Tuesday, December 8, 2020
Alfred Yen & Matthew Gregas have posted to SSRN Liability Waivers and Participation Rates in Youth Sports: An Empirical Investigation. The abstract provides:
This article explores whether there is empirical support for the assertion that enforcing liability waivers signed by parents increases participation in youth sports. To the authors' knowledge, it is the first and only article to do so.
This inquiry is critically relevant to a sharp split in contract law. Youth sports providers typically condition a minor’s participation on a signed parental waiver of the minor’s ability to sue for negligence. There are many reasons to doubt the enforceability of such releases. They are contracts of adhesion, their terms might be unconscionable, and they expose minors to increased risk of injury. Nevertheless, states do not consistently invalidate these releases. Of states that have explicitly considered the question, roughly one-third enforce youth sports releases, and they do so for a very specific reason, namely a professed belief that enforcing youth sports releases increases youth sports participation. Thus, if enforcing youth sports releases does not actually increase youth sports participation, then the primary reason given for doing so evaporates.
Our article searches for empirical evidence by statistically analyzing a database constructed from a fifty-state survey of the law covering 1988-2014, high school sports participation numbers reported by the National Federation of State High School Associations over the same years, data from the National Center for Education Statistics, and data from the United States Census. We found no statistically significant relationship between enforcing youth sports releases and increased participation in high school youth sports.
Monday, December 7, 2020
Cathy Sharkey has posted to SSRN Holding Amazon Liable As a Seller of Defective Goods: A Convergence of Cultural and Economic Perspectives. The abstract provides:
Amazon’s e-commerce business, which offers a platform for third-party vendors, defies conventional categorization for products liability purposes. Professor Marshall Shapo’s conception of “tort law as a cultural mirror” sheds light on how products liability law has evolved so as to hold Amazon liable even as the seismic shift away from brick-and-mortar physical stores to the virtual marketplace has transformed the reasonable expectations of consumers. Holding Amazon liable is likewise supported by the economic perspective embodied in the “cheapest cost avoider” analysis; namely, that Amazon is best situated to take actions to minimize risks and prevent accidents from defective products. This convergence of cultural and economic perspectives and the emergence of a culturally specific norm of efficiency-as-responsibility in the context of the virtual marketplace, signals tort law’s ever moving march forward into the modern era.
Friday, December 4, 2020
Cathy Sharkey has posted to SSRN Modern Tort Law: Preventing Harms, Not Recognizing Wrongs. The abstract provides:
Part I of my review of John Goldberg and Benjamin Zipursky’s (GZ), Recognizing Wrongs (Harv. U. Press 2020) reframes the book as, first and foremost, a sustained critique of the law-and-economics, deterrence-focused view of tort law, rather than (as GZ set forth) the affirmative case for the “wrongs and redress” account of tort law. “Cheapest cost avoider” tort theory (as my chosen stand-in for instrumentalist, deterrence-based theories) plays the role of an antagonist, against which GZ construct their theory of wrongs and redress. Part II inverts the role of “cheapest cost avoider” as the protagonist of some of the most significant developments in contemporary tort law, focusing on its central role in the rise of strict products liability in tort and especially its extension to cover bystanders. Part III argues that law-and-economics deterrence-based theory holds the most promise for judges facing two primary challenges of modern torts: (1) containing modern risks at the cutting edge of the regulatory state; and (2) addressing widespread harms.
Wednesday, December 2, 2020
On Monday, Pennsylvania Governor Tom Wolf vetoed a bill that would have provided immunity to certain businesses, including schools, from COVID-19 lawsuits. Governor Wolf got it right, for reasons I explained in an earlier post:
Yale undergraduate Josh Czaczkes, Tom Baker, & John Witt have just finished a really interesting research project. Using a database run by Baker at Penn, the group determined that 80% of liability policies have coverage for losses for infection by virus. Only 20 of 100 policies had an exclusion. Thus, COVID-19 immunity would primarily benefit large insurers and not businesses, many of which are small. The group uses the finding to oppose immunity legislation. Their post is at Balkinization.
Moreover, the early cases are being won by defendants. See here and here. Plaintiffs are having trouble proving injury and, especially, causation. I have spoken to several plaintiffs' lawyers over the last few weeks, and they all say the same thing about COVID-19 cases. They are very wary of them, and would only take such a case under limited conditions. Specifically, I have heard from more than one firm that the injury would have to be death before it would be worth considering. I think immunity is unnecessary.
Tuesday, December 1, 2020
The European Group on Tort Law has published Prescription in Tort Law, edited by Israel Gilead and Bjarte Askeland and published by Intersentia. The blurb provides:
Prescription is a major legal defence that bars civil actions on a claim after the expiry of a certain period of time. Despite its far-reaching practical effects on litigation and on society at large, and the fact that it is the subject matter of pervasive legal reforms in many countries, the law of prescription (limitation of actions) is rarely discussed, analysed and compared.
To meet this challenge, this book canvasses in-depth the law of 16 selected jurisdictions (covering Europe, South Africa and the US jurisdictions) and extensively analyses in comparative perspective the elements of prescription (accrual of the cause of action, prescription periods, rules of suspension, renewal and extension and upper time limits), their interrelations, and the policy considerations (including economic analysis). Topics also covered include the notions of ‘action’, ‘claim’, and ‘cause of action’, subjective and objective prescription, statute interpretation and judicial discretion. The book introduces important insights into how the present law can be improved and, where possible, harmonised. While its main focus is the prescription of tort claims, the analysis, comparison and conclusions are highly relevant to most civil actions.
Prescription in Tort Law is the result of a three-year research project conducted by the European Group on Tort Law (EGTL) that brings together leading academics of the field. It is an invaluable resource for private lawyers.
With contributions by Bjarte Askeland (Bergen Appeal Court Judge, Norway), Ewa Bagińska (University of Gdańsk, Poland), Nina Baranowska ((formerly) University of Wrocław, Poland), Jean-Sébastien Borghetti (University Paris II Panthéon-Assas, France), Giovanni Comandé (Sant’Anna School of Advanced Studies, Italy), Eugenia Dacoronia (National and Kapodistrian University of Athens, Greece), Isabelle Durant (Université catholique de Louvain, Belgium), Israel Gilead (Hebrew University of Jerusalem, Israel), Michael D Green (Wake Forest University, United States), Ernst Karner (University of Vienna, Austria), Anne LM Keirse (Utrecht University, The Netherlands), Bernhard A Koch (University of Innsbruck, Austria), Frédéric Krauskopf (University of Bern, Switzerland), Piotr Machnikowski (University of Wrocław, Poland), Ulrich Magnus (University of Hamburg, Germany), Miquel Martín-Casals (University of Girona, Spain), Johann Neethling (University of the Free State, South Africa), Elena Occhipinti (University of Pisa, Italy), Ken Oliphant (University of Bristol, United Kingdom), Albert Ruda (University of Girona, Spain), Stefan Rutten (University of Antwerp, Belgium), Luboš Tichý (Charles University, Czech Republic), Vanessa Wilcox (European Law Institute, Austria) and Bénédict Winiger (University of Geneva, Switzerland).
Monday, November 30, 2020
George Mason Scalia Law School's Law & Economics Center (LEC), led by Donald Kochan, just hosted (virtually) "Civil Justice Fest." A number of topics are likely of interest to readers of the blog, and I provide links below.
Friday, November 27, 2020
Wednesday, November 25, 2020
Tuesday, November 24, 2020
Monday, November 23, 2020
John Witt has posted to SSRN Radical Histories/Liberal Histories in Work Injury Law. The abstract provides:
Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.
Friday, November 20, 2020
The deadline for filing claims against the Boy Scouts of America (BSA) in bankruptcy was this week, and nearly 90,000 claims were filed. That number is significantly higher than expected. Eventually, a compensation fund will be created for the victims. The very first case I started working on back in 1996 was on behalf of a sexual abuse victim against BSA and local organizations, and even then it was not a new story. ABC News has details.
Tuesday, November 17, 2020
Mark Geistfeld has posted to SSRN his book review of John Goldberg & Ben Zipursky's Recognizing Wrongs. Entitled Tort Law and Civil Recourse, the abstract provides:
In Recognizing Wrongs (Harvard U. Press 2020), Professors John Goldberg and Benjamin Zipursky defend their long-standing thesis that the primary purpose of tort law is to implement the principle of civil recourse, which “can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her” (p. 3). To provide an adequate account of tort law, the principle of civil recourse cannot simply describe the formal structure of tort liability; it must also explain the substantive nature of wrongdoing. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior that mistreated the plaintiff. Goldberg and Zipursky accordingly conclude that “the point of tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them” (p. 266).
The argument turns on mistreatment and the associated prohibition of injury-causing behavior, each of which is defined in problematic terms. Many tort rules function as forms of no-fault or strict liability, even when not expressly denominated as such. According to Goldberg and Zipursky, these rules are defined by an “unforgiving” behavioral standard not to cause injury that can be violated by even “conscientious and diligent actions” (p. 193). In addition to begging the question of why this behavior meaningfully mistreats the plaintiff, Goldberg and Zipursky do not address the implications of such a rule. On their account, the violation of any tort duty is prohibited. Insofar as one ought to avoid acting in a legally prohibited manner, dutyholders who cannot comply with an “unforgiving” behavioral obligation should avoid engaging in the risky activity altogether—an extreme obligation that would prevent most of us from driving automobiles. Something about this argument has gone awry.
As this Review shows, civil recourse readily accommodates an alternative interpretation of tort law that substantially limits the relevance of mistreatment, which in turn limits the importance of civil recourse to the remedial aspects of modern tort law. Although undoubtedly important, the redressive structure of tort liability does not supply the “point of tort law.” Goldberg and Zipursky depict tort law in a manner that is faithful to its historical origins but is now anachronistic. The role of mistreatment within the early common law stemmed from the customary norms that governed behavior in the state of nature. Lacking protection of a centralized government, individuals needed to defend their honor in order to ward off future attacks. Even in cases of accidental harm, suffering injury at the hands of another necessarily involved a form of mistreatment—a loss of honor—that entitled the victim to obtain compensation from the injurer, a form of interpersonal redress for mistreatment that functioned as a rule of strict liability. By enforcing these norms, the early common law was fully animated by the principle of civil recourse.
Over time, social conditions have changed. Physical security no longer depends on one’s honor. To protect individuals from physical harm, modern tort law focuses on the prevention and compensation of injury. Mistreatment matters only insofar as it involves highly culpable wrongdoing—a distinctive threat to physical security redressed by punitive damages. Outside of this extraordinary remedy, mistreatment does not substantively shape the tort rules governing accidental physical harms. Tort liability still satisfies the principle of civil recourse—plaintiffs receive redress from defendants who have violated their tort rights and thereby wronged them—but the primary purpose of modern tort law is defined by its substantive rights and correlative obligations, not by the remedial structure of civil recourse.
Monday, November 16, 2020
Betsy Grey & Samantha Orwoll have posted to SSRN Tort Immunity in the Pandemic. The abstract provides:
A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.
Thursday, November 12, 2020
Betsy Grey has posted to SSRN Sex-Based Brain Differences and Emotional Harm. The abstract provides:
Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.
This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.
Tuesday, November 10, 2020
Andrew Gold has posted to SSRN Introduction to the Right of Redress. The abstract provides:
This is a draft of the Introduction chapter from my new book, The Right of Redress (Oxford University Press, 2020). As the book argues, the law enables private parties to engage in redress by undoing the wrongs committed against them. Moreover, a distinctive kind of justice governs our legal rights of redress, different from the kind described in leading corrective justice approaches. Through analysis of these key ideas, The Right of Redress helps to make sense of tort law, contract law, fiduciary law, unjust enrichment doctrine, and equity.
Monday, November 9, 2020
Alexandra Lahav & Elizabeth Chamblee Burch have posted to SSRN Information for the Common Good in Mass Torts. The abstract provides:
In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.
Accordingly, we suggest that courts ought to prioritize litigation’s information-production role over competing litigant-autonomy values in lawsuits like the Opiate litigation that have a significant bearing on public health and safety. To aid courts in doing so, we propose a nuanced approach to confidentiality that takes into consideration the interests of different actors and stakeholders with different legal claims, recognizing that doing so will undermine the system’s commitment to trans-substantivity in practice.
Friday, November 6, 2020
Wednesday, November 4, 2020
Timothy Zick has posted to SSRN The Costs of Dissent: Protest and Civil Liabilities. The abstract provides:
This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions affecting protest, including “negligent protest,” “aiding and abetting defamation,” “riot boosting,” “conspiracy to protest,” and “tortious petitioning.” The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add to an already challenging and burdensome protest environment, which includes regulatory and other restrictions on speech and assembly. Owing to their chilling effect on First Amendment rights, courts have a special obligation to review both traditional costs and new civil actions skeptically, to require clarity and precision in terms of liability standards, and to allow civil liability only in very narrow circumstances. Applying these guidelines, the Article urges courts to reject a number of civil costs and claims as inconsistent with First Amendment precedents and doctrines, and to review other costs and liabilities in light of the First Amendment values protest activity serves. Beyond the courts, officials and administrators should more carefully consider the First Amendment implications of the cumulative – and rising – costs of dissent.
Tuesday, November 3, 2020
The University of Michigan Law School invites junior scholars to attend the 7th Annual Junior Scholars Conference, which will take place virtually on April 16-17, 2021. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Michigan Law journals have also agreed to give serious consideration to publish selected papers. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed. More information here: Download Cfp Michigan Law School 2021 Junior Scholars Conference
Applications are due by January 4, 2021.
Monday, November 2, 2020