TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

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 Lawfalethia.hawthorne@slu.edu 

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

Thursday, August 18, 2022

Abraham & White on the Nature of the Judicial Process

Ken Abraham & Ted White have posted to SSRN Doctrinal Forks in the Road:  The Hidden Message of The Nature of the Judicial Process.  The abstract provides:

This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921. Revisiting these lectures presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal 'path', or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.

We then show how Cardozo employed the concepts of doctrinal paths and 'forks in the road' in several of his most famous torts cases. We conclude that when Cardozo’s discussion of those concepts is understood as one of the principal contributions of The Nature of the Judicial Process, the lectures can be understood to be of lasting as well as historical significance.

August 18, 2022 in Conferences, Scholarship | Permalink | Comments (0)

Wednesday, July 6, 2022

Causation Conference at the University of Western Australia

On September 9, 2022, the University of Western Australia is having hosting "Causation Conference."  The overview:

Causation is one of the basic pillars of the law. Yet its nature, operation and relationship to other
foundational concepts remains uncertain and contested, across virtually every field of civil and
criminal law. This conference brings together a remarkable group of expert contributors to UWA
Law Reviews’ 2022 special issue on causation, to debate, elucidate and resolve some of the law’s most
pressing, and persistent, causal challenges. Speakers will bring their authoritative insights to bear
upon the spectrum of private, commercial and criminal law doctrines in which causation plays a
leading role, arising at common law, in equity and under statute

The brochure is here:  Download Causation Conference Program 2022

July 6, 2022 in Conferences | Permalink | Comments (0)

Wednesday, June 29, 2022

Wendel on Punitive Damages for Corporate Wrongdoing

Bradley Wendel has posted to SSRN Malice or Snafu?  Punitive Damages and Organizational Culture Defects.  The abstract provides:

This paper was written for the annual Clifford Symposium on Tort Law and Policy at DePaul Law School. The theme for this year is tort law as a response to corporate wrongdoing. The paper was part of a panel on the Boeing 737-MAX disasters.

In engineering or risk-management (not tort) terms, the root cause of the Lion Air and Ethiopian Airlines crashes involving 737-MAX aircraft can be understood as a failure of Boeing’s organizational culture. A certain narrative has become accepted as conventional wisdom, described in journalistic accounts, reports of House and Senate investigative committees, and the Netflix documentary Downfall. For the purposes of this paper, let’s stipulate to the story: Boeing enjoyed a well-deserved decades-long reputation as a solid, engineering-driven company in which safety concerns were always paramount. Then came the merger with McDonnell-Douglas in 1996 which led to the adoption of an organizational culture that prioritized maximizing stock prices and shareholder value, subordinated engineering values to cost-cutting concerns, and reoriented internal reporting relationships to place bean-counting MBAs in charge of teams of engineers. Then the company was confronted by a market shock when Airbus introduced a fuel-efficient variant on its popular A320 narrowbody jetliner, risking a further loss of market share to Boeing’s European rival. Rather than develop a clean-sheet design to compete with the A320neo, Boeing hastily updated its venerable 737 airframe by adding new fuel-efficient engines. In order to attract customers who had an existing fleet of 737NG aircraft, Boeing committed itself to a goal of a redesign that would not require extensive additional training for flight crews. Thus, when a relatively minor aerodynamic issue – one that would not arise during normal airline operations – was discovered during flight testing, Boeing adopted a software fix known as MCAS for the purpose of certifying the design. However, it decided not to disclose the operation of the system in the Flight Operation Manual for the aircraft, for fear that the FAA would require simulator training for pilots transitioning from the 737NG to the MAX. The MCAS system proved to have significant design defects (in products liability terms), and these defects were the proximate cause of the Lion Air and Ethiopian Airlines accidents.

The dynamics of organizational cultural failures are by now fairly well understood. In some cases the failure is the result of top-down directives from senior leadership, sometimes driven by market pressures. Other situations, however, are more subtle, and sometimes are the result of the unintended consequences of either neutral or well-intentioned organizational decisions. There is a folklore version of the Challenger launch story, in which an engineer for Thiokol, one of the contracting firms, heroically tried to prevent the launch, but was shot down by managers at NASA and Thiokol, one of whom notoriously told the engineers to take off their engineering hat and put on their management hat. In fact the story is quite a bit more complicated, involving subtle psychological factors at work at the level of both individual and collective decisionmaking. As detailed in a report by Jenner and Block commissioned by company’s board of directors, the GM ignition switch response is almost entirely a story of dysfunctions in the company’s organizational culture that were the result of well-intended procedures and reporting structures that had the unintended effect of diffusing responsibility so thoroughly within the organization that no one really had any ability to respond effectively.

In my judgment Boeing is an intermediate case between GM, which I would characterize as a true SNAFU (emphasis on “situation normal” in a gigantic, decentralized organization), and the conscious imposition by upper management of unrealistic goals that foreseeably would reorient lower-level managers and employees away from goals like safety and social responsibility. Even granting the truth of some of the most damning allegations, such as reports by flight-test crews that MCAS behaved in surprisingly aggressive ways and calls by some engineers to include information about MCAS in the FAA-approved Flight Operation Manual for the plane, the ultimately fatal decisions did not arise from a state of mind that traded lives for dollars or ignored safety concerns. Rather, there were mistakes, miscommunications, perhaps excessive optimism (e.g. that flight crews would handle an inadvertent MCAS firing as an ordinary trim runaway), failures to be more proactive in managing risks, and above all a kind of blinkered obsession with not having to retrain flight crews which may have led to unconscious framing of some of the judgments regarding MCAS. In order words, the explanation is more in line with the findings of behavioral psychology, beginning with Kahneman and Tversky, than with an assumption that Boeing was a rogue actor that was consciously indifferent to safety. The damage is real – both the lives lost and the financial and reputational losses to the company. However, the underlying explanation bears more similarities to the Challenger launch decision or the GM ignition switch recall than to cases like Enron or Wells Fargo.

In doctrinal terms, the argument of this paper is that Boeing’s conduct, in the conventional wisdom story recounted above, does not rise to the level of malice, as required by the common law of punitive damages, or the reprehensibility required by the constitutional test from Gore and Campbell. The theoretical argument is that most defects in organizational cultures, although capable of producing serious harms, are not private wrongs that can justify the imposition of punitive damages in tort. They are governance failures or occasions for regulation, but not private wrongs. Obviously the second argument takes a position on a much-debated issue, so I will address briefly the New Private Law approach, with which I have some sympathy.

The company definitely screwed up and squandered a reputation earned, at least since World War II, for being a pilot’s and engineer’s kind of company. The conclusions of the paper should have implications beyond the case study of Boeing, however. To me at least, the most interesting question is how to understand the common law malice standard as applied to corporate actors where the explanation for wrongdoing rests largely on subtle effects known to social psychologists but very difficult to counteract. Good organizational cultures are extremely difficult to maintain, given the often-unconscious tendencies that underlie cultural declines. NASA and Thiokol weren’t bad actors in the Challenger case; they were pretty good organizations full of conscientious engineers and managers who just happened to get caught by some very sneaky psychological effects. Most failures of organizational cultures do not count as reprehensible private wrongs, however devastating the consequences of these failures.

June 29, 2022 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, May 17, 2022

Torts at the ALI Annual Meeting

Tomorrow (5/18) is torts day at the ALI's Annual Meeting.  Concluding Provisions (Nora Freeman Engstrom and Mike Green, Reporters) is discussed from 3-4:30 Eastern.  Remedies (Richard Hasen and Doug Laycock, Reporters) is discussed from 4:30-6 Eastern.  I believe this is the first time two Torts Restatements have been discussed at the same Annual Meeting.  

May 17, 2022 in Conferences | Permalink | Comments (0)

Wednesday, April 13, 2022

The Immortal Snail 90 Anniversary Conference 26 May 2022

The Law Society of Scotland is organising a conference to celebrate the 90th anniversary of the decision in Donoghue v Stevenson on 26 May this year. Here is the link to the conference page on the Law Society website: Donoghue v Stevenson 90th Anniversary Conference | The Immortal Snail | Law Society of Scotland (lawscot.org.uk).

This global, virtual conference is engaging with judiciary, practitioners and academics in those jurisdictions for which the case is significant. We have tried to bring together a global community connected by the impact which Donoghue v Stevenson has upon their legal systems. This is a unique opportunity for the Common Law community to come together to examine, possibly to celebrate, this case. Jurisdictions participating include Australia, New Zealand, Zimbabwe, Nigeria, South Africa, India, Northern Ireland, Scotland, England and Wales, Ireland, the Caribbean, Canada, Singapore and the US.

April 13, 2022 in Conferences | Permalink | Comments (0)

Wednesday, February 16, 2022

21st Annual Conference on European Tort Law

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 21st Annual Conference on European Tort Law (ACET), which will be held in digital format from 21 to 22 April 2022.

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 2021. A Special Session is dedicated to the topic of ‘Competition Law, Data Protection and Liability – Where is EU Tort Law Heading?’. 

Participation via online livestream is free of charge.

Please find the Conference folder attached.  Registration is open now and can be accessed on our website:

https://www.oeaw.ac.at/etl/events/annual-conference-acet

Download ACET_Invitation_final

February 16, 2022 in Conferences | Permalink | Comments (0)

Friday, January 7, 2022

Happening Today: AALS Torts Section Networking Session and Panel

At 2:00 Eastern, the Section is hosting a Networking Session that features remarks by 2022 Prosser Award honoree Martha Chamallas.

At 3:10 Eastern, the Section and the Natural Resources and Energy Law Section team up to host a panel on "The Rising Tide of Climate Torts."

You can gain access at the AALS Annual Meeting site; you must be registered.

January 7, 2022 in Conferences | Permalink | Comments (0)

Thursday, December 30, 2021

AALS Torts Section Annual Meeting Events

On Friday, January 7, the Torts Section has two events at the Annual Meeting.  From 2:00-3:00 Eastern, there is a Section Networking Session.  Martha Chamallas, winner of the 2022 Prosser Award, will make remarks.  From 3:10-6:00 Eastern, the Section will team up with the Natural Resources and Energy Law Section for a program on "The Rising Tide of Climate Torts."

December 30, 2021 in Conferences | Permalink | Comments (0)

Friday, November 5, 2021

Michigan Junior Scholars Conference

The University of Michigan Law School invites junior scholars to attend the 8th Annual Junior Scholars Conference, which will take place in-person on April 22-23, 2022 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.
 
For more information:  Download CFP Michigan Law School 2022 Junior Scholars Conference  Applications are due by January 10, 2022.

November 5, 2021 in Conferences | Permalink | Comments (0)

Tuesday, November 2, 2021

GMU Law & Economics Center Workshop on Energy & Environment

The Law & Economics Center has an upcoming Workshop for Law Professors on Energy & Environment, to be held in Squaw Valley, CA on January 5-9, 2022.  Details are available here:  Download Workshop on Energy and Environment Announcement

November 2, 2021 in Conferences | Permalink | Comments (0)

Tuesday, May 18, 2021

R3: Intentional Torts to Persons Approved by ALI Membership

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.

May 18, 2021 in Conferences, Scholarship | Permalink | Comments (0)

Wednesday, May 12, 2021

Goldberg on Gardner on Personal Life and Private Law

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.

 

May 12, 2021 in Conferences, Scholarship, TortsProfs | Permalink | Comments (0)

Monday, May 10, 2021

Genomic Analysis in Tort Cases

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. 

May 10, 2021 in Conferences | Permalink | Comments (0)

Friday, April 30, 2021

Rabin on Sugarman

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.

April 30, 2021 in Conferences, Scholarship, TortsProfs | Permalink | Comments (0)

Tuesday, April 27, 2021

A Celebration in Honor of Steve Sugarman

Sugarman

April 27, 2021 in Conferences, TortsProfs | Permalink | Comments (0)

Wednesday, April 14, 2021

Mullenix on Reviving a Mass Tort Litigation for Guns

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.

April 14, 2021 in Conferences, Scholarship | Permalink | Comments (0)

Friday, April 9, 2021

Robinette & Costa on Section 230

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.

April 9, 2021 in Conferences, Scholarship | Permalink | Comments (0)

Thursday, February 18, 2021

20th Annual Conference on European Tort Law

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!

February 18, 2021 in Conferences | Permalink | Comments (0)

Tuesday, February 9, 2021

GMU Law & Econ Center: "The Economics and Law of Civil Remedies"

Friday, February 19, 2021 from 10:00-3:00; virtually.  The agenda is here.  You can register here.

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.

February 9, 2021 in Conferences | Permalink | Comments (0)