, Commentaries on the Laws of England 23, 109 (Univ. of Chicago Press 2002) (1765). Of course, it has long been understood that this concept of ubi jus ibi remedium, and the choice of remedies that flow from it, should be shaped and applied against the backdrop of foundational Rule of Law principles and applying sound economic reasoning. After all, as Tobin v. Grossman opined, “While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.” Tobin v. Grossman, 249 N.E.2d 419, 424 (N.Y. 1969). And, to borrow a lesson from outside the law, Pubilius Syrus’s Maxim 301 reminds us that “There are some remedies worse than the disease.”
As the legal system works to develop a system of remedies that recognizes all of those sentiments, the Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions seeks to help by presenting four panels that explore a few critical remedies-related topics facing lawyers, litigants, judges, state attorneys general, state and federal government administrators, federal and state legislators, and others. Diverse perspectives from leading experts will be featured on each panel—discussing nationwide injunctions, punitive damages, high damage awards and their causes and consequences, methods of calculating damages including recent controversies over medical finance and phantom damages, and proposed and enacted legislative interventions in each of these categories.
Tuesday, January 12, 2021
I have posted to SSRN Scholars of Tort Law: Professor William Lloyd Prosser (1898-1972). The abstract provides:
This chapter, presented at Oxford at the “Scholars of Tort Law” conference, is concerned with William Prosser, the most important U.S. tort scholar of the twentieth century. Prosser exerted considerable influence on the development of several specific tort doctrines, notably strict products liability, privacy, and intentional infliction of emotional distress. Instead of his well-known contributions to these discrete torts, this chapter focuses more broadly on Prosser’s overall effects, particularly regarding the paramount tort of negligence. Prosser attempted to adjust negligence to two Realist challenges: Realists’ belief in the public nature of seemingly private disputes and the undermining of certainty caused by emphasising the facts of each case. To the first challenge, Prosser reconceptualised the elements of negligence as involving public policy choices. To the second, Prosser attempted to present a negligence formula that was both flexible and predictable. Prosser succeeded in presenting a more flexible negligence formula incorporating public policy factors, but failed in enhancing predictability, with far-reaching consequences for tort law as a compensatory mechanism.
Tuesday, December 29, 2020
Donal Nolan has posted to SSRN Scholars of Tort Law: Professor Sir Percy Winfield (1878-1953). The piece comes from a conference at Oxford in 2018 and published as a book last year; the abstract provides:
This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.
Monday, November 30, 2020
George Mason Scalia Law School's Law & Economics Center (LEC), led by Donald Kochan, just hosted (virtually) "Civil Justice Fest." A number of topics are likely of interest to readers of the blog, and I provide links below.
Tuesday, November 3, 2020
The University of Michigan Law School invites junior scholars to attend the 7th Annual Junior Scholars Conference, which will take place virtually on April 16-17, 2021. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Michigan Law journals have also agreed to give serious consideration to publish selected papers. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed. More information here: Download Cfp Michigan Law School 2021 Junior Scholars Conference
Applications are due by January 4, 2021.
Monday, July 20, 2020
Oxford University Press is pleased to announce a call for papers for volume two of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers).
Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory. The series publishes exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general. Submissions should be approximately 12,000 words, inclusive of footnotes. The deadline for submission is March 1, 2021.
Circumstances permitting, all accepted papers will be presented at a workshop at the National University of Singapore on August 6-7 2021. The National University of Singapore and the Rutgers Institute for Law and Philosophy will cover the expense of contributors’ travel and accommodation.
Please send submissions to both Paul Miller (paul dot miller at nd dot edu) and John Oberdiek (oberdiek at rutgers dot edu).
Tuesday, January 28, 2020
The Journal of Commonwealth Law, in cooperation with the Faculties of Law at the Université de Montréal and the University of Cape Town, will host a symposium devoted to exploring the issues inherent in Indigenous private law. We call for papers specifically on Indigenous Private law issues. What norms govern matters relating to Property, Persons and Family, or Succession for example? Beyond that, is there an Indigenous law of Contracts or Torts, or a law relating to (commercial) associations? We invite perspectives from around the Commonwealth and are open to different theoretical frames of reference or methodologies of inquiry. We are also open to papers which discuss how State laws relate to Indigenous private law issues, or the regulation of the Indigenous economy.
The conference will be held at the Université de Montréal on May 8, 2020, and the papers will be published in the Journal of Commonwealth Law, a peer-reviewed journal devoted to exploring legal issues from a multi-jurisdictional perspective. We seek contributions from both established and new scholars from around the Commonwealth, Ireland and the United States.
For more details: Download CFP Indigenous Private Law Conference
Thursday, January 23, 2020
The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles. The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish. The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion. Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms. In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others. The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus. The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts. Registration for the symposium is available now.
Speakers and moderators at the symposium will include the following:
- Ronald Aronovsky, Professor of Law, Southwestern Law School;
- Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
- John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
- Alan Calnan, Professor of Law, Southwestern Law School;
- Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
- James Fischer, Professor of Law, Southwestern Law School;
- Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
- Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
- Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
- Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
- Francis McGovern, Professor of Law, Duke Law School;
- Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
- Brian Panish, Founding Partner, Panish, Shea & Boyle;
- R. Rex Parris, Founding Partner, Parris Law Firm;
- Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
- Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
- Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
- Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
- Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
- Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
- Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
- Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
- Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.
Cross-posted from Mass Tort Litigation Blog.
Wednesday, January 22, 2020
The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to the 19th Annual Conference on European Tort Law, which will be held in Vienna from April 16 to 18, 2020.
The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe. A Special Session on Saturday morning is dedicated to the increasingly relevant topic of ‘Liability for Digital Technologies’.
The flyer is here: Download ACET2020_Folder_Email
Friday, November 29, 2019
The University of Michigan Law School invites junior scholars to attend the 6th Annual Junior Scholars Conference, which will be held on April 17-18, 2020, in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.
Applications are due by January 3, 2020.
Further information can be found at the Conference website: https://www.law.umich.edu/events/junior-scholars-conference/Pages/2020conference.aspx
Tuesday, November 26, 2019
Thursday, October 24, 2019
From April 16 to April 18, 2020, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL) will host the 19th Annual Conference on European Tort Law in Vienna. The Conference will highlight the main developments in tort law in Europe in 2019 and allow discussion of their implications.
On Thursday evening (April 16, 2020), the Conference will begin with an opening lecture by Michael Faure (Maastricht European Institute for Transnational Legal Research, Maastricht University), followed by a reception at the Austrian Supreme Court (Palace of Justice). On Friday (April 17, 2020), scholars from most EU Member States, plus Norway and Switzerland, will report on the latest developments in the field of tort law in their respective jurisdictions. A brief comparative overview of the principal themes to emerge and a presentation of developments at European Union level will also be provided.
The Conference will continue on Saturday morning (April 18, 2020) with a special session on ‘Liability for Digital Technologies’. In this special session, chaired by Bernhard A. Koch (Innsbruck), the panelists will discuss the risks of emerging digital technologies such as artificial intelligence, robotics, or the Internet of Things. Speakers will examine whether existing liability regimes are suitable to cope with the specific challenges posed by such new technologies, to what extent adjustments are necessary, or whether entirely novel solutions are needed. Recent developments on the EU level will be addressed in particular, including the recently published outcomes of the Expert Group on Liability for New Technologies.
Revised and expanded reports on developments in each jurisdiction will be published in the Yearbook ‘European Tort Law 2019’. Revised versions of the lectures from the Saturday morning session will be published as a special issue of the Journal of European Tort Law.
For more information: Download Announcement ACET 2020 (eng)