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
Tuesday, October 2, 2018
In February, Fordham Law School held a symposium titled “Civil Litigation Reform in the Trump Era: Threats and Opportunities.” The articles are now available:
· “Searching for Salvageable Ideas in FICALA” [Fairness in Class Action Litigation Act of 2017] by Fordham Prof. Howard Erichson
· “Jurisdiction in the Trump Era” by UC Hastings Prof. Scott Dodson.
· “Rights and Retrenchment in the Trump Era” by U. Penn. Prof. Stephen Burbank and UC Berkeley Prof. Sean Farhang
· “The Looming Battle for Control of Multidistrict Litigation in Historical Perspective” by UC Berkeley Prof. Andrew Bradt
· “What We Don’t Know About Class Actions but Hope to Know Soon” by U. Penn. Prof. Jonah Gelbach and Stanford Prof. Deborah Hensler
· “Asbestos Trust Transparency” by Mark Behrens
Wednesday, September 12, 2018
Martha Chamallas has posted to SSRN Will Tort Law Have its #MeToo Moment?. Presented at AALS in January and forthcoming in the Journal of Tort Law, the abstract provides:
Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.
Wednesday, May 23, 2018
The ALI's 95th Annual Meeting concludes today, but the torts and torts-related projects are finished. Two of the projects are truly complete. The membership approved a Proposed Final Draft of the Economic Harm project (Ward Farnsworth, Reporter) and the Law of Liability Insurance project (Tom Baker and Kyle Logue, Reporters). Several additional sections of the Intentional Torts project (Ken Simons and Jonathan Cardi, Reporters) were also approved.
Monday, April 9, 2018
Ben Zipursky has posted to SSRN his Monsanto Lecture Online Defamation, Legal Concepts, and the Good Samaritan. The abstract provides:
Federal and state courts around the country – aided by academics on almost all sides – have completely misread the Communications Decency Act [“CDA”] § 230(c). This widely cited provision was designed to protect Internet service providers and certain Internet users from liability for the defamatory statements posted by others online. Congress did not want these actors to face a defamation-law equivalent of a duty to rescue strangers -- an affirmative duty to remove third parties’ defamatory statements about others. And it certainly did not want a service provider’s efforts to protect a stranger’s reputation to backfire by suddenly creating liability for everything the service provider failed to remove. So, like every state legislature has done for off-duty medical personnel who act as good Samaritans, Congress in 1996 created a law saying that good faith efforts to filter offensive or defamatory material do not create an affirmative duty to remove such material and do not open them up to liability. For good measure, the statute also laid down a basic rule that there is no liability simply for being the conduit of what others have posted or for failing to remove such postings from one’s own site, and it preempts any state law that does otherwise. The CDA thus ensures that states’ defamation law runs roughly parallel to duty-to-rescue doctrine in the common law of negligence as amended by good Samaritan statutes. Indeed, that is why “Good Samaritan” is in the title of CDA § 230(c).
Under the sway of a talented First Amendment bar and in an academic culture hostile to common law concepts, judges around the country have selected an entirely different and misguided interpretation of § 230(c). They read the statute as, in effect, an abrogation of libel law’s classic republication rule, which states that a person who republishes a defamatory statement is liable as if she were the one who first said it. According to the overwhelmingly dominant interpretation of courts today, once someone says something defamatory, anyone who reposts it enjoys complete immunity from all state and federal law, even if the republisher knows the statement to be false and defamatory. Those academics who have rejected this interpretation tend to swing to the other extreme, advocating that website owners who have notice of a defamatory posting should be liable for failure to remove it. This too misses the point of the statute’s text. Through a detailed examination of libel doctrine and a close analysis of the case (Stratton Oakmont v. Prodigy) that generated the development of a protective federal statute, the article displays the correct reading of the statute and the importance of retaining a robust version of the republication rule online.