Monday, October 14, 2019
Congratulations to Ewa Baginska, the University of Gdansk, and the European Group on Tort Law for a successful and enjoyable conference on "Civil Liability and New Technologies" last week. Most of the presentations focused on liability for autonomous vehicles (there are relatively recent laws in the UK and Germany) and platforms such as Google, Twitter, and Facebook. Speakers included EGTL members Piotr Machnikowski, Bernhard Koch, Ken Oliphant, Ulrich Magnus, and me, as well as Constantijn Bakker (Amsterdam School of International Business) and Dorota Masniak (Gdansk). Some of the papers will appear in Insurance Review. The program is here: Download Civil liability and new technologies_program
Thursday, September 19, 2019
James Goudkamp and Donal Nolan have posted to SSRN Pioneers, Consolidators and Iconoclasts: The Story of Tort Scholarship, the introduction to Scholars of Tort Law. The abstract provides:
Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.
Thursday, September 12, 2019
James Goudkamp and Donal Nolan have edited (and written for) Scholars of Tort Law, now available from Hart Publishing. A discount is available with this flyer: Download Goudkamp & Nolan The blurb provides:
The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.
And the Table of Contents:
1. Pioneers, Consolidators and Iconoclasts: The Story
of Tort Scholarship ..................................................................................1
James Goudkamp and Donal Nolan
2. Thomas McIntyre Cooley (1824–1898) and Oliver Wendell Holmes
(1841–1935): The Arc of American Tort Theory .....................................43
John CP Goldberg and Benjamin C Zipursky
3. Professor Sir Frederick Pollock (1845–1937): Jurist as Mayfly ..................75
4. Professor Sir John Salmond (1862–1924): An Englishman Abroad ......... 103
5. Professor Francis Hermann Bohlen (1868–1942) ................................... 133
Michael D Green
6. Professor Sir Percy Winfield (1878–1953) ............................................... 165
7. Professor Leon Green (1888–1979): Word Magic and the
Regenerative Power of Law .................................................................. 203
8. Professor William Lloyd Prosser (1898–1972) ........................................ 229
Christopher J Robinette
9. Professor Fleming James Jr (1904–1981) ............................................... 259
10. Professor John G Fleming (1919–1997): ‘A Sense of Fluidity’ ................. 289
11. Professor Patrick Atiyah (1931–2018) .................................................... 309
12. Mr Tony Weir (1936–2011) .................................................................. 337
13. Law, Fact and Process in Common Law Tort Scholarship ..................... 359
Wednesday, August 28, 2019
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 a conference on Fault-based and Strict Liability, which is organized together with the University of Yantai, China, and will be held in Vienna on 18 October, 2019.
FAULT-BASED AND STRICT LIABILITY
The fourth project in the cooperation between ETL, ECTIL and Yantai University (China), addresses the topic ‘Fault-based and Strict Liability’. While it seems safe to say that all European legal systems, as well as the Chinese Tort Liability Law, endorse liability based on fault, they differ in their attitude towards liability in the absence of that foundation. A thorough examination of the relatively cautious use of strict liability found in the Chinese Tort Liability Law and the common law on the one hand, and the prominent support for it in influential Continental European jurisdictions on the other may lead to valuable new perspectives on the viability of commonly-used bases for strict liabilities. The project pays special attention to the use of rules reversing the burden of proving fault in Chinese and European statutes, which are sometimes considered to fall into a grey area between fault-based and strict liability.
At this public conference, contributors will present their most significant findings. The results will be published in English by Jan Sramek Verlag (Vienna) under the title ‘Fault-based and Strict Liability. Chinese and European Perspectives’.
Please find the Conference folder here: Download Yantai2019_ConferenceFolder
For registrations, please contact Lisa Zeiler (email@example.com), preferably before 30 September, 2019.
The conference will be held in English and is free of charge.
Wednesday, July 24, 2019
Mark Geistfeld has posted to SSRN The Law and Economics of Tort Liability for Human Rights Violations in Global Supply Chains. Appearing in a forthcoming issue of the Journal of European Tort Law, the paper is based on a presentation at April's Annual Conference of European Tort Law in Vienna. The abstract provides:
The human rights of foreign workers in global supply chains are routinely violated, yet the problem so far has largely evaded a legal solution. Economic analysis shows why domestic tort liability can partially address this problem. Many consumers in developed countries have a lower willingness-to-pay for products produced by global supply chains that systemically subject foreign workers to egregiously dangerous working conditions in gross violation of their human rights. This attribute of consumer demand provides a basis for subjecting the domestic chain leader to domestic tort liability for the bodily injuries suffered by these foreign workers, including those employed by independent suppliers. Chain leaders, like other product sellers, are obligated to warn about foreseeable safety risks that are not known by consumers and would be material to their decision about whether to purchase or use a product. The tort duty also requires sellers to instruct consumers about the ways in which the purchase or use of the product might foreseeably harm third parties. A domestic seller that is the chain leader of a global supply chain would breach this duty by not warning domestic consumers that the product is produced by foreign workers who are systemically subjected to working conditions that are so unsafe as to amount to a gross violation of their human rights. Because the purchase of the product foreseeably exposes foreign workers to this ongoing risk of physical harm, they are protected by the tort duty and can recover for its breach. Causation can be established by the logic of the breached tort duty. If consumers had been warned that the product is produced in such a systemically unsafe work environment, a substantial number of them would not have purchased it--they would instead have purchased the same product at the higher price necessary to protect the foreign workers from these ongoing safety violations. By distorting consumer demand in this manner, the domestic product seller’s failure to warn domestic consumers of these human rights violations in the global supply chain proximately caused injury to these foreign workers, entitling them to compensation. By remedying these human rights violations, domestic chain leaders would satisfy the reasonable expectations of domestic consumers who have altruistic preferences to rescue foreign workers from extreme dangers within the production process. Tort law cannot redress the full range of human rights violations in global supply chains, but consumer demand provides a sound basis for tort liability that addresses a limited, though important component of the problem.
Monday, July 1, 2019
Nadia Sawicki has posted to SSRN Defining the Known Risk: Context-Sensitivity in Tort Law Defenses. The abstract provides:
The law of negligence is designed to apply uniformly across contexts. Whether dealing with a car accident, medical malpractice, or a slip-and-fall case, tort law consistently asks whether a defendant owed a duty of care to the plaintiff and whether he exercised reasonable care in fulfilling that duty. Tort law defenses, too, are generally understood to be context-neutral. The doctrines of comparative negligence and assumption of risk should not vary depending on the precise circumstances surrounding an injury.
And yet, there is a peculiar inconsistency in how some defenses are applied in cases of medical malpractice as compared to cases outside the health care context. Specifically, reliance on secondary implied assumption of risk seems to require greater knowledge on the part of the plaintiff in malpractice cases than in other contexts. In recreational sport cases, for example, a plaintiff will be denied recovery if he voluntarily encountered a known risk of physical injury – regardless of whether he understood that the risk was the result of a defendant’s negligence. In contrast, in medical malpractice cases, most people’s intuition is that the plaintiff’s recovery should be denied or limited only if he had knowledge of the risk of physical injury as well as the fact that this risk was created by a negligent defendant. There is no clear doctrinal explanation for this distinction.
This article describes this conundrum and poses the question of whether and when such context-specific adjustments might be doctrinally justified. Ultimately, the most likely explanation is grounded in medical exceptionalist claims that the unique nature of health care justifies a more flexible and nuanced application of legal doctrine. While this conclusion may be unsatisfying to some, it presents a valuable opportunity to revisit debates about the supposed context-neutrality of tort law.
Monday, April 29, 2019
Congratulations to Mike Green on his seventeen-year tenure as the U.S. representative to the European Group on Tort Law. Mike took emeritus status last week; he was both respected and loved by members of the Group. His involvement began in 2002, in the intense period prior to the Group's 2005 publication of the Principles of European Tort Law.
Last week, for the first time, I attended the Annual Conference on European Tort Law, sponsored by the European Centre on Tort and Insurance Law and the Austrian Academy of Sciences. For those of you in the U.S. interested in comparative law, I highly recommend it. The conference covers the highlights of the previous year in tort law for over 20 European countries in 8-minute country reports. I was dubious that academics could be restricted to speaking for 8 minutes, but the conference is run like a well-oiled machine. Another wonderful feature of the conference is the atmosphere. Speakers and attendees are serious about the material, and do not hesitate to debate issues. There is, however, a remarkable sense of good will present, evident in the custom of attending Heurigen on Friday night. Heurigen, which translates as something like "first wine," is when the speakers and attendees go to a traditional Austrian restaurant and enjoy dinner, wine, and even singing together. The opening lecture this year was delivered by Mark Lunney, who discussed Australia as an important point of comparative common law. The closing lecture on law and economics was delivered by Mark Geistfeld. Do consider attending next year.
Friday, March 15, 2019
Elizabeth Weeks has posted to SSRN Healthism in Tort Law. The abstract provides:
This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired driver and physician cases, failure to mitigate, intentional infliction of emotional distress, and other tort law rules. It concludes by applying the book's decisional rubric for distinguishing between permissible and impermissible health status differentiation to specific examples from tort law.
She presented this piece at AALS in January, and it is forthcoming in the Journal of Tort Law.
Tuesday, February 26, 2019
The Tenth Biennial Conference on the Law of Obligations will take place at Harvard Law School from July 14-17, 2020. It is co-hosted by Harvard Law School and Melbourne Law School, and will be co-convened by John Goldberg, Andrew Robertson, and Henry Smith. The conference will focus on internalist and externalist views of private law. Anyone wishing to contribute a paper should submit a title and abstract of no more than 500 words by August 15, 2019 to firstname.lastname@example.org. Those proposing papers will be notified by October 1, 2019 if the paper has been accepted. A flyer is here: Download Call for papers
Sunday, February 17, 2019
Duquesne University School of Law is hosting a two-day conference on artificial intelligence on April 26 & 27, 2019. There are a number of great presentations (including one by Dionne Anthon, Anna Hemingway, and Amanda Sholtis of Widener Commonwealth). Details are available here: Download Duquesne AI Conference Announcement
Thursday, February 14, 2019
Wednesday, February 13, 2019
Charles Silver, David Hyman, and Bernard Black have posted to SSRN Fictions and Facts: Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4. The abstract provides:
This article, written for a symposium issue of the Texas Tech Law Review, summarizes our research on the impact of Texas’ 2003 medical malpractice (“med mal”) reform. Our central findings include:
(1) there were no major changes in the frequency of med mal claims, payout per claim, total payouts, defense costs, or jury verdicts that can explain the spike in premiums for med mal liability insurance that occurred in Texas in the years before the 2003 reforms;
(2) Texas’ supply of direct patient care physicians grew steadily, at similar rates, in both the pre- and post-reform periods, despite politician’s claims that physicians fled Texas before reform and flocked back thereafter;
(3) although the damage caps adopted in Texas and other states greatly reduced the volume of malpractice litigation and payouts to patients, neither in Texas nor in other states have damage caps moderated the growth of health care spending;
(4) the savings in liability costs generated by the Texas reforms were shared between physicians and their insurers, with the former paying lower premiums and the latter collecting more premium dollars relative to dollars paid out on claims; and
(5) there is evidence that when liability rules are relaxed, hospital safety records gradually deteriorate.
Monday, January 21, 2019
The European Centre of Tort and Insurance Law and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz will host the 18th Annual Conference on European Tort Law from April 25th through April 27th in Vienna, Austria.
The Annual Conference 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 ‘Human Rights Violations in Global Supply Chains’.
Wednesday, January 16, 2019
Prosser Award winner Ken Simons has posted to SSRN The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives. The abstract provides:
This essay provides an overview of the crime/tort distinction. It first investigates some of the fundamental differences between criminal law and tort law in doctrine and legal structure. It then explores some important similarities and differences in normative perspectives between the two doctrinal fields. This typology should prove analytically useful for examining some of the specific issues at the borderline of crime and torts — such as the proper scope of punitive damage liability and the question whether criminal law as well as tort law should vary legal sanctions simply because of the fortuitous occurrence of harm.
This is a piece he wrote for a symposium here at Widener.
Friday, January 4, 2019
Monday, December 31, 2018
In addition to the traditional Torts Section's panel, there is a Jurisprudence panel entitled "Recognizing Wrongs: Philosophy of Tort Law":
Start Date: 01/05/2019, 10:30 am
End Date: 01/05/2019, 12:00 pm
Room: Grand Salon Section 15
Floor: First Floor
Hotel: Hilton New Orleans Riverside
Sunday, December 30, 2018
Stacey Tovino is concluding her term as Chair of the Torts and Compensation Systems Section. The program is as follows:
Start Date: 01/04/2019, 1:30 pm
End Date: 01/04/2019, 3:15 pm
Room: Grand Salon Section 16
Floor: First Floor
Hotel: Hilton New Orleans Riverside
Sunday, November 11, 2018
Wednesday, October 24, 2018
Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume.
Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory. The series will publish 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 .
All accepted papers will be presented at a workshop at Notre Dame’s Global Gateway campus in London in late summer/early fall 2019. The Notre Dame Program in Private Law will cover the expense of contributors’ travel and accommodation.
To submit a paper for consideration, please email John Oberdiek at oberdiek AT law.rutgers.edu.
Monday, October 22, 2018
Jan Levine and Wes Oliver are planning a conference at Duquesne on April 26 & 27 entitled "Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education." The CFP is here: Download Artificial Intelligence Conference%2c Call for Proposals%2c 10-3.18