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)
Wednesday, October 23, 2019
Anita Bernstein has posted to SSRN The Reciprocal of MacPherson. The abstract provides:
MacPherson v. Buick Motor Company won fame for taking down a privity barrier that stood between consumers and manufacturers of products that cause injury. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. In this relation of mutually constituted security and danger, privity and MacPherson are each the other’s reciprocal. This article, written to celebrate the centenary of a great decision, explores the reciprocity path that MacPherson helped to build by considering instances of law-mandated care and vigilance that came after it. Broadly worded obligations as provisioned in MacPherson function to support, or at least are consistent with, entitlements and shelters that business entities now receive from American consumers.
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.