Thursday, May 27, 2021
Andrew Kent has posted to SSRN Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation Against Federal Officers. The abstract provides:
This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially-created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to the institution which should weigh the costs and benefits of allowing constitutional tort suits against federal officers for damages, especially in areas like national security or foreign affairs in which the political branches might be thought to have constitutional primacy. Scholarly writing and litigation briefs critical of the Court’s treatment of Bivens now frequently focus on damages suits under common law or general law against American government officers in the early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writing about officer damages suits claims that courts in the early republic: acted independently of Congress to impose significant restraints on federal officers; protected persons from federal overreach no matter their citizenship and territorial location, and even during wartime; and refused to grant anything like qualified immunity that might have softened the blow of strict personal liability and promoted government efficiency. Common law damages suits against federal officers are said to have remained routinely available until after Bivens was decided when, in the 1988 Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of their employment.
Through case studies of litigation against federal officers involved in customs enforcement and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show that there was substantial political branch endorsement of personal damages liability of federal officers in the early republic, but as material and legal conditions changed over the nineteenth century, Congress moved away from officer suits as a means of ensuring accountability of federal officers and compensation of persons harmed by official illegality. Further, in high stakes contexts for the young republic—wartime prize seizures and peacetime anti-piracy seizures—the Supreme Court did in fact apply immunity doctrines to protect officers and incentivize vigor. Finally, alien enemy disability to sue in U.S. courts during wartime must be acknowledged as a significant limit the protective reach of the officer damages suit. I conclude with thoughts about the implications of this somewhat revised view of the history of damages litigation against federal officers.
Monday, May 24, 2021
Wednesday, May 19, 2021
Tuesday, May 18, 2021
Today at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts: Intentional Torts to Persons. Reporters Ken Simons and Jonathan Cardi shepherded the project to completion; Ellen Pryor served as a Reporter from 2014-2015. The ALI's press release is here.
Friday, May 14, 2021
Philip Peters has posted to SSRN On the Cusp of the Next Medical Malpractice Insurance Crisis. The abstract provides:
Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.
How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.
The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one.
The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform.
This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be.
Wednesday, May 12, 2021
John Goldberg has posted to SSRN Taking Responsibility Personally: On John Gardner's From Personal Life to Private Law. He presented at the AALS Torts panel in January and the piece is forthcoming in the Journal of Tort Law. The abstract provides:
This essay, written for a panel honoring the late John Gardner, explores a tension in his book’s highly engaging and illuminating account of the relationship between “personal life” and “private law.” For the most part, the book sets out to explain how private law’s doctrines help us to act as we ought to act by reproducing, with greater specificity, the rules and norms of morality. At crucial moments, however, it suggests that private law serves its function by departing dramatically from morality. In particular, it argues that private law’s conferral of broad discretion on victims of legal wrongs to decide whether and how to pursue claims against wrongdoers has no moral counterpart. I suggest, to the contrary, that personal life does contain analogues to private law’s powers and liabilities. I further maintain that Gardner’s reluctance to recognize them reflects a problematic understanding of interpersonal responsibility as monadic answerability to reason rather than dyadic answerability to another.
Tuesday, May 11, 2021
Cathy Sharkey has posted to SSRN Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms. The abstract provides:
This Article focuses on public nuisance’s innovative use as a means of recovering purely financial losses between non-contracting parties (i.e., “strangers”), in particular where the economic loss rule potentially bars recovery. The Article proposes a new approach to reconciling the torts of negligence and public nuisance, centered on the “channeling” or enforcement rationale: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the social costs of its activities. Where the prospect of physical bodily injuries and property damage is attenuated, this cost-internalization function is especially important to deter excessively risky conduct likely to lead to significant financial losses. Moreover, the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that the societal harms of the 21st century involve risky conduct leading to purely financial harms. Where there are diffuse, widespread harms raising concomitant concerns of under- and over-deterrence, a new “channeling” paradigm is necessary to guide courts in fashioning the metes and bounds of public nuisance as the quintessentially modern business tort of the 21st century.
Monday, May 10, 2021
Kirk Hartley, Susan Brice, and Mark Zellmer are hosting a virtual conference, "Genomic Analysis in Tort Cases." The conference runs most of the day on Wednesday, May 26, is free, and you can register here: https://www.eventbrite.com/e/genomic-analysis-in-tort-cases-virtual-tickets-152523216045. An agenda is available here: Download Perrin Conferences_Genomics Analysis Final_04 (1) The gist is below:
- Panel 1 will address the use of genomics in product liability and/or premises cases involving exposures to toxicants, including asbestos, benzene and radiation.
- Panel 2 will address cases involving issues such as birth defects, medical malpractice and individual variability in the metabolism of drugs and chemicals.
- Panel 3 will explain the big picture of the processes and methods involved in using genomic analysis in actual cases.
- Panel 4 will present example of "environmental cases" in which genomic analyses have been used to provide objective evidence to trace sources of exposure and dispersal, and will briefly touch on uses of genomic analyses for cancer cluster cases.
- Panel 5 will focus on communicating genomic issues to juries and judges; among other things, jury consulting experts will provide some thoughts on communicating the messages.
- Panel 6 will focus on use of genomics in "high value" settings, including a further focus on cancer cluster cases and medical monitoring cases, with some discussion of some of the draft statutes that are pending regarding PFAS and other chemicals.
- An extended Q & A session will close out the day.
Friday, May 7, 2021
Stephen James Bogle has posted to SSRN Private Law Theory and the Past. The abstract provides:
Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorizing by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.
Wednesday, May 5, 2021
Justice Thomas issued a dissent from cert denial in which he made it clear he believes Feres was a policy judgment by the Court and not based on the Federal Tort Claims Act. He stated succinctly, "Feres was wrongly decided." ABA Journal has the story.
Tuesday, May 4, 2021
Monday, May 3, 2021
Ronen Avraham & Kimberly Yuracko published an important op-ed in The Washington Post late last week entitled "The use of race- and sex-based data to calculate damages is a stain on our legal system." Steve Lubet has more at The Faculty Lounge. In addition to the contribution of Judge Jack Weinstein, mentioned in the op-ed, Martha Chamallas and Jenny Wriggins have done significant work in this area.
Friday, April 30, 2021
Bob Rabin has posted to SSRN Stephen Sugarman and the World of Responsibility for Injurious Conduct. This piece is from a festschrift for Steve put on by the California Law Review. Bob also spoke yesterday at a moving celebration in honor of Steve's career. The abstract provides:
For a festschrift celebrating the scholarship of Professor Stephen Sugarman, I was asked to discuss his contributions to the area of accident law. Professor Sugarman’s published work runs across the spectrum of responsibility for injurer-based harm, embracing intentional misconduct, fault-based recovery, strict liability, no-fault compensation schemes, and social insurance. In addition to this wide-ranging and cogent analysis of approaches to liability and compensation, Sugarman has complemented his system-based work with perspectives from the vantage points of history, public policy formation, and jurisprudential assessment of tort and tort alternatives.
My coverage unfolds as follows. I begin with Sugarman’s landmark initial excursion into the world of tort law in which he advocated the replacement of tort with a social insurance scheme. Next, I discuss his more focused tort replacement studies in the world of no-fault liability. Then, I examine his critiques of tort doctrine and his interdisciplinary approaches to the system, which include historical and jurisprudential perspectives. I conclude on a personal note.
Wednesday, April 28, 2021
Cathy Sharkey has posted to SSRN Valuing Black and Female Lives: A Proposal for Incorporating Agency VSL into Tort Damages. The abstract provides:
Incorporating a uniform VSL would ameliorate the hitherto unaddressed and unjustified race and gender bias in tort awards. The substitution of a uniform VSL for race- and gender-based statistics addresses the racialized and gendered deterrence gap that has led to skewed incentives for actors to take precautions against harms to blacks and women. Moreover, with regard to the inevitable underdeterrence/overinsurance tradeoff that arises in formulating wrongful death damages, the “cost” of the overinsurance/overcompensation can be viewed as the “price” paid in order to provide equitable treatment across demographic groups, to ensure that defendants respect the same uniform duty of care for all plaintiffs, and to eradicate the perverse incentives for adverse risk allocation.
Tuesday, April 27, 2021
Friday, April 23, 2021
I have posted to SSRN Harmonizing Wrongs and Compensation. My contribution to the Maryland Law Review's Festschrift for Oscar Gray, the abstract provides:
In his seminal work, Tort Law in America, Ted White describes tort law as vacillating between a focus that is admonitory, based on conduct that is wrongful, and compensatory, providing the injured with resources to allay their injuries. Instead of continuing to vacillate between opposing theories of tort law, this article proposes to blend them. The concept is a tort law that is generally wrongs-based, but has a compensatory bypass.
There are two significant reasons to adapt compensation to a wrongs-based theory of tort law. First, incorporating compensation into tort law would match the motivations of many parties in the tort system and help improve its administration. I practiced tort law for seven years. Some of my clients were interested in vindication, but the majority were motivated by compensation, by which I mean they needed money to pay for their medical bills and/or lost wages. There is a problem, however, with sending both types of plaintiffs into the same tort system. Tort law, particularly negligence, is uncertain, and that uncertainty leads to delay and transaction costs. For plaintiffs interested in vindication, perhaps the time needed to pay close attention to facts and circumstances makes sense. After all, determining whether one has been wronged is a serious inquiry. Those features, however, are counterproductive to compensating the injured. Tort law that was able to vindicate rights in proper cases, but also efficiently compensate in others, would be ideal.
Second, history demonstrates that waves of injuries pressure tort law, and the law responds in a compensatory manner. It is foreseeable that injuries will continue to pressure tort law, and it makes sense to incorporate a mechanism to handle that pressure. Moreover, history provides guidance about the likely character of a compensatory bypass: compensation would become easier to obtain, but in smaller amounts.
Thursday, April 22, 2021
Ronen Perry has posted to SSRN The Unidentified Wrongdoer. The abstract provides:
The Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.
Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.
Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong unidentifiability problems lawmakers should focus on four types of costs: (1) the cost for the victim of identifying the unknown wrongdoer using advanced procedural tools, (2) the cost for a third party of obtaining and retaining information about the wrongdoer’s identity, (3) the cost (and expected impact) of precautions a third party could take to reduce the likelihood of the wrongdoing, and (4) the cost of non-enforcement.
Part II then outlines the selection principle, explains that its application is context, jurisdiction, and time-specific, and applies it to four common cases of strong unidentifiability: intentional violations of bodily integrity, life, or liberty by unknown perpetrators, injuries caused by defective products whose manufacturers are unidentified, anonymous online wrongdoing, and hit-and-run accidents.
Monday, April 19, 2021
Friday, April 16, 2021
Simone Degeling, Michael Crawford, and Nicholas Tiverios have published Justifying Private Rights by Hart Publishing. The blurb provides:
Many of the most influential contributions to private law scholarship in the latter part of the twentieth century go beyond purely doctrinal accounts of private law. A distinctive feature of these analyses is that they straddle the divide between legal philosophy, on the one hand, and the sort of traditional doctrinal analysis applied by the courts, on the other. The essays contained in this collection continue in this tradition. The collection is divided into two parts. The essays contained in the first part consider the nature of, and justification for, private rights generally. The essays in the second part address the justification for particular private law rights and doctrines. Offering insightful and innovative analyses, this collection will appeal to scholars in all fields of private law and legal theory.
Feb 2021 | 9781509931958 | 296pp | Hbk | RSP:
Discount Price: £64
Order online at www.hartpublishing.co.uk – use the code UG7 at the checkout to get 20% off your order!