TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, May 10, 2010

Our Thanks to the Spring 2010 Guest Bloggers

We really enjoyed hosting our Spring 2010 guest bloggers.  Our guests explored a wide array of topics: 

Thanks to everyone who participated this spring.  Guest Blogger Monday will return in the Fall.

- Sheila & Chris 

May 10, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, May 3, 2010

Geistfeld on "Tax breaks for bad behavior? On the relation between income taxes, punitive damages, and liability insurance"

 As the academic year winds down, I usually rearrange the piles on my desk in an effort to mark the onset of another summer full of promise and unrealistic expectations.  While rearranging the pile “tort-related things I’d like to read when I get a chance,” I came across the article by Gregg D. Polsky & Dan Markel, “Taxing Punitive Damages” (2010) (forthcoming Virginia Law Review).  Earlier this semester I had downloaded the manuscript and dutifully placed the printout in the appropriate pile. Since then, I’ve seen passing reference in the media to the apparent absurdity of federal tax rules that permit the deductibility of punitive damage awards—a deduction targeted for elimination in President Obama’s 2011 fiscal year budget.  How could punishment plausibly deserve a tax break?  The issue is more interesting than I had initially recognized, so I paused to peruse more closely the offerings of Polsky & Markel on the matter. 

They make the nice point that if punitive damages are not deductible, then plaintiffs and defendants have an incentive to “disguise punitive damages as compensatory damages in pre-trial settlements.” Doing so decreases the (after tax) cost of settlement for defendants, creating a gain that can then be shared by the settling parties.  By way of extended analysis, Polsky and Markel go on to conclude that the best way to solve the “under-punishment problem” created by deductibility is not to eliminate the tax break, as everyone had previously concluded, but instead to apprise juries of the deductibility issue so that they will “gross up” the punitive award to offset the tax break. 

Largely missing from the analysis, however, is discussion of how liability insurance affects the incidence of tort liability. Once this dimension of the problem has been recognized, it becomes apparent that there is a much stronger case against the deductibility of punitive damages.

Consider a world (largely like our own) in which every defendant worth suing has liability insurance covering at least a portion of a tort judgment (or any other form of civil liability that permits the award of punitive damages).  Suppose our insured defendant has incurred punitive damages liability.  Perhaps surprisingly, this form of liability is not expressly excluded from coverage under the standard-form liability-insurance contracts.  Whether the defendant can actually collect on the insurance, however, depends on whether the jurisdiction permits the insurability of punitive damages as a matter of public policy.

Nine or so jurisdictions, including California and New York, prohibit the insurance of punitive damages.  In these jurisdictions, any settlement between an insured defendant and the tort plaintiff presumably will allocate the appropriate amount to punitive damages. Regardless of how the defendant and plaintiff would otherwise like to characterize the proportion of compensatory and punitive damages covered by the settlement, the insurer is obligated to indemnify only the former category and accordingly will seek to maximize the portion of the settlement attributable to punitive damages (and excluded from coverage).  The insurer usually can police the terms of the settlement directly (the insurance contract gives the liability insurer the right to settle the case).  But if the insurer does not fully participate in the settlement, the terms of the settlement would not have preclusive effect in a subsequent coverage dispute with the tort defendant/policyholder regarding the amount of the settlement that is covered by the policy and properly allocable to compensatory damages.  The liability insurer, therefore, presumably will monitor the portion of the settlement allocable to punitive damages, effectively precluding plaintiffs and defendants from otherwise manipulating settlements in a manner that would thwart efforts to restore the full “sting” of punitive damages by making them nondeductible.

The argument against deductibility then largely generalizes to the remaining jurisdictions that permit the insurability of punitive damages.  The standard-form liability-insurance contracts do not cover liabilities for “expected or intended harms.”  In these cases, the insurer can deny coverage altogether—for both compensatory and punitive damages—and so it will not monitor the portion of any settlement properly allocable to punitive damages.  In light of the settlement problem identified by Polsky and Markel, the best approach would be to deny deductibility for the entire liability.  These instances of intentional wrongdoing clearly implicate the retributive concerns that would create a problem of “under punishment” in the event that the punitive award receives a tax break.  Rather than let the litigants manipulate settlements for tax reasons, why not eliminate the tax break altogether for liabilities of this type?  Why should these intentional wrongdoers be able to deduct any of their liabilities as a cost of doing business?

Regardless of how one answers this question, the case for nondeductibility remains intact.  The public policy concerns implicated by the insurability issue are substantively identical to those posed by the deductibility issue: each allows the tort defendant to distribute the cost of the punitive award to a wider group (other policyholders; other taxpayers).  In deciding to permit the insurance of punitive damages, a jurisdiction has concluded that the redistribution afforded by liability insurance does not create any public policy problem of “under punishment.” So, too, in these jurisdictions the redistribution afforded by the deductibility of punitive damages does not create any public policy problem of “under punishment.” Consequently, even if a tax rule of nondeductibility could be largely circumvented by the settling parties as Polsky and Markel conclude, there is no “under-punishment problem” created by the de facto deductibility of punitive damages.  This does not mean that the deductibility issue is largely irrelevant.  The tax rule against deductibility is still desirable as a federal matter because it furthers the public policy of those states that reject the insurability of punitive damages on the ground that wrongdoers should not be able to redistribute their punishment to others.

Admittedly, I live in a state where punitive damages are not insurable, and the analysis of Polsky and Markel has much more to offer than I have indicated.  They artfully unravel the surprising complexity of what appears to be a rather straightforward issue—whether bad behavior deserves a tax break.  Clearly, I should have put this article into my “read right away” pile (although that pile, of course, also ends up getting shuffled around at the close of the academic year).


- Mark Geistfeld

Sheila Lubetsky Birnbaum Professor of Civil Litigation

New York University School of Law

May 3, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, April 29, 2010

Introducing Guest Blogger Mark Geistfeld

Geistfeld   Monday's guest blogger is Mark Geistfeld.  Geistfeld is the Sheila Lubetsky Birnbaum Professor of Civil Litigation at New York University School of Law, where he teaches Insurance, Torts, and Products Liability.

Geistfeld joined the NYU faculty in 1992.   From 1997 to 2003, he served as the Director of the LL.M. (C.J.) Program, and in 2005, he served as Co-Director for the Center for Law, Economics, and Organization.  Geistfeld was the Crystal Eastman Professor of Law in 2004,and is now the inaugural Sheila Lubetsky Birnbaum Professor of Civil Litigation.

Geistfeld's publications are too numerous to list here.   A few of his recent publications include "Efficiency, Fairness, and the Economic Analysis of Tort Law," in Theoretical Foundations of Law and Economics  (Mark D. White, ed., Cambridge University Press, 2009); "Products Liability," in Encyclopedia of Law and Economics, Vol. 1 (Michael Faure, ed., Edward Elgar Press 2nd ed., 2009);  "Social Value as a Policy-Based Limitation of the Ordinary Duty to Exercise Reasonable Care," 44 Wake Forest Law Review  899 (2009); "The Value of Consumer Choice in Products Liability," 74 Brooklyn Law Review  781 (2009); Tort Law: The Essentials (Aspen Publishing, 2008), and "Punitive Damages, Retribution, and Due Process," 81 Southern California Law Review  263 (2008).

Geistfeld received his J.D. from Columbia Law School, and also a Ph.D. (Economics)  from Columbia University.  He also holds a M.A. (Economics) from the University of Pennsylvania.  Prior to joining academia, Geistfeld was a law clerk to Judge Wilfred Feinberg, of the United States Court of Appeals for the Second Circuit.  He also worked in the New York offices of Dewey Ballantine and Simpson, Thacher & Bartlett.   


April 29, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, April 26, 2010

Guest Blogger Andrew Klein: "Science, Causation, and Toxic Torts"

Tort lawyers and scholars have long grappled with the issue of how to prove causation in toxic tort cases.   Establishing causation is difficult because latency periods often precede exposure-related harm, making it hard for plaintiffs to connect illness to a particular substance.  To overcome this problem, tort law has looked to science for help, and a large body of doctrine and scholarship has developed discussing what is sufficient to prove causation in a toxic tort case.  In recent years, however, scientific developments have moved at a dramatic pace.  The law soon will need to catch up. 

Most legal debate in this area references probabilistic evidence (such as epidemiology studies) or extrapolative evidence (such as toxicology studies involving organisms or animals).  Recent breakthroughs, however, will allow researchers to draw more specific conclusions about the consequences of toxic exposures than one could have imagined even a decade ago.  For example, new techniques permit the observation of biomarkers in human tissue or fluids that can more accurately measure individual levels of exposure to toxic substances.   Advances in toxicogenomics – the study of interaction between genes and toxins – are even more dramatic.  Developments in this field have the potential to demonstrate not only individual exposure to a substance, but also the early progression of disease.  (See generally National Institute of Environmental Health Sciences, Toxicogenomics Research Consortium, 

The potential implications for tort law are immense, as people will have an increasing ability to gain information about health risks and environmental exposures before they manifest clinical symptoms of disease.  Such information might provide opportunities for those on either side of a toxic tort lawsuit.  Plaintiffs, for example, will argue to expand the traditional notion of compensable harm.  Defendants, on the other hand, might look for evidence that a claimant’s disease was progressing before a particular exposure took place.

Before going further, I should inject appropriate caution.  The “genomics revolution” is still in its infancy, and we remain far from having the ability to easily connect individual disease to most toxic exposures.  But given the speed at which other developments have taken place, why should doing so be a far-off fantasy?  Consider, for example, that the first human genome was successfully sequenced only seven years ago – after thirteen years of work and $300 million of investment.  Today, technology allows researchers to sequence chemical bases thousands of times faster and at a fraction of the cost.  This has spurred a cottage industry in the area of “personalized medicine,” with dozens of companies marketing direct-to-consumer genetic tests designed to analyze portions of the human genome that might have a correlation with disease.  If we’ve come this far in just over a decade, what might the next ten or twenty years bring?  Is it really far-fetched to think that we might soon be able to connect a toxic exposure to disease as easily as one connects a punch in the nose to a broken bone? 

In a forthcoming article, Professor Steve C. Gold of Rutgers-Newark discusses these issues at length, dividing commentators into camps of those who take the “prophetic view and [the] skeptical view of the new science’s potential.”  (Gold, “The More We Know, The Less Intelligent We Are? -- How Genomic Information Should, and Should Not, Change Toxic Tort Causation Doctrine,” 34 Harv. Envtl. L. Rev. ___ (forthcoming 2010)).  Count me proudly among the “prophets.”  Will I be right?  Only time will tell … but I’ll bet that time will come sooner than many might imagine. 

Andrew Klein

Paul E. Beam Professor of Law

Indiana University School of Law-Indianapolis

April 26, 2010 in Guest Blogger | Permalink | Comments (1) | TrackBack (0)

Thursday, April 22, 2010

Monday's Guest Blogger: Andrew Klein


Andrew R. Klein is the Paul E. Beam Professor of Law at the Indiana University School of Law-Indianapolis.  He previously taught at Samford University’s Cumberland School of Law and practiced with the Chicago firm of Sidley & Austin.

Professor Klein has published articles on a range of tort law issues.  He is co-author of a casebook, Torts: Cases, Problems and Exercises (Lexis/Nexis 3rd ed. 2009) and is currently working with a group of co-authors on a new casebook, Toxic and Environmental Torts: Cases and Materials (Thomson/West forthcoming 2010).

Professor Klein is a member of the American Law Institute and serves on the executive committee of the AALS section on Torts and Compensation Systems. He also serves as Reporter for the Seventh Circuit United States Court of Appeals Civil Jury Instructions Committee.  In addition, Professor Klein is a dedicated classroom teacher who has won nine student teaching awards during his career.


April 22, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

Guest Blogger Jennifer Wriggins: "Torts, Insurance, and the Value of Injury"

When U.S House Speaker Nancy Pelosi said recently, on passage of health care reform legislation, that “being a woman is no longer a preexisting condition,” I wondered what exactly she meant.  I believe she meant three things.  First, prior to passage of the legislation, women sometimes were turned down for individual health policies because they had had a prior Caesarean section.  Second, women who purchased individual policies had routinely been charged far more than men for the same policy (even when a woman’s policy excluded maternity care).  Third, and most relevant to this post, some companies selling individual policies had refused coverage for domestic violence injuries by considering domestic violence to be a ‘preexisting condition.’ This means that some women who have been victims of domestic violence, then, could not get health insurance coverage—first party coverage—for future domestic violence injuries.


    A A   A mismatch between insurance coverage and common injuries to women also characterizes the liability insurance market, which crucially affects tort law.  If a victim of domestic violence (which necessarily is tortious and usually criminal) tries to bring a tort suit against the perpetrator, she will almost certainly find that  insurance coverage is barred by the “intentional acts” exclusion or the “family member” exclusion found as a standard feature in liability policies.  Interspousal immunity may have been discarded, but private insurance has erected an equally effective barrier to recovery.  Since liability insurance indisputably drives tort law, a domestic violence victim will most often be without a remedy.


Domestic violence victims encounter other barriers when they file tort claims.  The statute of limitations for intentional torts is typically one or two years, shorter than that for negligence and strict liability, which typically is between two and six years.  Although the short statute of limitations barrier is applied equally to all intentional tort victims, the shorter limitations period is particularly harsh for domestic violence victims.  This is because the pattern of coercion and control that often characterizes domestic violence makes considering a tort claim near the time of injury inconceivable for many domestic violence victims.  The shorter statute of limitations for intentional torts can be traced back to a 1623 Act of Parliament, the rationale for which has been lost to obscurity.   Because the usual policy reasons for statutes of limitations--barring stale claims, avoiding the problem of fading memories, and fostering predictability--apply to both intentional torts and negligence, there is no reason for the shorter statutes of limitations.   To compound difficulties, there is a tendency to steer domestic violence claims into family court. Some states require that any tort claims be joined with a divorce, or else be barred by res judicata or collateral estoppel.  These joinder rules can put extreme pressure on domestic violence tort victims who may be unable to contemplate a tort claim until their divorce is final.


How cruelly ironic that tort law supposedly regards intentional torts to be more serious than negligently inflicted harms.  After all, unlike with negligence, there is no economically efficient level of  intentional torts such as assault, battery, and intentional infliction of emotional distress.  Yet, we have developed an asymmetric system of torts and insurance that provides mandatory liability insurance to compensate for injuries caused by automobile accidents, but  at the same time ensures that injuries from domestic violence are not compensated by liability insurance (and until recently, may not have even been covered by a woman’s health insurance).   The costs of car accidents do not fall solely on the victims, but very often are shifted and spread through comprehensive torts and insurance mechanisms.  Thus, injuries caused by negligent drivers have a most-favored injury status in our torts and insurance system.  Despite the widespread harm caused by domestic violence, the dominant focus of torts continues to be accidental injury


A century ago, Oliver Wendell  Holmes and Roscoe Pound centered the field of torts on accidental injury and declared the problem of intentional torts to be solved.  Interspousal immunity was then the law of the land and domestic violence was legal.  Sadly, in the torts realm, not that much has changed; tort suits for this pervasive harm are exceedingly rare.   The costs of domestic violence still are not shifted but fall solely on the victims (and their children).   The risks of domestic violence are not shared.  Given the widespread public attention to domestic violence, we no longer can say, as we could forty years ago, that we do not appreciate the magnitude of the harm.  Although torts scholars often talk about deterrence and compensation as being broad goals of tort law, we seem to take for granted that tort law is incapable of deterring or compensating for this widespread harm.  In my view, we have not even attempted to get the private enforcement mechanisms of torts and insurance to work in this area.  As Kenneth Abraham recently wrote, the insurance business is “remarkably creative” at insuring risks that at first seemed uninsurable.  Is it finally time to start considering injuries caused by domestic violence to be as worthy of tort compensation as injuries caused by negligent drivers? 


--Jennifer B. Wriggins

Sumner T. Bernstein Professor of Law and Associate Dean for Research

University of Maine School of Law



Selected References:

-Kenneth Abraham, The Liability Century:  Insurance and Tort Law from the Progressive Era to 9/11 (Harvard University Press 2008)

-Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law (NYU Press forthcoming May 2010)

-Robert Pear, ‘Women Buying Health Policies Pay a Penalty,’ New York Times, Oct. 29, 2008

-Jennifer Wriggins,  ‘Domestic Violence Torts,’ 75 So. Cal. L. Rev. 121 (2001)

April 19, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, April 15, 2010

Monday's Guest Blogger: Jennifer Wriggins


Jennifer B. Wriggins is the Sumner T. Bernstein Professor of Law and the Associate Dean for Research at the University of Maine School of Law.  Professor Wriggins specializes in Torts, Insurance Law, and Family Law. Upon receiving her J.D., Professor Wriggins served as Clerk to Hon. Edward T. Gignoux, U.S. District Judge in Portland, Maine. She was a Visiting Professor at Harvard Law School and Boston University School of Law in Spring 2005. Her book, "The Measure of Injury: Race, Gender, and Tort Law" (NYU Press 2010, co-authored with Professor Martha Chamallas of Ohio State University) will be published in Spring 2010. She is the 2006 recipient of the USM Faculty Senate award for excellence in teaching. She was appointed Associate Dean for Research in May 2009. She has published articles in the areas of torts, insurance, and family law, with a focus on race and gender. In October 2008, her research was cited in James McMillen v. The City of New York which held that use of race-based life expectancy tables was unconstitutional. Her articles are frequently cited and excerpted in books.

Prior to joining the faculty of Maine Law, she was a partner at Pressman, Kruskal & Wriggins in Cambridge, Massachusetts, served as an Assistant Attorney General in the Massachusetts Attorney General’s office, and was in private practice in Maine. She graduated magna cum laude with distinction in philosophy from Yale College and graduated cum laude from Harvard Law School. She is a member of the American Law Institute, and is Treasurer of the Executive Committee of the Association of American Law Schools Torts and Compensation Systems section.


April 15, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, April 12, 2010

Guest Blogger Phoebe Haddon: Update on the UMD Clinic and Thoughts on Don Gifford's New Book


Let me begin by thanking those of you who responded to the March 30, 2010 posting of Torts colleague and my casebook co-author, Michael Rustad, in which he encouraged you to sign Professor Peter Joy’s letter to the Maryland legislature and others. This letter expressed deep concern over the General Assembly’s proposed budget amendments requiring a report on the cases, clients, and allocation of sources of funds in the University of Maryland Law School’s Environmental Law Clinic for the last two years and other information about clinics in public institutions. These proposed budget-linked amendments were in response to litigation undertaken by the Environmental Law Clinic against Perdue and farmers alleged to have violated Clean Water Act provisions. They were particularly troublesome because the reporting requests were linked to the release of funding for the University of Maryland Baltimore and the University System of Maryland.

This controversy ended in a compromise that removed the linkage of funds with any reporting and limited our obligation to report to the legislature only about publicly available information about cases (i.e., case names) and information about sources of funds that was not the subject of lawyer-client privilege. Moreover, the new reporting requirement was not attached to the budget but merely became part of the Conference report of the Conference Chair.  The principal materials about the clinic and my formal statement about the controversy are available here

We are pleased with this resolution and grateful for the support offered by law professors and leaders of legal education organizations (such as AALS and SALT), the president of the ABA, and other clinical and law faculty groups. Our faculty and students organized a teach-in and sent letters to the Chancellor of the System, the President of the University as well as the legislature and our alumni and other supporters also communicated with these decision makers in organized and individual responses. There were thoughtful articles generated by clinicians and other supporters that led to articles in the New York Times as well as local newspapers like the Baltimore Sun, the Washington Post, and other local and national media outlets like the Chronicle. 

More than 450 law professors and over fifty deans signed Peter Joy’s letter and similar communications. While we are grateful for this outpouring and are mindful of the importance the impact it likely had on the legislators who began this inquiry, we view this local controversy against the background of a recent troublesome trend of legislative responses challenging the independence of clinic work and in light of the history of other similar legislative push back captured in a new book by Robert Kuehn who also offered us leadership and advice. I write this blog entry mindful of this real life example of political action that leaves me more skeptical than ever of local, legislatively derived resolution of extraordinarily complex social controversies that have substantial public interest. 

I take this opportunity to share with you some thoughts about a newly released publication by one of University of Maryland’s legal scholars in Torts, Don Gifford. His book, Suing the Tobacco and Lead Pigment Industries:  Government Litigation as Public Health Prescription, (University of Michigan Press 2010), ISBN 978-0-472-11714-7, is also available as an e-book (ISBN 978-0-472-02186-4.) Don brings to this project his expertise as a scholar of mass products torts and his advocate’s work seeking stronger legislation to eliminate childhood lead poisoning, as chair of the Maryland Lead Poisoning Prevention Commission and as a consultant for the paint industry in a dozen or more states. Don Gifford reports that -- perhaps retrospectively -- among his memorable experiences as a legislative advocate occurred in 2003, when the legislation he proposed caught the interest of an impressive chair of an Illinois State Senate committee who a few years later would become President of the United States.

Professor Gifford has described his book as follows:

Suing the Tobacco and Lead Paint Industries explores parens patriae litigation by state governments against manufacturers of cigarettes, lead pigment, handguns and other products. Widespread public health problems caused by product exposure bedeviled courts for decades. Traditional tort doctrines, with their origins in nineteenth-century cases involving traumatic collision injuries, blocked the recovery of victims of tobacco-related illnesses and childhood lead poisoning. During the same period, regulatory authorities, influenced by business lobbyists, failed to protect the public. Public health advocates and state officials, therefore, greeted the arrival parens patriae litigation against product manufacturers  in the 1990’s as an almost magical means of overcoming the legal obstacles that had prevented individuals from recovering for product-caused harms.   

From the vantage point of fifteen years after the first parens patriae suits, Don Gifford offers a far different picture than seemed likely at the outset. Courts have been hostile to the expansion of traditional tort claims, at least for the present, foreclosing the opportunity for recovery for individual victims of product-related public health harms (and their families). Reviewing the settlement of state-generated suits against the tobacco industry, Professor Gifford finds they did little to address the underlying problem of harm-causing products; to the contrary, they served to promote economic benefits of the tobacco industry and secure their commercial longevity and strength. Moreover, the remedies sought in these settlements as well as in the judicial decrees developed in the first stages of lead litigation were not designed to provide substantial relief to the individual claimants injured by these harmful products.

Don Gifford finds troublesome the fact that parens patriae litigation relocates the power to craft meaningful relief for these public health problems engendered by products – which he characterizes as improper regulation of products. This relocation of power for Professor Gifford raises concerns about allocation of powers among coordinate branches and other constitutional concerns. He is also critical of some courts’ tendency to rely on common-law tort theories like public nuisance to tackle these product-caused public health problems. Ultimately, Don Gifford concludes that only the legislature can effectively and appropriately address product-caused public health problems.

Don’s well researched and thought-provoking effort to support this conclusion provides his audience with a readable and accessible understanding of the emergence of government-promoted tort litigation against product manufacturers. He gives us a framework for thinking about the earlier shortcomings of legislative as well as judicial efforts to address product-related public health harms as well as to ponder the appropriateness of attorneys general entering the fray despite the failure of other responses. He challenges us to come up with alternatives if we don’t agree with his conclusion.

While I might agree that stare attorney generals lack competence to engage in the kind of complex regulatory-like undertaking to address the public health impact of products, I would have liked Professor Gifford to further explore alternative options to provide redress for individual victims in the future: courts addressing private suits with new theories and comprehensive federal administrative regulation supported by federal legislation. Neither alternative is explored in this book in part because Don assumes that the lesson learned from the massive asbestos litigation experience was that courts are ill equipped to resolve these kinds   of disputes. By implication he accedes to the view that that the common law’s traditional tort limitations related to causation should be preserved.

I believe that the future may support a different view of product-related harms to individual victims, challenging these assumptions.   Gifford distinguishes the court-focused resolution of school desegregation and prisons from the public nuisance-based claims that state attorneys general raise, emphasizing the constitutional foundations supporting those earlier suits. But could there emerge a similar public interest- based theory of liability that similarly supports committing to judicial resolution such large-scale social problems implicating the public health?  One could imagine for example a human rights framework for addressing such claims. Like Guido Calabresi and others of the seventies and eighties young scholars today are drawing upon human rights analysis to address fundamental inequities in the distribution of economic wealth and resources for basic human survival and respect.  Our students who are exposed to the teachings and writing of these scholars may construct new human rights-based claims and provide  convincing arguments for courts of the future, less inclined to be bound by what Gifford admits are nineteenth century limitations on addressing twenty-first century public health problems.

Is it more likely that we might actually see a future state or federal legislature prepared to address the complex problem of products affecting the public health, linking administrative relief for victims with appropriate regulation? Gifford reminds us that James A. Henderson earlier observed that it is commonly accepted “in a representative democracy macro-economic regulation is accomplished by elected officials and their lawful delegates.”  (p 200). But the fact is that neither state nor federal legislatures seem inclined to address these problems in a broad way, responsive to the needs of numerous individual tort victims or the public interest in addressing massive and expensive health effects of products. Indeed as Gifford confirms, state legislative agendas have been dominated by business interests bent on limiting, not expanding, tort claims and relief, through caps to pain and suffering, limitations on actions and immunity. Congress has gutted the grounds for class actions and is more likely to limit or eliminate claims rather than expand liability; it seems more bent on conflating victim rights with frivolous suits.

The fact is that without a better educated and informed citizenry to challenge the position that commercially supported economic development depends on reducing consumer protection, there is little hope for legislative response to the public health issues related to products. The predominant interest in limiting rather than expanding tort actions will continue to prevail.

    Don Gifford’s new book is bound to provoke arguments about these and other possibilities that lie ahead.

Phoebe A. Haddon

Dean and Professor of Law

University of Maryland School of Law

April 12, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, April 8, 2010

Introducing Guest Blogger Phoebe Haddon

Phaddon Monday's guest blogger is Phoebe Haddon.  Haddon is Dean and Professor of Law at the University of Maryland School of Law.

Dean Haddon joined Maryland Law after more than 25 years as a distinguished faculty member at the Temple University Beasley School of Law. An accomplished scholar on constitutional law and tort law, Dean Haddon is the co-author of two casebooks in those fields (namely, Tort Law: Cases, Perspectives and Problems (Lexis Nexis ed., 2007)), and has written numerous scholarly articles on equal protection, jury participation, academic freedom, and diversity.

Dean Haddon has provided leadership to numerous organizations dedicated to improving American legal education. She serves on the Council of the American Bar Association Section on Legal Education and Admission to the Bar, the official accrediting body of American law schools. She has served as co-president of the board of governors and member of the executive committee of the Society of American Law Teachers, member of the executive committee of The Association of American Law Schools, and trustee of the Law School Admissions Council.

Actively engaged in supporting the work of the Pennsylvania bench and bar, Dean Haddon served as a member of the Gender Commission of the Third Circuit Task Force on Equal Treatment in the Courts and as a member of the Race Subcommittee of the Supreme Court of Pennsylvania's Committee on Racial and Gender Bias in the Justice System. She was a member of the City of Philadelphia Board of Ethics, and worked on bias and diversity-related issues in the Philadelphia Bar Association. Dean Haddon is also a member of the Board of Trustees of the Pennsylvania Bar Institute.

Dean Haddon earned an LLM from Yale Law School and a Juris Doctor, cum laude, from Duquesne University School of Law, where she was editor-in-chief of the Duquesne Law Review.  She received a bachelor's degree from Smith College and served as Vice-Chair of the Smith College Board of Trustees until her appointment as dean. She served as a law clerk for The Hon. Joseph F. Weis, Jr., United States Court of Appeals for the Third Circuit, and practiced at Wilmer Cutler & Pickering in Washington, D.C., before joining the faculty at Temple law school in 1981, where she taught courses on constitutional law, torts, products liability, and race and ethnicity. While on leave from Temple, she served as Deputy Executive Director of the Redevelopment Authority of the City of Philadelphia and President of the Low-Income Housing Development Subsidiary and the Philadelphia Development Mortgage Assistance Corporation (1987-89). 


April 8, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, April 5, 2010

Guest Blogger Alex Long: "Should Tort Law Be Tougher on Lawyers?"

 Should Tort Law Be Tougher on Lawyers?

    There are plenty of special tort rules that have developed when lawyers are sued in their professional capacity.  As my colleague Ben Barton has observed, most of these special rules treat lawyers more favorably than similarly-situated nonlawyers.  Examples include the courts’ refusal to recognize the “loss of chance” theory in legal malpractice cases and the recognition of the absolute litigator’s privilege, which some courts have extended beyond the defamation context to shield lawyers from liability under theories ranging from intentional infliction of emotional distress to fraud. 


    That’s why about a year ago I was surprised to learn about a special form of civil liability for lawyers that is decidedly lawyer unfriendly.  In Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009), the New York Court of Appeals considered the meaning of § 487 of New York’s Judiciary Law, which singles out lawyers for special treatment.  Specifically, the statute makes it a crime for an attorney to engage in “any deceit or collusion” and provides for the recovery of treble damages by a party injured by the attorney’s actions.  Several other states have similar statutes, nearly all of which contain the treble damages provision.  Historically, courts (including in New York) interpreted these statutes in a narrow fashion, concluding that they simply track the common law claim of fraud.  However, in Amalfitano, the New York Court of Appeals concluded that the statute should be interpreted in an “expansive” manner and permitted the plaintiffs to recover the costs of their defense (times three) resulting from the defendant-lawyer’s act of knowingly making false representations to the court in a pleading in the underlying matter.


    Potentially, that’s a pretty significant decision for lawyers, at least insofar as it subjects lawyers to civil liability for which nonlawyers cannot be held liable.  Had the Amalfitano plaintiffs sued the defendant-lawyer’s client on a fraud theory, they probably would have lost since the attempted fraud involved attempting to mislead the court; thus, the attempted fraud was one upon the court, rather than the plaintiffs.  Moreover, the plaintiffs probably would have lost on a malicious prosecution or wrongful initiation of civil proceedings claims because New York (like a lot of jurisdictions) requires that a plaintiff suffer “special injury,” i.e., something above and beyond the costs of defending baseless litigation.  But neither of those rules were obstacles for the Amalfitano plaintiffs, who chose to rely on § 487 and sue the lawyer who made the false allegations on behalf of his client.


    The question I’ve been wrestling with since the decision is whether it’s such a good idea to lower the standard for lawyer liability in cases of deceit occurring while a lawyer is representing a client.  On the one hand, much of the tort law governing lawyers is based on the idea that we do not want to deter lawyers’ willingness to engage in diligent representation of their clients for fear of facing civil liability.   On the other hand, there is the reality that lawyers have special obligations when it comes to the administration of justice as officers of the court.  Ultimately, it strikes me as being a fundamentally different thing for a lawyer – while wearing his or her lawyer hat – to knowingly lie to the court or to intentionally destroy evidence than it is for a nonlawyer to do the same.


    But is it different enough to justify imposing liability on the lawyer when the jurisdiction’s tort rules would not allow for liability in the case of a nonlawyer?  I tend to think that an appropriate analogy here is to the employment law tort of wrongful or retaliatory discharge in violation of public policy.  Why do we provide a remedy for an employee who has been fired for applying for workers compensation benefits or serving on a jury?  Sure it’s because we think it’s unfair for the employee to be forced to choose between his or her job and taking advantage of a statutory entitlement or fulfilling a public obligation.  But it’s also at least as much because we want to preserve the integrity of the systems and institutions that are adversely affected by the employer’s action.      Similarly, while I feel bad for the party that has incurred added expense or heartache as a result of the fact that the other side has lied to the party or the court during a legal proceeding, I’m at least equally concerned about the damage to the integrity of the legal process.  I’m less concerned when it’s a party that’s doing the lying because the legal system’s structure is based in part on the recognition that parties may, in fact, lie.  We expect it to happen and have measures in place to guard against it.  But we shouldn’t have to guard against the lawyers to the proceeding engaging in deceit, particularly where the courts and the legal profession have established a monopoly on the practice of law and have certified the fitness of those who practice it.  The courts and the legal profession have, in effect, made an assurance about the integrity of the process.  Permitting lawyers to damage that integrity creates the kind of public or third-party harm that, to my mind, justifies a remedy.


    Of course, that conclusion still leaves open a host of other issues, including whether it also makes sense to criminalize attorney deceit (as the majority of these statutes do) and how to define the concept of “deceit” as applied to attorneys.  But in light of the damage that attorney deceit occurring during the course of a legal proceeding causes to the other party, the integrity of the legal process, and the reputation of the legal profession, I think that it generally makes sense for tort law to be tougher on attorney deceit than other types of deceit.


--Alex B. Long

University of Tennessee College of Law

April 5, 2010 in Guest Blogger | Permalink | Comments (1) | TrackBack (0)

Thursday, April 1, 2010

Monday's Guest Blogger: Alex Long


Alex Long is Associate Professor of Law at the University of Tennessee College of Law.  Professor Long moved to UT in 2007 after teaching at the Oklahoma City University School of Law for four years. He began his teaching career at the West Virginia University College of Law, where he taught Contracts, Disability Law, and Legal Research & Writing. Before entering academia, Professor Long was an associate in the labor group of the Clarksburg, West Virginia office of Steptoe & Johnson.

Professor Long teaches and writes in the areas of Torts, Professional Responsibility, Employment Law, and Disability Law. His scholarship in this area has been published in numerous journals, including the Minnesota Law Review, Washington Law Review, Washington & Lee Law Review, and the Georgetown Journal of Legal Ethics.

Professor Long received his law degree from the College of William & Mary in Williamsburg, Virginia, where he was Topics & Research Editor for the William & Mary Law Review. He received the W. Allen Separk Faculty Scholarship Award in 2007 for his article in the Florida Law Review.


April 1, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Guest Blogger David Owen: "Foreseeability in Accident Law"

    Foreseeability often gets a bum rap in tort.  As ephemeral as foreseeability by nature plainly is, most of us appreciate how important the concept is in shaping the outer boundaries of negligence responsibility.  Courts widely assert that foreseeability resides importantly in duty, and that recoverable harm, to be compensable, must be classifiable as foreseeable.  Of central importance, though often simply ignored, is the fact that the very notion of breach of duty—of legal “wrongdoing”—involves a blameworthy choice to act one way rather than another in the face of the foreseeable consequences of the actor’s contemplated action and its alternatives.

    Only recently have I come to realize how deep the roots of foreseeability are in providing negligence law with moral succor.  Thanks to a conference at Wake Forest last April marking the conclusion of central work on the Restatement (Third) of Torts, hosted by Reporters Mike Green and Bill Powers, Ben Zipursky and I both had an opportunity to focus closely (me, for the first time) on the role of foreseeability in negligence law.  Ben and I both concluded that foreseeability properly plays a larger, deeper role in negligence law than the Third Restatement and many commentators believe it should.  While Ben focuses closely on the internal coherence of tort law, my focus is on its moral power.  And so I was struck by the salience of Jim Henderson’s remarks, in his perceptive March 15 guest blog, reminding us that “at its core, tort law’s purpose is to help to define what is just, right and fair” according to “relational notions of right and wrong.”

    The other side of conduct that is “right and fair,” of course, is wrongdoing, the central feature of the tort of negligence.  Wrongdoing suggests that an actor chose to act in a way that violated some norm of proper behavior (say, failing to adhere to customary behavior in a particular relationship or failing to accord equal respect to the interests of a stranger) rather than in an alternative way that would have avoided the kind of harm the actor caused.  Ascribing moral character (blame or praise) to a choice to risk or avoid the risk of harm implies the actor’s ability to conceive (“foresee”) the consequences of the chosen action.  It seems fundamentally unfair, and quite illogical, to blame a person for failing to avoid a consequence he or she could not imagine. Foreseeability thus is inextricably bound up in the notion of wrongdoing, which includes the notion of how far responsibility for wrongdoing should extend.

    Foreseeability, I think, also belongs in judicial duty determinations, although the Reporters for the Third Restatement disagree, reasoning that foreseeability is intrinsically factual and so should be left to breach of duty determinations for juries alone to decide.  Courts, however, routinely state that foreseeability is the first inquiry in duty determinations, and I think they are right, since it makes little sense to me to impose duties on people to avoid risks of harm they fairly cannot be expected to contemplate. While I agree with the Reporters that judges ordinarily should not use the foreseeability issue in duty determinations to hide factual or important policy choices, I believe that courts correctly consider the foreseeability of certain types of risk at an abstract, categorical level just as they so consider other reasons for defining types of situations where the normal principles of negligence law should not tread.

    In teaching tort law over the years, I now realize that I may have failed to give foreseeability its due.  During the preliminary examination of  negligence concepts, I normally stop to linger on the Hand formula (with delight, if perhaps a bit too long), dwelling on some of the many hidden mysteries in B, and P, and L, but typically paying little heed to the small child crouching in the shadows—foreseeability.  While I do touch briefly on the notion of foreseeable risk in these early days of negligence inquiry, my usual thought is that I’ll return to it—and address it fully—down the road when we get to proximate cause, at which time foreseeability rears its head hesitatingly in Polemis, proudly in Wagon Mound I, and then powerfully in Palsgraf.  It is then (and only then) that I normally return my students to a consideration of the role of foreseeability in breach, reviving a focus on the Hand formula where foreseeability enhances the inquiry in suggesting negligence if B < (f) P x L.

    This delayed approach to foreseeability may be necessary in allowing the burgeoning legal minds of first-semester students time to develop some preliminary blossoms of negligence understanding, but I now am thinking that I should dwell a bit more in those earlier classes on how the blameworthiness of a choice to act one way rather than another rests necessarily on the foreseeable consequences of the choice, be those consequences good or bad.  Putting aside whether negligence should be defined primarily in terms of costs and benefits, section 3 of the Third Restatement—thanks to the considered efforts of initial Reporter Gary Schwartz—now helpfully defines negligence in terms of foreseeable consequences—the foreseeable likelihood of injury, and its foreseeable severity (in Hand formula terms, the foreseeability of both P and L).  For torts teachers who provide the section 3 definition to their students, foreseeability now will squarely be on the table at the inception of the inquiry into how a norm of proper behavior should be defined.  Although I still probably will defer much of the discussion on the deeper mysteries of foreseeability in my own torts classes until we examine proximate cause, I am glad the new Restatement gives such prominence to a feature I believe to be the moral glue of the concept of wrongdoing in the law of accidents.

--David Owen, Carolina Distinguished Professor of Law

University of South Carolina School of Law

March 29, 2010 in Guest Blogger | Permalink | Comments (2) | TrackBack (0)

Thursday, March 25, 2010

Monday's Guest Blogger: David Owen


David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina School of Law, where he teaches courses and seminars on Tort Law, Tort Theory, and Products Liability. Prior to teaching, Professor Owen received degrees in economics (Wharton) and law from the University of Pennsylvania, was law clerk for the Chief Justice of the New Hampshire Supreme Court (the Honorable Frank R. Kenison), and practiced law in Denver (Holland and Hart). Other than South Carolina, Professor Owen has taught at the Universities of Alabama, Indiana, Michigan, Nebraska, and Texas; Oxford University, England; Santa Anna University, Pisa, Italy; and the University of Navarra, Pamplona, Spain. In addition to numerous journal articles, Professor Owen authored, co-authored, and edited various books, including a hornbook/treatise, Products Liability Law (Thomson/West 2008, 2005); Products Liability in a Nutshell (Thomson/West 2008, 2005); the leading casebook, Products Liability and Safety (Foundation Press 2007, 2004, 1996, 1989, 1980); a products liability treatise, Madden & Owen on Products Liability (3 volumes, West 2000); a theoretical work, Philosophical Foundations of Tort Law (Oxford Univ. Press, ed. 1994); and Prosser & Keeton on Tort Law (West 1984). He has advised Congress, state legislatures, the British Law Commission, and the European Union on various products liability and tort law matters.  Furthermore, he is an Adviser to the American Law Institute on the Restatement (Third) of Torts, and he was the Editorial Adviser for the Restatement of Products Liability.


March 25, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, March 22, 2010

Nagareda on "Developments in the Resolution of Mass Torts: The New Face of Client Consent"

Much of our thinking about torts rightly focuses on the conceptual landscape of substantive law.  A significant related theme, however, concerns the legal principles that govern the ultimate cashing-out of tort claims.  No context presents both the urgency and the challenges of that process more starkly than the resolution of mass tort claims.  The menu of available vehicles to organize such a resolution plays a major part in mediating between tort law in a doctrinal sense and tort law in its on-the-ground operation.

 Writing at the intersection of torts and complex litigation procedure, I suggested in a 2007 monograph that we may understand developments concerning the resolution of mass tort claims in recent decades in institutional terms.  The law has been searching for an institutional vehicle to legitimize the resolution of tort claims on a mass basis – and, no small feat, to do so in such as way as actually to deliver closure in the area of litigation at hand.  If one were to imagine a continuum of such vehicles, then they would start on one end with notions of individualized consent in the private law of contracts.  Ordinary individual settlements of tort claims – as for civil claims generally – take their legitimacy from consent in the sense understood in contract law.  The other end of the continuum, if one will, ranges all the way to public legislation – literally so, in the case of the 9/11 victim compensation fund.    

If anything, the limitations of the two end points along the continuum are the converse of one another.  Individual settlements are relatively easily had but do not deliver much in the way of closure for mass tort litigation as a whole.  Public legislation may achieve much in the way of closure but is not easily had in political terms.  As a result, the most interesting points along the continuum of institutional vehicles are not its end points but, rather, an array of less well understood arrangements in the middle.  Until recently, these have consisted of aggregate settlements, class action settlements, and reorganizations in bankruptcy. 

In recent years, a new arrangement has emerged, to the point of spawning what is now an emerging scholarly literature about its operation and legitimacy.  The 2007 settlement arrangement used to resolve mass tort litigation over the prescription pain reliever Vioxx exemplifies this new development.  The Vioxx deal is striking in that it did not actually resolve a single extant Vioxx claim.  The contracting parties were not the defendant manufacturer Merck & Co. and any individual Vioxx plaintiff.  Rather, the contracting parties consisted of Merck and the small number of law firms within the mass tort plaintiffs’ bar with significant inventories of Vioxx claims.  The signatory firms obligated themselves to “recommend” participation in the compensation framework described in the agreement to 100% of their individual clients.  Were any given client to decline the advice to take the deal, the signatory firm obligated itself – “to the extent permitted by” legal ethics – to disengage from the representation of that client.  For its part, Merck committed a fixed sum of $4.85 billion to the deal, contingent upon a take-up rate of at least 85 percent on the part of Vioxx plaintiffs overall.  This condition was easily met, with over 99 percent of plaintiffs ultimately enrolling in the deal.

Given the checkered history of peacemaking efforts for mass torts, 99-percent closure is no small achievement.  Yet this very success – the realization of a “mass settlement without class actions,” in the words of one prominent lawyer on the plaintiffs’ side– is precisely the source of consternation for critics of the Vioxx deal.  For critics, the Vioxx deal exemplifies a deeply troubling trend toward the exalting of closure in mass torts to the detriment of legitimate consent.  In the most thoughtful and provocative exposition of this critique in the scholarly literature to date, Howard Erichson and Benjamin Zipursky contend that individual client consent in the Vioxx deal is illusory.  On this view, the deal placed the signatory law firms’ business interest in garnering one-third or more of the $4.85 billion that Merck had put on the table against their ethical obligation to render legal advice tailored to the specific situations of their individual clients.  Even worse, critics contend, the deal coerced dissenting clients with the disheartening prospect of starting anew with a different lawyer, if one could be found at all.

Viewed from an institutional standpoint, an important scholarly debate has now emerged.  The debate effectively asks how to allocate the uncharted conceptual terrain between conventional individual settlements and class settlements – the latter being largely off the table as viable settlement arrangements for mass torts after the Supreme Court’s Amchem and Ortiz decisions from the late-1990s.  Should the uncharted terrain, in effect, be allocated entirely to notions of individualized client consent drawn from the ancestral past of tort litigation in conventional one-on-one disputes?  Or is the challenge for the law today better understood in terms of a search for a hybrid conceptualization of consent, in keeping with the position of arrangements like the Vioxx deal between notions of private contract and public law, not at the end point of the former?

Several new additions to the torts literature point in various ways toward such a hybrid conception, building on a 2008 article by Samuel Issacharoff.  In a forthcoming article on the Vioxx settlement as well as developments in the constitutional law of punitive damages, I offer my own suggestion that hybridization is likely to be watchword for the future.  In a thoughtful new essayAlexandra Lahav challenges the notion that the “rough justice” associated with non-class-action aggregate treatment of mass torts marks a meaningful deviation from tort law in operation today.  And, in one of the latest in an important series of articles, Elizabeth Chamblee Burch draws on interdisciplinary research to envision a more ground-up, less lawyer-centered conception of collective client identity in the mass tort context.

The proverbial game is on over the future of mass tort claims resolution.  Its outcome promises to bear significantly on how the law translates the rich concepts of tort doctrine into practical operation.

- Richard A. Nagareda
Professor and Director, Cecil D. Branstetter Litigation & Dispute Resolution Program,
Vanderbilt University Law School

March 22, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, March 18, 2010

Introducing Guest Blogger Richard Nagareda

Nagareda   Monday's guest blogger is Richard Nagareda.  Nagareda is Professor of Law and Director of the Cecil D. Branstetter Litigation Dispute Resolution Program at Vanderbilt University Law School. 

Nagareda joined the Vanderbilt faculty in 2001.  Before joining the Vanderbilt faculty, Nagareda taught on the faculty of the University of Georgia School of Law and as a visitor at the University of Texas School of Law. Before joining the academy, Nagareda clerked for Judge Douglas H. Ginsburg, of the D.C. Circuit, and practiced in the Office of Legal Counsel of the United States Department of Justice and as an associate at Shea Gardner in Washington, D.C.

At Vanderbilt, Nagareda teaches courses on evidence and complex litigation and a year-long seminar for third-year students on the civil litigation system. He has been recognized with the Hall-Hartman Award for Excellence in Teaching, an award based on students' votes, most recently in 2009, and he held the Tarkington Chair for Teaching Excellence, a three-year appointment, from 2006-09.

Nagareda's recent scholarship explores the impact of class action lawsuits on the pursuit of legal rights. In 2003, he was appointed as Associate Reporter for the American Law Institute project on Principles of the Law of Aggregate Litigation. His scholarly works are too numerous to list.  Recent work includes Mass Tort in A World of Settlement (U. Chigao Press 2007), "Aggregate Litigation across the Atlantic and the Future of American Exceptionalism,” 62 Vanderbilt Law Review 1 (2009), Class Certification in the Age of Aggregate Proof,” 84 New York University Law Review 97 (2009), Class Actions in the Administrative State," 75 University of Chicago Law Review 603 (2008), and "Class Settlements under Attack," 156 University of Pennsylvania Law Review 1649 (2008) (with Samuel Issacharoff). 


March 18, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, March 15, 2010

Henderson on "The Moral Foundation of Tort"

Up until recently I was agnostic on the question of whether tort law reflects ends-in-themselves moral values or is simply a positive manifestation of the instrumental means with which to achieve politically-selected social welfare ends.  I am now persuaded that the first of these is correct—tort law rests on a noninstrumental moral base.  Because economic analysis offers plausible explanations of much of what tort law seeks to achieve, I am indebted to Ernie Weinrib (Deterrence and Corrective Justice, 50 U.C.L.A. L. Rev. 621) for explaining how, by relying on a conceptually sequenced argument, tort law can have a moral base and nevertheless embrace a deterrence-based implementation apparatus that is consistent with much of what law and economics has to say about tort.  Fairness principles trump efficiency when the two are at odds; but once fairness concerns are adequately addressed, tort law is free to pursue efficiency objectives.

    I reserve this “fairness at the core” assessment for the “regulatory” elements of substantive law—tort law, criminal law, individual constitutional rights, and the like.  Regarding “constitutive” or “enabling” elements of substantive law—contracts law, property law, business organizations, constitutionally-established structures of government—I take a positivist instrumental view.  The substantive rules governing these areas supply the practical means by which individuals and groups are empowered to achieve their own, sometimes politically chosen, ends and goals.  They do not, as does tort, primarily focus on what is right or wrong.  Of course, constitutive areas of law contain regulatory, fairness-based sub-rules within them.  For example, contracts law contains limited moral-based elements of tort.  But I believe that this constitutive/regulatory distinction holds up reasonably well under analysis.

    As for the legal system viewed more broadly, I adopt a positivist, means-to-human ends approach.  I am indebted to Lon Fuller (The Morality of Law) for his distinction between the external and the internal moralities of law.  (Internal moral principles apply to the processes by which law guides human conduct.)  Fuller, who was still teaching at the Harvard Law School when I was a student in the early 1960s, took a natural-law, fairness-based view of internal morality; but he adopted a positivist, means-to-ends view of the external morality of law.  In any event, I agree with Fuller that the proper positivist view of our legal system is not one based on a manifested (even if legitimated) threat of force or exercise of social power, but rather is based on cooperative efforts to achieve shared social purposes. 

    Thus, I now believe that the law of torts imbedded within our legal system is based on, and at its core reflects, noninstrumental principles of fairness—relational notions of right and wrong.  I have not worked out exactly what those notions are—I probably don’t have the necessary skill-set and I may not live long enough to make peace with it.  But from here on out I prefer to view tort cases as essentially morality plays rather than as merely efforts to assist in the efficient allocation of scarce resources.  Weinrib has convinced me that in many (most?) instances tort cases can be both; but at its core, tort law’s purpose is to help to define what is just, right and fair.

- James A. Henderson, Jr.   
Cornell Law School 
Frank B. Ingersoll Professor of Law 


March 15, 2010 in Guest Blogger | Permalink | Comments (1) | TrackBack (0)

Thursday, March 11, 2010

Introducing Guest Blogger James A. Henderson Jr.

Henderson Monday's guest blogger is James A. Henderson, Jr.   Henderson is the Frank B. Ingersoll Professor of Law at Cornell Law School, where he teaches Torts and Products Liability.

After he received both an LL.B and LL.M from Harvard Law School, Henderson clerked for the Hon. Warren L. Jones of the U.S. Court of Appeals for the Fifth Circuit. He then taught at Boston University Law School for twenty years before joining the Cornell Law School Faculty in 1984. His scholarship and teaching addresses theoretical, practical, and process concerns in the fields of products liability and torts. In addition to serving as the co-reporter of the American Law Institute's revision of the products liability portions of the Restatement of the Law of Torts from 1992-1998, Henderson has testified extensively on torts, products liability and insurance before the Senate and Congress, as well as before numerous state legislatures. He has published dozens of articles on torts and products liability.  He is also the author or co-author of several books including The Torts Process (Aspen 7th ed. 2007) and Products Liability: Problems and Process (Aspen 6th ed. 2008). He currently serves as a Special Master in the World Trade Center "first responders" litigation in the U.S. District Court for the Southern District of New York." 



March 11, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Monday, March 8, 2010

McCann on “Game Presentation” and Torts: The Unappreciated Dangers of Flying Hotdogs

Sluggerrr-mascot   Courts generally turn to industry standards for determining the duty owed by owners and operators of professional sports facilities to their customers.  They also find that people attending sporting events assume many risks of injury posed by on-field activities.

The classic example of those points can be found in Major League Baseball, and specifically through application of the “baseball rule” to injuries caused by foul balls.  This not-so-creatively worded rule provides that ballpark operators need only provide ordinary screening for the area around home plate and other areas where fans may be uniquely susceptible to injury.  


Even if those operators fail to provide such screening, they can still argue the affirmative defense of assumption risk—namely, that fans are aware that balls and even bats can fly into the stands during a game.  Not only should common sense encourage fans to pay attention—so the thinking goes—but the public address announcer frequently reminds them to do so.  Also, their tickets usually contain a waiver, albeit in tiny font and in legalese, on the back.


Although the baseball rule and assumption of risk doctrine do not always preclude liability for ballpark operators, they often do.  Fans injured by foul balls have a poor record suing teams and stadium operators.  For liability to arise, there normally has to be an unusual set of facts, such as view-obstructing stadium construction, that contributed to the fan’s injury.


But what about injuries caused by on-field activities that, though sponsored by the team/stadium operators, are not actually “part of the game”?  More specifically, what about injuries caused by promotional activities and entertainment that occur between play and that sometimes involve fans trying to catch an item, such as a T-shirt, launched by a stadium employee? 


If you’ve been to an NBA game recently, you know what I’m talking about it.  The NBA has a name for it: game presentation.  The basic gist of game presentation, which has become a key marketing strategy, is to entertain fans at all times during a game, including when the game isn’t being played (e.g., timeouts; stoppages in play).  For younger fans, or those with short attention spans, game presentation can be great fun; for others, it can seem distracting and stupid.  There are dance routines.  Tricks by mascots.  Circus performers who try to integrate basketball into their routine.  As someone who has been to many Boston Celtics games over the last 25 years, I can’t emphasize how different games are today from those during the Larry Bird era.  


Frequently game presentation provides opportunities for fans to receive “stuff” hoisted at them by on-field personnel.  Take the mascot.  Some teams will use its mascot to point at people seated in a particular section and then, using a slingshot or air gun, shoot an item up to those people, who will jockey for position to catch it.  It’s a seemingly harmless and fun affair, though fans sometimes push each other for the thrill of catching an item worth, at most, 10 bucks hoisted at them.  Also, there’s no real opportunity for fans sitting there to “opt out”, other than, perhaps, oddly requesting (and being able to purchase) a seat that mascots cannot reach. 


Game presentation is not unique to the NBA.  It’s also found in Major League Baseball.  And as of last week, it’s generated a torts lawsuit.  In Coomer v. Kansas City Royals, John Coomer, who was sitting six rows up from the third base dugout during a Royals game last September, became the victim of a flying hotdog.  Literally.  According to Coomer’s complaint, the Royals’ mascot, Slugger, used an air gun to shoot hotdogs into the crowd during a break in the game.  Slugger, who was standing atop the third base dugout, then put down the gun and started throwing hotdogs from behind his back, so he apparently did not know where they were going.


We all know the expression, “It’s all fun and games till someone loses an eye.”  Who would imagine that a hotdog could cause such an injury?  According to Coomer, a hotdog indeed caused him a serious eye injury.  He claims that he was a mere “few feet away” from Slugger when Slugger’s errant, behind-the-back throw led to Coomer’s left eye getting hit by a hot dog.  Coomer suffered a detached retina and other eye damage.  Coomer’s complaint doesn’t address how he could have been seated six rows up from third base yet only a “few feet” from Slugger, who was atop the third base dugout (maybe Slugger ventured up into the crowd or Coomer took a stroll down to field level, though the complaint doesn’t state so).


Coomer claims that as an invitee, he was owed the highest protection of safety, and that the Royals, through their employee—the unnamed artist performing as Slugger—failed to exhibit the requisite care.  Coomer has also filed a battery claim.


The baseball rule, which was premised on dangers from actual baseball play, arguably should not apply to game presentation, which is about entertaining when play does not occur. 


As to assumption of risk, it would seem that Coomer had some awareness of Slugger’s antics; Slugger began with an air gun and then turned to throwing.  If Coomer was indeed seated six rows up, it would seem that had he been paying attention, there was a good chance he could have reacted. 


But should fans be obligated to pay attention when the game isn’t being played?  Coomer may have bought a game ticket to watch a game, not to watch Slugger or deal with Slugger’s hot dog firing/throwing.  Put another way, should games be viewed as one event—from the first pitch to the last, from tipoff to the final buzzer—or are they really two events, one being what takes place during the actual plays, the other being what happens between plays?


- Michael McCann

Associate Professor of Law

Vermont Law School

March 8, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Thursday, March 4, 2010

Introducing Guest Blogger Michael McCann

072408-mcannFaculty   Michael McCann is an Associate Professor of Law at Vermont Law School, where he teaches sports law, antitrust, torts, and sales.  He also teaches a sports law reading group at Yale Law School.

McCann is also a Legal Analyst for Sports Illustrated and the “Sports and the Law” Columnist on  He has received recognition from The American Lawyer and the Newhouse School of Public Communications for excellence in journalism.

McCann is also Co-Founder of the Harvard Law School Project on Law and Mind Sciences and the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where he was an Assistant Professor of Law between 2005 and 2008 and where he now teaches a sports law class every summer. During his three-year tenure at Mississippi, Professor McCann received the school's most prestigious teaching awards, including the Professor of the Year Award in 2007 and 2008 and the Shirley Norwood Jones Faculty Award, also in 2008.

In the fall of 2008, McCann was a Visiting Associate Professor of Law at Boston College Law School, where he taught sports law and administrative law, and served as Chair of the AALS Section on Sports and the Law.

McCann has placed scholarly pieces in the Yale Law Journal, Wisconsin Law Review, and the Connecticut Law Review, among other publications. His most recent article is American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 YALE LAW JOURNAL 726 (2010).

Prior to becoming a law professor, McCann served as counsel to college football star Maurice Clarett in his lawsuit against the National Football League and its age eligibility rule. He also served as a Visiting Researcher at Harvard Law School and Legal Counsel to U.S. Congressman Marty Meehan.

McCann has been frequently interviewed on television programs, including HBO's Bob Costas Now, CNN's The Situation Room with Wolf Blitzer, American Morning, Headline News, and Glenn Beck Show, Fox News' Fox Live Desk, and CNBC's Morning Call and Power Lunch.  He is also a legal correspondent for the nationally syndicated Dan Patrick Show.


March 4, 2010 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, March 1, 2010

Simons on "What can tort law (and tort law scholars) learn from criminal law (and criminal law scholars)?"

As someone who has regularly taught, and written extensively, in both the fields of tort law and substantive criminal law, I thought I might suggest a few ways that criminal law doctrine and scholarship could helpfully inform tort law doctrine and scholarship.



The doctrines and plausible justifications of tort and criminal law differ significantly, to be sure.  But I want to focus on some opportunities for cross-fertilization.  So here goes.



1.     The distinction between justification and excuse

Modern criminal law doctrine distinguishes defenses of justification from defenses of excuse.  Tort law doctrine does not explicitly do so, but perhaps it should.



Suppose D1 intentionally strike V1, in order to prevent V1’s use of unlawful force against D1.  The privilege of self-defense will justify D1’s otherwise criminal behavior.  Now suppose D2 intentionally punches V2 and V3 in order to comply with coercer C’s demand that he do so (or else C will intentionally strike D2).  The privilege of duress might excuse D2’s otherwise criminal behavior, but arguably would not justify it (insofar as D2 has caused a greater harm or evil than he avoided by submitting to the threat).  Justified actors act permissibly, or even laudably.  Excused actors act impermissibly, but we cannot fairly blame them, in light of the difficult circumstances they confront or their unusual personal qualities.


Interestingly enough, tort law pays little heed to this distinction.  This is in part because tort law is less tolerant of excuses than is criminal law: insane defendants (who would be excused in criminal law) are still responsible for their torts, and those with below-average mental capacities are held to the higher standard of a person with normal capacities.  But what does tort law say about excuses based on extraordinary difficult external pressures and circumstances (such as duress) rather than on unusual personal incapacities?



The “emergency doctrine” does permit some consideration of the difficulty circumstances that a defendant encounters.  Suppose motorist D3, suddenly faced with a child immediately ahead in the path of his car, must decide whether to swerve to the left, towards motorist V4, or to the right, towards a concrete barrier; he swerves to the left, harming V4.  In V4’s lawsuit, the court may instruct that the jury should consider the emergency circumstances in deciding whether D3 was negligent.  But is the ultimate test whether D3 made the right decision in light of the facts available to him and the brief time for making a decision?  (This amounts to a form of ex ante justification.)  Or is the test instead whether, even if he made the wrong decision from an ex ante perspective, it is unjust to fault him in light of his understandable feeling of panic or an understandable instinct for self-preservation?  (This amounts to an excuse.)

If it is proper for tort doctrine to reject excuses of mental incapacity, shouldn’t tort doctrine also reject excuses of external circumstances?  But the issue is almost never directly addressed in tort doctrine or commentary.  (With respect to intentional torts and the earlier examples of D1 and D2, the Second Restatement recognizes the justifications of self-defense and necessity, but it does not recognize an independent excuse of duress.)

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March 1, 2010 in Guest Blogger, Scholarship | Permalink | Comments (2) | TrackBack (0)