Tuesday, January 10, 2023
Wednesday, November 16, 2022
At the AALS Annual Meeting, the Torts & Compensation Systems Section has two events on Thursday, January 5th. From noon until 1:00 is the awards ceremony at which the Prosser Award is bestowed upon John Goldberg and Ben Zipursky. From 3:00 until 4:40 is the Section meeting. The panel is entitled "Opioid Litigation: The Good, the Bad, and the Ugly." Speakers include Elizabeth Cabraser, Nora Engstrom, Charles Lifland, Linda Mullenix, Jennifer Oliva, and Lindsey Simon. Tim Lytton will serve as moderator. The blurb provides:
The nationwide wave of lawsuits against opioid manufacturers, distributors, and retailers is, arguably, the most significant litigation phenomenon of the 21st century. Opioid litigation includes many features that are now familiar to observers of mass torts: multi-district class-action litigation, government-entity plaintiffs, corporate bankruptcy, and eye-popping settlements. This session will offer a brief analysis of the current state of opioid litigation. Panelists and session attendees will then share their views on the success of this litigation as a response to the opioid crisis and discuss general lessons to be learned for the future.
Today is the last day for early-bird registration.
Thursday, October 27, 2022
The Museum is having a virtual event for Tort Law Day 2022 on Saturday, October 29 at 1:00 Eastern. Register here.
1:00 pm ET - Tort Law An Instrument of Social Justice
Founding Partner, Kline & Specter
1:30 pm ET - The Importance of Protecting and Advancing Tort Law
Founder and Executive Director of the Center for Justice & Democracy
2:00 pm ET- Understanding and Safeguarding the Trial By Jury
Charles F. Rechlin Professor of Law, Cornell Law School
2:30 pm ET- Seeking Justice for Injured Plaintiffs
Partner, Kafoury & McDougal
3:00 pm ET- Educating The Public About the Role of Tort Law in our Democracy
Consumer Advocate & President of the American Museum of Tort Law
Friday, October 21, 2022
From April 13 to April 14, 2023, the Institute for European Tort Law (ETL) and the European Centre of Tort and Insurance Law (ECTIL) will host the 22nd Annual Conference on European Tort Law in Vienna. The Conference will highlight the main developments in tort law in Europe in 2022 and allow discussion of their implications.
For further information and registration, contact:
European Centre of Tort and Insurance Law (ECTIL) Institute for European Tort Law (ETL)
Reichsratsstrasse 17/2, A-1010 Vienna, Austria Reichsratsstrasse 17/2, A-1010 Vienna, Austria
Tel. (0043 1) 4277 29650 Tel. (0043 1) 4277 29651
The flyer is here: Download Announcement ACET 2023 (eng) 21.10.22
Monday, September 19, 2022
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.
Thursday, August 18, 2022
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.
Wednesday, July 6, 2022
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
Wednesday, June 29, 2022
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.
Tuesday, May 17, 2022
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.
Wednesday, April 13, 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.
Wednesday, February 16, 2022
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:
Friday, January 7, 2022
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.
Thursday, December 30, 2021
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."
Friday, November 5, 2021
Tuesday, November 2, 2021
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
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