TortsProf Blog

JOTWELL Torts: Wriggins on Gold on Mandatory Landlord Insurance

At JOTWELL, Jenny Wriggins reviews Allyson Gold's Insuring Justice.

Shavell on Causation

Steven Shavell has posted to SSRN An Alternative to the Basic Causal Requirement for Liability Under the Negligence Rule.  The abstract provides:

The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to be found liable for harm done in a car accident, it must be shown that the accident would not have happened if the driver had driven at a reasonable speed. The main point made here is that this basic causal requirement may be difficult to satisfy and hence may interfere with the discouragement of negligence. Therefore, an alternative and usually easier-to-meet causal requirement is proposed — that the harm would not have occurred if the party had not been engaged in his activity (if the driver had not been driving).

Abraham on the Insurability of Civil Fines and Penalties

Ken Abraham has posted to SSRN The Insurability of Civil Fines and Penalties.  The abstract provides:

In the last few decades, administrative regulation at both the federal and state levels has much more frequently than in the past deployed a distinctive weapon in its remedial arsenal: the imposition of a civil fine or penalty on actors who violate a regulatory dictate or prohibition. As the imposition of such civil fines and penalties has become more common, and as their magnitude increases, a new issue has begun to arise: whether insurance against liability for civil fines and penalties is permissible as a matter of public policy. Only a few jurisdictions have addressed the question at all thus far, and even these decisions do not have definitive breadth; they can easily be understood to leave a number of issues open.

The Article characterizes the different sources of civil liability for regulatory fines and penalties, develops the criteria that should be relevant to the insurability of such liability, canvasses the sparse case law and statutory law that applies directly to the issue, and then examines the closest analogy to the issue – the insurability of liability for punitive damages -- exploring the ways that different states, with different rules governing the insurability of punitive damages, could address the insurability of liability for civil fines and penalties. Finally, the Article analyzes the different litigation contexts in which the insurability issue may arise, including the collateral effects that settlement of claims for, and assessment of, fines and penalties may have on policyholders’ coverage rights and insurers’ coverage defenses. My conclusion is that a contextual approach that would take into account the nature of the violation generating the civil fine or penalty, and the applicable state’s existing law on analogous issues (mainly the insurability of liability for punitive damages) is likely to be adopted. The result would be that liability for certain fines and penalties will be insurable, but that liability for others will not be.

ALI Announces Restatement of Medical Malpractice

It is being separated from the Restatement of Miscellaneous Provisions (formerly Concluding Provisions).  Mark Hall will be a Reporter, alongside Nora Freeman Engstrom and Mike Green.  The announcement is here.

Amicus Brief in NSSF v. Platkin

Scholars of tort law and statutory interpretation filed an amicus brief  in the Third Circuit appeal of NSSF v. Platkin—a case brought by the firearms industry’s trade association against the Attorney General of New Jersey to prevent enforcement of New Jersey’s new firearms nuisance statute. The industry argues that the Protection of Lawful Commerce in Arms Act bars lawsuits under the new law. The legal scholars’ brief argues that New Jersey’s law is precisely the type of state regulation of gun sales contemplated by PLCAA’s predicate exception.  The brief is here.

Rabin on Corporate Responsibility in Mass Disaster Cases

Bob Rabin has posted to SSRN Corporate Responsibility in Mass Disaster Cases.  The abstract provides:

In this essay, I focus on corporate responsibility in tort for single-event mass disasters, such as toxic leaks, wildfires, and oil spills. Analytically, the singular character of these events is evident in at least two prominent ways. First, stand-alone financial loss is often the crux of the harm suffered in single-event disasters. And second, the prospect of unbounded liability — irrespective of whether the harm is purely economic loss or harm to persons or property — is frequently a benchmark to reservations about recognizing responsibility in these scenarios. My discussion is guided by these themes.

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.

Margoni & Brown On Jurors, Mental States, and Breach

Francesco Margoni & Teneille Brown have published Jurors use mental state information to assess breach in negligence cases, available here.

Thanks to Sheila Scheuerman for the tip.

Perry on Harmful Precautions

Ronen Perry has posted to SSRN Harmful Precautions.  The abstract provides:

The time-honored proverb “one person’s loss is another person’s gain” captures a universal truth: the misfortune of some may be a blessing to others. Surprisingly, this bit of conventional wisdom has been lost in the scholarly discussion of “the most central idea of many first-year torts classes today” (Zipursky, Sleight of Hand, 2007)

According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (negligently) towards another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent. While law and economics theorists have advocated and courts have often embraced adjustments to both sides of this algebraic formulation, the idea that the expected loss must be compared with the cost of precautions for the potential injurer has remained mostly uncontested. The Article unveils an overlooked yet fundamental flaw in the orthodox understanding and application of the Hand formula, namely the exclusion of the negative externalities of risk-reducing precautions from the analysis. Failing to take precautions typically increases the risk of harm to potential victims (“one person’s loss”) but may also confer benefits on the same people or others (“another person’s gain”). Taking additional precautions might therefore have negative externalities (the lost benefits to people other than the potential injurer). The Article shows that case law and academic literature have mostly ignored these repercussions, advocates their inclusion in the analysis of reasonableness, and explains how and to what extent this can be achieved.

The analysis unfolds as follows. Part I presents the origins of the traditional definition of reasonableness and demonstrates its entrenchment in legal practice and scholarship. It highlights the overlooked feature that has characterized this definition for almost a century: in assessing reasonableness, courts and scholars have consistently compared potential victims’ expected harm with the cost of prevention for the potential injurer, regardless of the negative impact of each precautionary measure on others.

Part II lays the theoretical foundations for the proposed legal modification. It first ascertains the most compelling normative rationale for the traditional definition of reasonableness, namely economic efficiency. It then shows that courts and scholars have regularly endorsed or advocated adjustments to the traditional definition when they realized that it would better serve its underlying goal as a result.

Part III argues that the legal reality depicted in Part I must be changed as per the insights outlined in Part II. It explains that ignoring the costs that precautionary measures impose on people other than the defendant in the assessment of reasonableness might lead to over-deterrence. The economic rationale thus calls for their inclusion in the analysis, as an additional adjustment to the Hand formula. Part III then clarifies whose costs must be considered, explains how these costs should be handled on the legal-conceptual level, and contends that they should be taken into account only if reasonably foreseeable.

Part IV shows that the negative externalities of precautions pose a much greater challenge under strict liability regimes, where traditional tools cannot ensure their internalization by potential injurers, and more radical solutions are required.

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

ALI coverage of Southwestern's symposium is here.

Hunter, Shannon & Amoroso on Teaching Palsgraf

Richard Hunter, John Shannon, and Henry Amoroso have posted to SSRN A Teaching Note on Negligence:  Palsgraf Revisited.  The abstract provides:

The case of Palsgraf v. Long Island Railroad (1928) provides an opportunity to engage students in a study of the cause of action termed negligence. The article explores issues relating to proof of negligence, defenses to negligence, and more directly, to the views of two American jurists, Benjamin Cardozo and William Andrews, relating to the issues of duty and causation—critical elements of proof.

JOTWELL Torts: Nolan on Giliker on Vicarious Liability

At JOTWELL, Donal Nolan reviews Paula Giliker's Vicarious Liability in the Common Law World.

Scordato on Causation

Marin Scordato has posted to SSRN Three Kinds of Fault:  Understanding the Purpose and Function of Causation in Tort Law.  The abstract provides:

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning at least three times, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate.

In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law more than in its dominant cause of action, negligence. Unsurprisingly, then, the causation requirement in tort law, and in negligence, has received a great deal of attention and analysis by both courts and commentators. Nevertheless, there remains a striking lack of consensus regarding the causation requirement, ranging from disagreement about the basic rationale for its existence as a part of the negligence claim to the more specific details of its doctrinal organization and articulation.

This article contributes to this ongoing discussion by offering an account of the causation requirement in negligence that places at its core the role that requiring causation plays in seeking to restrict the formal liability generated by the negligence tort to only those defendants who are deemed to be genuinely socially responsible for the harm suffered by the plaintiff. On this account, causation exists as part of the prima facie case for negligence, and in tort law more generally, as a means of insuring that all liable defendants possess a particular kind of fault with respect to the injury suffered by the plaintiff.

In developing this understanding of causation in negligence, the article identifies three different kinds of fault that a defendant might have regarding a given harm, demonstrates how a workable system of injury compensation could exist that requires only one, and explains how and why the causation requirement operates to insure that negligence liability is conditioned upon the presence of all three. Moreover, the article describes how the long-standing doctrinal features of the causation requirement, including its best-known exceptions, can best be understood as serving this underlying policy purpose. Additionally, suggestions for improving the effectiveness of causation doctrine that follow from this analysis are identified and discussed.

Erichson on Victim Civil Litigation and Corporate Accountability

Howard Erichson has posted to SSRN Victim Civil Litigation and the Elusive Goal of Corporate Accountability.  The abstract provides:

This article, written for the Clifford Symposium on Tort Law and Public Policy, examines the challenges of using victim civil litigation to hold corporations accountable for serious wrongdoing. First, it offers thoughts on defining the terms of victim civil litigation, corporate wrongdoing, and corporate accountability. Next, taking seriously the distinction between accountability grounded in punishing the wrongdoer and accountability grounded in providing redress to victims, it considers four major hurdles and how they interfere with each kind of accountability. It calls these hurdles the information asymmetry problem, the collective action problem, the Whac-a-Mole problem, and the agency problem. Using the Wells Fargo story as an illustration, it offers a view into treating victim civil litigation as one tool—important but insufficient on its own—for holding corporations accountable for serious wrongdoing.

Venook & Engstrom on Participatory MDLs

Todd Venook & Nora Freeman Engstrom have posted to SSRN Toward the Participatory MDL:  A Low-Tech Step to Promote Litigant Autonomy.  The abstract provides:

MDLs rely, for legitimacy, on individual client autonomy. That fact justifies a system that affords MDL litigants few, if any, formal safeguards, even while furnishing class members in class actions elaborate procedural protections. In this Chapter, we zero in on litigant autonomy in MDLs. We explain why autonomy matters, dissect its elements, and evaluate how much autonomy MDL litigants seem to have in practice. We then zoom in on a necessary component of litigant autonomy: information. As we explain, when it comes to the promotion and protection of litigant autonomy, effective communication—and the provision of vital information that it enables—is not sufficient, but it is necessary. Even well-informed litigants can be excluded from vital decision-making processes, but litigants, logically, cannot call the shots while operating in the dark.

With that background, we review some troubling evidence indicating that at least some MDL litigants felt confused and uninformed regarding their suits—and, in light of that evidence, we assess what MDL transferee courts are doing to keep litigants up-to-date and well informed. Here, we furnish the results of our own rigorous empirical analysis of court-run MDL websites, which are often extolled, including by judges, as a key venue for client-court communication. Unfortunately, our analysis reveals deep and pervasive deficits with respect to these sites’ usability and relevance. If this is where case-related communication is supposed to be happening, then litigant confusion is unsurprising. We close with several recommendations for courts seeking to harness simple technology to promote better court-litigant communication. We fully recognize: Improved MDL websites aren’t a panacea. But they might, however marginally, promote the autonomy interests of litigants—and light a path for future reform.

Tilley on the Sexism and the First Amendment

Cristina Tilley has posted to SSRN The First Amendment and the Second Sex.  The abstract provides:

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing full legal and cultural equality with men—were complicit in this effort because they scoffed at the domesticated version of womanhood shielded by protective speech torts like slander.

This Article begins by surfacing the deep architecture of nineteenth-century life and law, with its bright boundaries between public and private. When speech regulation was commonplace and the First Amendment slept, public law was free to punish government criticism in the public sphere—a distinctly anti-democratic phenomenon. At the same time though, women in the private sphere targeted by domestic gossip had generous remedies in private law—a distinctly empowering phenomenon. It then shows how, throughout the twentieth century, the ACLU urged the Supreme Court to treat all law as public law and all life as public life. Across this new public terrain, the group argued, speech regulation should be replaced with self-help in the form of muscular counterspeech. ACLU luminaries on the distaff side joined this campaign, convinced that women were on the cusp of full public citizenship. Because this cultural turn would give women status to counterspeak, they were certain the protection of remedial speech torts would grow obsolete.

Today it appears that the women of the ACLU fatally miscalculated. American law has adopted the premise that all can navigate the deregulated marketplace of ideas by marshaling ideas and intellect. But American culture clings to the preference for private womanhood, producing gendered consequences for female speech. Modern women who bring their ideas into the public sphere are just as likely to be refuted with attacks on their domestic status or sexuality as they are with intellectual rejoinders. Stripped of the private law that used to repel such threats, these women are left either to counterspeak in ways that aggravate their personal peril or to withdraw from the speech arena altogether. The Article contends the time has come to acknowledge the tax that speech law extracts from women, and to ask whether today’s expressive marketplace is fair or foul.

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.

St. Thomas (MN) Needs Visitor in Torts

The University of St. Thomas (Minneapolis) School of Law invites applications for at least two Visiting Professor positions at any faculty rank for either the 2023 Fall semester, the 2024 Spring semester, or the full 2023-24 academic year. 

We have specific curricular needs for first year Torts and Lawyering Skills; we will consider candidates’ interest in teaching additional courses in light of our other needs.  Applicants will be expected to teach two classes during a semester visit, and either three or four classes during an academic year visit.

UST Law’s commitments to scholarship, teaching, service, and community are inspired by its mission, which dedicates it, as a Catholic law school, “to integrating faith and reason in the search for truth through a focus on morality and social justice.” We welcome applicants of diverse races, ethnicities, geographic origins, gender identities, ages, socioeconomic backgrounds, sexual orientations, religions, work experience, physical and intellectual abilities, and financial means.

UST Law has been recognized for excellence in various ways  (see:https://www.stthomas.edu/law/about/rankings/):

1. #23 faculty scholarly impact (Sisk/Leiter methodology)
2. #1 in the nation for best practical training (National Jurist) 
3. #8 for “quality of student life” (Princeton Review)
4. #5 for state and local judicial clerkships (Princeton Review)

UST Law is located in the heart of downtown Minneapolis. The University of St. Thomas is the largest private university in Minnesota, with 10,000 undergraduate and graduate/professional students; eight colleges and professional schools (including schools of business, engineering, health, and others); and 55-plus graduate and professional degree programs.

Please submit a cover letter and CV online at http://www.stthomas.edu/jobs/, or contact Interim Associate Dean for Academic Affairs Lisa Schiltz, at [email protected]. Review of application materials will begin immediately and continue until the position is filled. 

Oral Argument in Gonzalez v. Google

...apparently did not go well, with several justices admitting they were confused.  The Court is being urged to narrow the protection offered by Section 230 of the Communications Decency Act.  CNN has the story.  

"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.