Wednesday, August 29, 2018
Nora Freeman Engstrom has posted to SSRN When Cars Crash: The Automobile's Tort Law Legacy. The abstract provides:
Everyone understands that the invention of the automobile has had a profound effect on daily life in America. It has transformed our workplaces, altered our neighborhoods, and radically changed our environment. But cars have never been perfectly safe, and, as the years have passed, injuries and fatalities have mounted. This Article contends that, just as motor vehicles have remade our culture, these injuries and deaths — some 3.5 million fatalities and counting — have catalyzed fundamental changes in the contours, purposes, and limits of our law.
Tuesday, August 28, 2018
Tim Lytton has posted to SSRN Exposing Private Third-Party Food Safety Auditors to Civil Liability for Negligence: Harnessing Private Law Norms to Regulate Private Governance. The abstract provides:
In many industries, companies rely on private third-party audits to monitor their suppliers’ adherence to various standards. These audits are frequently paid for by the entity being audited, which creates a conflict of interest that incentivizes auditors to reduce the burden of audits by cutting corners and inflating audit scores. This article presents a case study of food safety audits in the fresh produce sector. It explains why large commercial buyers of fresh produce rely on private third-party audits paid for by growers despite the conflict of interest, and it argues that exposing auditors to civil liability for negligence would improve the rigor and reliability of these audits. The article concludes with a more general analysis of how the private law norms of duty and reasonable care imposed by civil liability can improve private governance.
Monday, August 27, 2018
Danielle Keats Citron has posted to SSRN Sexual Privacy. The abstract provides:
Those who wish to expose, control, and distort the identities of women, minorities, and minors routinely do so by invading their privacy. People are secretly recorded in bedrooms and public bathrooms, and “up their skirts.” Victims are coerced into sharing nude photographs and filming sex acts under the threat of public disclosure. People’s nude images are posted online without permission. Machine-learning technology is used to create digitally manipulated “deep sex fake” videos that swap people’s faces into pornography.
At the heart of these abuses is an invasion of sexual privacy—the specific set of identity-enabling and equality-protecting rules and norms that protect access to and information about our bodies; intimate activities; and gender and sexual identities. Invasions of sexual privacy coerce visibility and invisibility, undermining identity formation, human dignity, and equal opportunity. More often, marginalized and subordinated communities shoulder the abuse.
This Article explores how sexual privacy works, and should work. It shows how the efficacy of traditional privacy law is waning just as digital technologies magnify the scale and scope of the harm. We need a comprehensive approach to sexual privacy that includes legislation and updated privacy tort law. This would allow us to see the structural impact of sexual privacy invasions and prompt us to consider the privacy-enhancing and privacy-invading aspects of market efforts.
Thursday, August 23, 2018
Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of violations, critics of immunity have called for its abolition. This article rejects both of these approaches. My thesis is that the availability of qualified immunity should depend on an assessment of costs and benefits, which vary depending on context. A better approach is to retain the basic doctrine but to identify categories of cases in which immunity should be denied, and others in which it should be strengthened.
Tuesday, August 21, 2018
Jill Wieber Lens has posted to SSRN Tort Law's Devaluation of Stillbirth. The abstract provides:
In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth. This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive bias associating stillbirth with women. Historically, stillbirth only appeared in women’s claims for emotional distress. Instead of recognizing her child’s death, courts treated, and some courts continue to treat, stillbirth as just as a physical manifestation of the woman’s emotional distress. Even when modern courts recognize stillbirth as the death of a child, they still devalue that injury by characterizing the child as a nameless, genderless “fetus.” Also historically, courts were resistant to claims based on relational injuries, another injury stereotypically associated with women. Even though prenatal attachment theory demonstrates a parent-child relationship is lost in stillbirth, some courts are especially reluctant to recognize the relational injury in the context of death before birth. The cognitive bias associating stillbirth with women has also stunted the development of tort recourse for fathers, as it also will for non-biological parents. Fathers, the “forgotten bereaved,” are sometimes denied a claim or given a more limited claim. The remedy for this devaluation is a wrongful death claim for the death of a child—not just a fetus—available to both parents, including recovery for the relational injury. Tort law must also guard against possible undervaluation of the parents’ injury based on the supposed replaceability of children or the presence of other living children, and against damage caps’ mandatory undervaluation of the parents’ injury. The Article also explains how these reforms are supported by tort law theories, and explains that the wrongful death claim should be available for all stillbirths, not depending on viability. Last, the Article necessarily explains that tort law’s proper recognition of stillbirth poses no threat to the legality of abortion.
Monday, August 20, 2018
Religious and business conservatives can make for uneasy allies on a number of issues. Tort reform, advocated by business conservatives, has not usually been such an issue. In Arkansas, however, the Family Council Action Committee, a conservative Christian group, is actively opposing the ballot measure to impose new limits on tort damages:
A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor.
It will be interesting to see if this spills over to other states. The News Tribune has the story.
Friday, August 17, 2018
Keith Hylton has posted to SSRN Information Costs and the Civil Justice System. The abstract provides:
Litigation is costly because information is not free. Given that information is costly and perfect information prohibitively costly, courts will occasionally err. Finally, the fact that information is costly implies an unavoidable degree of informational asymmetry between disputants. This paper presents a model of the civil justice system that incorporates these features of the real world and probes its implications for compliance with the law, efficiency of law, accuracy in adjudication, trial outcome statistics, and the evolution of legal standards. The model’s claims are applied to and tested against the relevant empirical and legal literature.
Tuesday, August 14, 2018
Monday, August 13, 2018
Last year, Kentucky enacted a law requiring medical malpractice claimants to go through a panel procedure (review by health care professionals) prior to obtaining a jury trial. The process consumes nine months and the outcome is admissible, but not binding, at the subsequent trial. Last week, the Kentucky Supreme Court heard arguments over the constitutionality of the law. Plaintiffs claim the law obstructs the right to a jury trial, in violation of the state constitution. The Courier Journal has the story.
Wednesday, August 8, 2018
Tuesday, August 7, 2018
Monday, August 6, 2018
Intersentia's "The European Convention on Human Rights as an Instrument of Tort Law" by Stefan Somers will be available in October. From blurb:
Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons.
An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights.
The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system.
Friday, August 3, 2018
For several years, there has been a saga in Arkansas to get a tort reform measure on the ballot. The measure would cap non-economic damages, punitive damages, and attorneys' fees. Last month, I reported on the most-recent event, a former judge sued to block the measure on the basis that it unconstitutionally combines several proposals and also violates separation of powers. On Tuesday, a judge refused to grant a preliminary injunction because the plaintiff-former judge could not demonstrate irreparable injury if the ballot went forward. The case remains to be decided on the merits. The Times Record has the story.
Thursday, August 2, 2018
The heartbalm torts--torts used to soothe a spouse's heart if cheated upon--have been abrogated in most jurisdictions. Six jurisdictions, however, retain some version of alienation of affections, criminal conversation, or both: Hawaii, Mississippi, New Mexico, North Carolina, South Dakota, and Utah. In these states, a cheated-upon spouse can sue the interloper in the marriage, not the other spouse. North Carolina makes the most use of these torts, and this week a man was hit with an $8.8M verdict for conducting a 16-month affair with another man's wife. Most of the verdict was in punitive damages, but $2.2M was in compensatory damages. When the plaintiff learned of his wife's infidelity, his business lost revenue and a valued employee (his wife). CNN has the story.
Tuesday, July 31, 2018
Jill Fraley has posted to SSRN Liability for Unintentional Nuisances. The abstract provides:
The Second Restatement of Torts aligned private nuisance law squarely with the law of torts by altering the elements of liability to require 1) intent, 2) negligence, or 3) abnormally dangerous activities. The Restatement then concluded: “an actor is no longer liable for accidental interferences with the use and enjoyment of land.”
Nearly forty years later, textbooks tend to teach the Restatement approach, but the majority of courts have never adopted this switch in the intent requirement for nuisance. In a number of states, accidental interferences remain actionable under nuisance law. The old approach to nuisance is not dying away quietly. In fact, in the new millennium courts have often gone to some trouble to explain and emphasize their resistance—and for good reason. This article defends the positions of those courts and argues that the Restatement got it wrong.
While the Restatement was correct that there had been “confusion” in the case law, the confusion was not about the conduct versus the interest invaded, but rather the muddling of the law of negligence with the law of nuisance. This article argues that nuisance was historically unique in tort law, because of its special role in protecting property rights. In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Restatement’s change then diminished our rights to private property.
Robert Chesney & Danielle Keats Citron have posted to SSRN Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security. The abstract provides:
Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.
While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well.
Our aim is to provide the first in-depth assessment of the causes and consequences of this disruptive technological change, and to explore the existing and potential tools for responding to it. We survey a broad array of responses, including: the role of technological solutions; criminal penalties, civil liability, and regulatory action; military and covert-action responses; economic sanctions; and market developments. We cover the waterfront from immunities to immutable authentication trails, offering recommendations to improve law and policy and anticipating the pitfalls embedded in various solutions.
Monday, July 30, 2018
Tom Baker & Charles Silver have posted to SSRN How Liability Insurers Protect Patients and Improve Safety. The abstract provides:
Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey like this one cannot resolve. But, as we show, insurers make serious efforts to reduce their losses by encouraging and helping health care providers to do better in at least six ways. (1) Insurers identify subpar providers in ways that provide the opportunity for other institutions to act. (2) Insurers provide incentives for providers by charging premiums that are based on risk and by refusing to insure providers who are too high risk. (3) Insurers accumulate data for root cause analysis. (4) Insurers conduct loss prevention inspections of medical facilities. (5) Insurers educate providers about legal oversight and steps that they can take to manage their risks. (6) Finally, insurers provide financial and human capital support to patient safety organizations.
Wednesday, July 25, 2018
Marta Infantino and Eleni Zervogianni are editors of "Causation in European Tort Law," available from Cambridge University Press. From the blurb:
Through a comprehensive analysis of sixteen European legal systems, based on an assessment of national answers to a factual questionnaire, Causation in European Tort Law sheds light on the operative rules applied in each jurisdiction to factual and legal causation problems. It highlights how legal systems' features impact on the practical role that causation is called upon to play, as well as the arguments of professional lawyers. Issues covered include the conditions under which a causal link can be established, rules on contribution and apportionment, the treatment of supervening, alternative and uncertain causes, the understanding of loss-of-a-chance cases, and the standard and the burden of proving causation. This is a book for scholars, students and legal professionals alike.
Tuesday, July 24, 2018
Richards Lewis has posted to SSRN Strategies and Tactics in Litigating Personal Injury Claims: Tort Law in Action. The abstract provides:
This article reveals some of the tactics which lawyers may use when conducting personal injury litigation. The research is empirically based by being drawn from structured interviews with a cross section of practitioners. This qualitative evidence helps to place the rules of tort in a wider context and suggests that tactical considerations may affect the outcome of individual cases irrespective of their legal merits. A range of strategies are considered here to illustrate how they may be used at different points during the litigation. In addition, the article updates our understanding of the compensation system by considering the practitioners’ responses in the light of the major changes made to this area of practice in recent years. It reveals how negotiation tactics have developed since research in this area was last carried out. Overall the article adds to a very limited literature dealing with negotiation and settlement of personal injury claims. The picture of litigation painted here runs counter to the misleading image of individualised court-based justice that is often portrayed as the defining characteristic of tort law.
Monday, July 23, 2018
On July 26, 2017, a ride at the Ohio State Fair catastrophically failed, killing one, seriously injuring four, and injuring 22 others. The "Fire Ball," which has six "arms" that spin riders around, had one arm crack off due to rust. It was later discovered that all six arms had significant corrosion. Ohio Department of Agriculture inspectors had reviewed the ride a few hours prior to the incident. State inspectors, however, have a form of qualified immunity that protects them from liability for negligence. The ride manufacturer is protected by a statute of repose. Several settlements have been reached, including an approximate $1.3M settlement on behalf of the 18-year-old man who was killed. Those settlements are with the ride operator, which has an aggregate $10M insurance policy in place, and a private company that inspected the ride. The Columbus Dispatch wrote a great update piece yesterday (you may need to sign in to obtain access).