TortsProf Blog

Abraham & White on Offensive Battery

Ken Abraham & Ted White have posted to SSRN How an Old Tort Became New:  the Case of Offensive Battery.  The abstract provides:

This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient tort, having been actionable for centuries under the old common law writ of trespass. When the forms of action were abolished in the second half of the nineteenth century, it continued as a civil wrong. Offensive battery was recognized in the first Restatement of Torts in cases involving physical contacts that were “offensive to a reasonable sense of personal dignity.” Although for many decades there were few cases alleging this form of battery, it was also included in the second and third Restatements of Torts. Around 1985, the number of cases alleging offensive battery increased dramatically.

This Article describes how the old tort became a new one. It chronicles the history of offensive battery, breaks down the characteristics of the cases that were reported after 1985, and offers explanations for the transformation of the old tort. Two explanations stand out. First, many of the modern cases involve offensive sexual touching of female plaintiffs. Heightened sensitivity to this wrong and increased receptivity to suits alleging it are, in our view, part of the explanation for the number of increased cases. The other part of the explanation involves the synergy between offensive battery and the other causes of action with which offensive battery was allied in the modern cases. Whether in Title VII, law enforcement use of excessive force, or cases involving other alleged wrongs, the offensive battery claim gained normative weight through its linkage with the larger narrative of wrongful conduct, and the larger narrative gained normative weight through its linkage with offensive battery. In short, the “new” tort of offensive battery typically is employed as just one weapon in an arsenal in which separate causes of action are allied together.

Innsbruck Conference on Medical Liability

The University of Innsbruck and the European Group on Tort Law are holding a conference on Medical Liability in the Digital Age on September 28. 

Programme
10:00 Opening of the conference
            *Bernhard A. Koch (University of Innsbruck):
            Introduction
            *Ewa Bagińska (University of Gdańsk):
             A Call for Risk-based Liability for Adverse Effects of Advance Therapy
             Medicinal Products – Hospital Exemption (ATMP-HE)
             *Ken Oliphant (University of Bristol):
             Liability for Black-Box Medicine: Fault, Risk or Social Solidarity?
12:00 Lunch break
13:00 *Israel Gilead (The Hebrew University of Jerusalem):
            Extending Fault-based Medical Liability by Notions of Enhanced Protection
            of Autonomy and of ‘Evidential Loss’
            *Giovanni Comandé (Scuola Universitaria Superiore Pisa):
            AI and Health Care Related Liability Between Old and New Paradigms
14:45 Coffee break
15:15 *Christopher Robinette (Southwestern Law School):
            A Restatement of the Law of Medical Liability
            Speakers and other members of the European Group on Tort Law:
            Round Table:
            Medical Liability in the Digital Age – Need for Reconsideration?
17:00 End of conference

Times are local.  The event is hybrid and free of charge; please register here: https://www.uibk.ac.at/fz-medizinrecht/fz-medr/medical-liability-in-the-digital-age.html

The flyer is here:  Download Medical Liability in the Digital Age

Green Presents at the University of Chile

Mike Green, Reporter for R3:  Miscellaneous Provisions and Medical Malpractice, will speak at a conference in Chile.  On July 7 and 8, the Private Law Department at the University of Chile is hosting “II International Congress: Re-systematizing Civil Liability - Evolution of Imputation Factor, Causation and Damage,” featuring torts experts from South America, Europe, and the US.  Green will present ‘Concurring Innocent and Tortious Causes: The Third Restatement of Torts Punts.’  The ALI website has coverage here.

Plaintiffs and Attorneys in MDLs

A year ago, the Deborah L. Rhode Center on the Legal Profession at Stanford convened a conference on MDLs.  Nora Freeman Engstrom, Todd Venook, David Freeman Engstrom, and Silvie Saltzman have now published a report on the conference.  The key point was that the attorney-client relationship in MDLs merits close inspection.  Conference participants differed on the nature and extent of the underlying challenges.

Hylton on Tort Theory in the Restatement

Keith Hylton has posted to SSRN Tort Theory and the Restatement, in Retrospect, a paper he delivered at Southwestern as part of the Concluding the Restatement (Third) of Torts symposium.  The abstract provides:

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project.

ALI Announces Symposium on Concluding the Restatement (Third) of Torts

ALI coverage of Southwestern's symposium is here.

Obligations X Conference: Private Law and the State

The Tenth Biennial Conference on the Law of Obligations will be hosted by Western Law and held at the Banff Centre for Arts and Creativity in Alberta, Canada from 11–14 July 2023. The conference will be co-convened by Professors Jason Neyers, Andrew Robertson, Zoë Sinel, and Joanna Langille. The biennial Obligations Conference brings together legal scholars, judges, and practitioners from throughout the common law world to discuss current issues in private law theory and doctrine. The conference is generously sponsored by Borden Ladner Gervais LLP, Hart Publishing, The Marcel A. Desautels Centre for Private Enterprise and the Law, Miller Thomson LLP, Polley Faith LLP and the Social Sciences and Humanities Research Council.  More information and registration here.

"Concluding the Restatement (Third) of Torts" at Southwestern Law School

Byron Stier and I are pleased to announce "Concluding the Restatement (Third) of Torts" at Southwestern Law School on March 24, 2023:

Since the early 1990s, the American Law Institute has been drafting the Restatement (Third) of Torts.  That effort, down to a handful of projects, is within several years of completion.  Leading scholars, judges, and practitioners, many of them Reporters or Advisers for the final portions of the Restatement, will gather at Southwestern Law School to discuss significant remaining issues.  Occurring during the drafting process, the symposium is designed to affect positively the Restatement, and thus the law.

Sponsored by the Southwestern Law Review, Southwestern’s Panish Civil Justice Program, and the American Law Institute, the symposium will commence with a welcome by Justice Goodwin Liu of the California Supreme Court and the Council of the American Law Institute and will also include a luncheon keynote address by Brian Panish ’84, one of the nation’s leading trial lawyers.

The first panel will focus on the appropriate role of theory in the Restatement process.  The second panel will address issues of medical malpractice, including the proper standard of liability and California’s MICRA cap on damages, recently raised for the first time since its enactment in 1975.  The third panel will consider the controversial question of whether and how to recognize claims for medical monitoring in the context of the affirmative stance taken in the current draft of the Restatement.  Panel four will discuss issues in damages; many of the most heated disputes in tort law concern the proper amount of compensation to be paid for tortious injuries.  The symposium will conclude with a Reporters’ Roundtable, in which three sitting Restatement Reporters provide their analyses of key points from the day.

Speakers include Reporters Nora Freeman Engstrom, Mike Green, and Mark Hall, as well as Mark Behrens, Judge Kevin Brazile, Martha Chamallas, Mark Geistfeld, Deborah Hensler, Keith Hylton, Greg Keating, Nina Kohn, Justice Goodwin Liu, Brian Panish, Rex Parris, Phil Peters, Victor Schwartz, Tony Sebok, Cathy Sharkey, Ken Simons, David Studdert, and Adam Zimmerman.

More information is here.

Annual Conference on European Tort Law Brochure

The brochure for the 22nd Annual Conference on European Tort Law (April 13 and 14, 2023 in Vienna) is available here:  Download ACET_Folder_20230110

Torts at the AALS Annual Meeting in San Diego

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.

Tort Law Day 2022 at the American Museum of Tort Law

The Museum is having a virtual event for Tort Law Day 2022 on Saturday, October 29 at 1:00 Eastern.  Register here.

Shanin Specter

1:00 pm ET - Tort Law An Instrument of Social Justice
Founding Partner, Kline & Specter

Joanne Doroshow

1:30 pm ET - The Importance of Protecting and Advancing Tort Law
Founder and Executive Director of the Center for Justice & Democracy

Professor Valerie P. Hans

2:00 pm ET- Understanding and Safeguarding the Trial By Jury
Charles F. Rechlin Professor of Law, Cornell Law School

Greg Kafoury

2:30 pm ET- Seeking Justice for Injured Plaintiffs
Partner, Kafoury & McDougal

Ralph Nader

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

22nd Annual Conference on European Tort Law

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 22^nd 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

Email [email protected]                                                               Email [email protected]

http://www.ectil.org                                                               http://www.etl.oeaw.ac.at

The flyer is here:  Download Announcement ACET 2023 (eng) 21.10.22

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 Hawthorne
Program Coordinator
William C. Wefel Center for Employment Law
Saint Louis University School of Law
[email protected] 

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.

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

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.

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.  

The Immortal Snail 90 Anniversary Conference 26 May 2022

The Law Society of Scotland is organising a conference to celebrate the 90^th 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.

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 21^st 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

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.