TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, February 20, 2020

A Tribute to Francis McGovern

from Duke Law is here.

February 20, 2020 in TortsProfs | Permalink | Comments (0)

Tuesday, February 18, 2020

Francis McGovern (1945-2020)

Brian Leiter is reporting that Francis McGovern, the longtime Duke faculty member and class-actions expert, has passed away.  He worked until the end; I was with him at a conference less than two weeks ago.

February 18, 2020 in TortsProfs | Permalink | Comments (0)

Monday, February 17, 2020

Gilles & Friedman on Issue Class Actions

Myriam Gilles & Gary Friedman have posted to SSRN The Issue Class Revolution.  The abstract provides:

In 2013, four Supreme Court Justices dissented from the decision in Comcast v. Behrend establishing heightened requirements for the certification of damages class actions. In a seemingly off-handed footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes, by certifying a class under Rule 23 (c)(4) on “liability” issues only, and “leaving individual damages calculations to subsequent proceedings.” The dissenters were on to something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across a number of substantive areas, after decades of judicial hostility. This article offers a bold and original vision for the issue class procedure, promising scale efficiency while sidestepping the doctrinal land mines that dot the class action landscape. It is a vision rooted in sober pragmatism and an account of the economic incentives confronting entrepreneurial law firms as they consider investing in aggregate litigation under Rule 23(c)(4).

February 17, 2020 in Scholarship | Permalink | Comments (1)

Friday, February 14, 2020

Baker on Uncertainty and the Insurance Runoff Market

Tom Baker has posted to SSRN Uncertainty>Risk:  Lessons for Legal Thought from the Insurance Runoff Market.  The abstract provides:

Insurance ideas inform legal thought: from tort law, to health law, to theories of distributive justice. Within legal thought, insurance is often conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. Significantly for tort theory, this ideal type supports a restrictive vision of liability-based regulation, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work has criticized this restrictive vision on normative grounds. This article criticizes that vision on empirical grounds. The article describes an emerging secondary insurance market – the insurance runoff market – that transfers liabilities under insurance policies issued many years in the past. Having started with old asbestos and hazardous waste liabilities, the market now extends to other liabilities that have not worked out well for the companies that insured them, including workers compensation, savings-linked life insurance, pension and annuity guarantees, and long term care insurance.

Runoff specialists reprice these legacy insurance liabilities with hindsight, consolidate them, and take calculated risks that encourage capital to enter the runoff market. That market transforms the uncertainties of the past into today’s tradeable risks, bringing into the open a dynamic that pervades insurance markets: namely, the promises that are made in all insurance policies get bundled and reconceptualized into sets of liabilities that are valued and revalued, further combined and redefined over time.

Through the lens of the runoff market we can see many ways that insurance organizations manage uncertainty, revealing the resilience in insurance markets and the flexibility and innovation that produce that resilience. The runoff market counsels us to give much less weight to arguments that expanding liability will undermine insurance markets. Insurance already involves so much uncertainty, and insurers have so many ways to manage it, that the most likely result will always be that they will continue to muddle through.

February 14, 2020 in Scholarship | Permalink | Comments (0)

Thursday, February 13, 2020

Gilead on Simplifying Negligence

Israel Gilead has posted to SSRN Simplifying the Complexities of Negligence Law--A Joint Academic/Judicial Proposal.  The abstract provides:

Over a century, Common Law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (conduct, harm causation, duty), the test, and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element.

Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli Justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 CSS’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

February 13, 2020 in Scholarship | Permalink | Comments (0)

Tuesday, February 11, 2020

Epstein & Sharkey 12th Edition Available Soon

Cases and Materials on Torts, Twelfth Edition by Richard A. Epstein and Catherine M. Sharkey will be available soon. Cases and Materials on Torts preserves historical and conceptual continuity between the present and the past, while addressing the most significant contemporary controversies in such fast-moving areas like public nuisance, global warming, and product liability, with new litigation against internet providers. Toward these dual ends, Richard A. Epstein and Catherine M. Sharkey have retained in the Twelfth Edition the great older cases, both English and American, that have proved themselves time and again in the classroom, and which continue to exert great influence on the modern law. Our book also provides a rich exploration of the dominant corrective justice and law-and-economics approaches to tort law, as exemplified both in the retained and new cases and materials.

Book Information:

Cases and Materials on Torts, Twelfth Edition

Richard A. Epstein, New York University Law School

Catherine M. Sharkey, New York University Law School

Pages: 1,328

ISBN: 9781543804454

Part of the Connected Casebook Program

Visit wklegaledu.com/Epstein-Torts12 to view more information

To access teaching materials for this title, you will need a validated professor account on WKLegaledu.com. If you do not yet have a validated professor account, you may register at WKLegaledu.com/my-account/register. Account validation may take 1-2 business days. Once validated, you may log into your account using your own personal login, go to the product page for this title or any Wolters Kluwer title, and scroll down to access the Professor Resources once they have been made available on the site.

 

 

February 11, 2020 in Books, Teaching Torts | Permalink | Comments (0)

Monday, February 10, 2020

PA: Legislative Committee Makes No Recommendation on Proposed Med Mal Venue Rule

In 2002, the legislature passed a  law that, among other things, limited venue in med mal cases to the county in which the cause of action arose.  The Pennsylvania Supreme Court adopted the venue restriction into the rules of civil procedure to fix a constitutional problem with the legislation.  About a year ago, the court announced it was considering eliminating the restriction.  A committee of the legislature requested a year to study the change.  That report was released last week, and the committee stated it had insufficient data to assess the impact of the proposed change.  No recommendation was made.  It is likely there will be a renewed period of public comment prior to any decision by the court.  JD Supra has details.

February 10, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, February 5, 2020

JOTWELL Torts: Zipursky on Fallon on Constitutional Torts

At JOTWELL, Ben Zipursky reviews Richard Fallon's Bidding Farewell to Constitutional Torts.

February 5, 2020 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 3, 2020

Selbst on AI and Negligence

Andrew Selbst has posted to SSRN Negligence and AI's Human Users.  The abstract provides:

Negligence law is often asked to adapt to new technologies. So it is with artificial intelligence (AI). But AI is different. Drawing on examples in medicine, financial advice, data security, and driving in semi-autonomous vehicles, this Article argues that AI poses serious challenges for negligence law. By inserting a layer of inscrutable, unintuitive, and statistically-derived code in between a human decisionmaker and the consequences of that decision, AI disrupts our typical understanding of responsibility for choices gone wrong. The Article argues that AI’s unique nature introduces four complications into negligence: 1) unforeseeability of specific errors that AI will make; 2) capacity limitations when humans interact with AI; 3) introducing AI-specific software vulnerabilities into decisions not previously mediated by software; and 4) distributional concerns based on AI’s statistical nature and potential for bias.

Tort scholars have mostly overlooked these challenges. This is understandable because they have been focused on autonomous robots, especially autonomous vehicles, which can easily kill, maim, or injure people. But this focus has neglected to consider the full range of what AI is. Outside of robots, AI technologies are not autonomous. Rather, they are primarily decision-assistance tools that aim to improve on the inefficiency, arbitrariness, and bias of human decisions. By focusing on a technology that eliminates users, tort scholars have concerned themselves with product liability and innovation, and as a result, have missed the implications for negligence law, the governing regime when harm comes from users of AI.

The Article also situates these observations in broader themes of negligence law: the relationship between bounded rationality and foreseeability, the need to update reasonableness conceptions based on new technology, and the difficulties of merging statistical facts with individual determinations, such as fault. This analysis suggests that though there might be a way to create systems of regulatory support to allow negligence law to operate as intended, an approach to oversight that it not based in individual fault is likely to be a more fruitful approach.

February 3, 2020 in Scholarship, Web/Tech | Permalink | Comments (0)

Thursday, January 30, 2020

ILR on Third Party Litigation Funding

The Chamber's Institute for Legal Reform has published Selling More Lawsuits, Buying More Trouble:  Third Party Litigation Funding A Decade Later.  The abstract provides:

When ILR documented the early development of third party litigation funding (TPLF) in the U.S., the industry barely existed. Now, according to a recent survey, U.S. funders alone have over $9.5 billion under management. ILR’s research looks at how exactly this explosive growth has happened, how the industry is fueling abusive litigation, how the few TPLF agreements that have been made public reveal deep ethical issues with the practice, and how lawmakers and rule makers can approach TPLF reform.

Among the solutions documented in the paper are proposals that:

    • TPLF agreements must be disclosed to all parties in litigation, to minimize conflicts of interest and ensure plaintiffs retain control of their case
    • Fee-sharing agreements between lawyers and non-lawyers should be banned (as several bar associations have already done) in order to preserve the independent professional judgment of attorneys
    • TPLF should not be permitted in the class action context, because funding creates a potential obstacle to class counsel and named plaintiffs satisfying their fiduciary duties to the class

January 30, 2020 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, January 29, 2020

Borghetti & Whittaker: French Civil Liability in Comparative Perspective

Jean-Sébastien Borghetti & Simon Whittaker have published French Civil Liability in Comparative Perspective with Hart Publishing.  The blurb provides:

The French law of torts or of extra-contractual liability is widely seen as exceptional. For long it was based on a mere five articles of the Civil Code of 1804, but on this foundation the courts and legal scholars have constructed liabilities for fault and strict liability of an extraordinary breadth and significance. While the rest of the general law of obligations (including contract) in the Civil Code was reformed in 2016 by executive ordonnance, this area was left aside, being the subject in 2017 of a proposal by the French Government for the legislative reform of the law of civil liability, a new legislative category to include both contractual and extra-contractual liability. This work considers important aspects of this developing area of French law in a series of essays by French lawyers and comparative lawyers working in French law and other civil law systems. In doing so, it provides insight into the doctrinal thinking and judgments of French lawyers as well as the possible directions in which this area of the law may be developed in the future.

A 20% discount is available on the flyer:  Download Borghetti_Whittaker_flyer

January 29, 2020 in Books | Permalink | Comments (0)

Tuesday, January 28, 2020

CFP: Conference on Indigenous Private Law

The Journal of Commonwealth Law, in cooperation with the Faculties of Law at the Université de Montréal and the University of Cape Town, will host a symposium devoted to exploring the issues inherent in Indigenous private law. We call for papers specifically on Indigenous Private law issues. What norms govern matters relating to Property, Persons and Family, or Succession for example? Beyond that, is there an Indigenous law of Contracts or Torts, or a law relating to (commercial) associations? We invite perspectives from around the Commonwealth and are open to different theoretical frames of reference or methodologies of inquiry. We are also open to papers which discuss how State laws relate to Indigenous private law issues, or the regulation of the Indigenous economy.

The conference will be held at the Université de Montréal on May 8, 2020, and the papers will be published in the Journal of Commonwealth Law, a peer-reviewed journal devoted to exploring legal issues from a multi-jurisdictional perspective. We seek contributions from both established and new scholars from around the Commonwealth, Ireland and the United States.

For more details:  Download CFP Indigenous Private Law Conference

January 28, 2020 in Conferences, Scholarship | Permalink | Comments (0)

Monday, January 27, 2020

Azmat on Civil Recourse Theory

Ahson Azmat has posted to SSRN Tort's Indifference:  Conformity, Compliance, and Civil Recourse.  The abstract provides:

Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

The piece is forthcoming in the Journal of Tort Law and was Larry Solum's Download of the Week.

January 27, 2020 in Scholarship | Permalink | Comments (0)

Thursday, January 23, 2020

"New Frontiers in Torts" Symposium at Southwestern

The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles.  The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish.  The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion.  Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms.  In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others.  The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus.  The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts.  Registration for the symposium is available now.

Speakers and moderators at the symposium will include the following:

  • Ronald Aronovsky, Professor of Law, Southwestern Law School;
  • Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
  • John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
  • Alan Calnan, Professor of Law, Southwestern Law School;
  • Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
  • James Fischer, Professor of Law, Southwestern Law School;
  • Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
  • Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
  • Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
  • Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
  • Francis McGovern, Professor of Law, Duke Law School;
  • Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
  • Brian Panish, Founding Partner, Panish, Shea & Boyle;
  • R. Rex Parris, Founding Partner, Parris Law Firm;
  • Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
  • Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
  • Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
  • Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
  • Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
  • Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
  • Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
  • Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
  • Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.

Cross-posted from Mass Tort Litigation Blog.

January 23, 2020 in Conferences | Permalink | Comments (0)

Wednesday, January 22, 2020

19th Annual Conference on European Tort Law

The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law of the Austrian Academy of Sciences and the University of Graz (ETL) cordially invite you to the 19th Annual Conference on European Tort Law, which will be held in Vienna from April 16 to 18, 2020.

The Annual Conference on European Tort Law provides a unique opportunity for both practitioners and academics to discover the most significant tort law developments from across Europe. A Special Session on Saturday morning is dedicated to the increasingly relevant topic of ‘Liability for Digital Technologies’.

The flyer is here:  Download ACET2020_Folder_Email

January 22, 2020 in Conferences | Permalink | Comments (0)

Tuesday, January 21, 2020

Zick on the Costs of Dissent

Timothy Zick has posted to SSRN The Rising Costs of Dissent:  Public Protest and Civil Liabilities.  The abstract provides:

This Article holistically examines the threat that civil liabilities and costs pose to effective political protest. The immediate impetus for examining the costs of dissent is the appearance of new civil liability claims, including “negligent protest,” “conspiracy to protest,” and “malicious petitioning.” However, these claims merely add to an already challenging and burdensome protest environment, which imposes legal, regulatory and cultural restrictions on protest activities. In addition, a wide variety of more traditional costs ranging from permit fees to punitive damages also affects contemporary protest. Owing to their potential chilling effect on expressive activities, courts have special obligations to review both new theories and traditional costs skeptically, to demand precision in terms of liability standards, and to reject civil liability when it is inconsistent with First Amendment rights and commitments. Applying these guidelines, the Article urges courts to reject new theories of liability such as “negligent protest” and “malicious petitioning.” It also encourages courts and lawmakers to more carefully consider the First Amendment implications of other aspects of the cumulative – and rising – costs of dissent.

January 21, 2020 in Scholarship | Permalink | Comments (0)

Monday, January 20, 2020

Conk on the Cato Institute and Qualified Immunity

At Otherwise, George Conk details the Cato Institute's recent battle against qualified immunity.

January 20, 2020 in Legislation, Reforms, & Political News, Weblogs | Permalink | Comments (0)

Friday, January 17, 2020

Goldberg & Zipursky: Recognizing Wrongs

John Goldberg & Ben Zipursky have published Recognizing Wrongs from Harvard University Press.  From the blurb:

Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly.

Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.

Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.

I got my copy yesterday; get yours here

January 17, 2020 in Books, Scholarship | Permalink | Comments (0)

Thursday, January 16, 2020

Smith on the Structure of Remedial Law

Stephen Smith has posted to SSRN Rights, Wrongs, and Injustices:  The Structure of Remedial Law--Introductory Text.  The abstract provides:

In this text, which comprises the 'Preface' and 'Introduction' to Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019), I set out the foundations for the first comprehensive account of the scope, foundations, and structure of the law governing private law remedies (understood here as judicial rulings) in common law jurisdictions.

Substantively, this introductory text explains what remedial law is, why it is important, and how common law lawyers’ failure to take remedies seriously as a legal subject has impoverished their understanding not just of remedial law, but also of the broader private law. As part of this explanation, it also introduces four themes that run through the book’s examination of particular remedies. First, the question of what courts should do when individuals seek their assistance (the focus of remedial law) is different from the question of how individuals should treat one another in their day-to-day lives (the focus of substantive law). Second, remedies provide distinctive reasons to perform the actions they command; in particular, they provide reasons different from those provided by either rules or sanctions. Third, remedial law has a complex relationship to substantive law. Some remedies are responses to rights-threats, others to wrongs, and yet others to injustices. Further, remedies respond to these events in different ways: while many remedies merely replicate substantive duties, others modify substantive duties and some create entirely new duties. Finally, remedial law is underpinned by general principles — principles that cut across the traditional distinctions between ‘legal’ and ‘equitable’ remedies.

January 16, 2020 in Books, Scholarship | Permalink | Comments (0)

Tuesday, January 14, 2020

Goudkamp on Beever on a Theory of Tort Liability

James Goudkamp has posted to SSRN Book Review:  A Theory of Tort Liability.  The abstract provides:

Allan Beever’s latest book, A Theory of Tort Liability, builds on his previous major theoretical works regarding tort law, those being Rediscovering the Law of Negligence, and The Law of Private Nuisance. In the same vein as his earlier projects, Beever defends a rights-based conception of tort law. His ultimate concern in A Theory of Tort Liability is to explain 'how [the] rights [that underpin tort law] relate to each other and ground a systematic form of liability'.

January 14, 2020 in Books, Scholarship | Permalink | Comments (0)