Thursday, October 13, 2022
Richard Epstein has posted to SSRN The Private Law Connections to Public Nuisance Law: Some Realism About Today's Intellectual Nominalism. The abstract provides:
Historically, the law of public nuisance was confined to cases where private parties blocked public roads or polluted public waters, thereby infringing on a right belonging to all citizens. In tandem with the identical provisions under private nuisance law, the appropriate remedies included monetary sanctions, injunctions and various orders. So understood, a consistent regime of public and private enforcement controlled against these wrongs. More recently, however, multiple attempts have been made to remove the limitations of public nuisance law so as to turn it into an all-purpose remedy that pays insufficient attention to the key features of this body of law. In so doing, too many modern cases have taken the position that the term nuisance has no real meaning at all, so that it can be turned to any substantive end of the moment. This position rests on a false if common claim about the necessary indeterminacy of all language.
This philosophical ploy has been invoked repeatedly to expand the conception of public, and indeed private, nuisances beyond their proper connotations. Thus far, this trend has been resisted in cases involving global warming, and, at least for the moment, firearms. But actions of this sort have had undeserved success in dealing with cases involving such important substances as lead paint and opioids. In virtually all these cases, an expanded public nuisance theory is used to sidestep key requirements in relevant areas of law, including reliance in misrepresentation cases and design or manufacturing defects in product liability cases. Stopping these tactics in public nuisance cases is part of a larger battle, for no system of constitutional limitations on government power can survive if language is never clear enough to explain the do’s and don’ts of public life.
Tuesday, October 11, 2022
Lee Anne Fennell has posted to SSRN The Gun and the Paperweight: Risk Control Services and Disservices. The abstract provides:
Suppose a legal rule makes it negligent to have a loaded gun out in the open in a place of business. Should a defendant who violated this rule by using a loaded gun as a paperweight be liable for his client’s broken toes when the gun falls onto her foot? Problems manifesting this basic structure have occupied scholars and Restatement reporters for decades. In this essay, I reframe untaken precautions as a bundle of risk control services, each of which counteracts a particular risky element, like “shooting capacity” or “heaviness” in the case of the gun. Tort law ought to induce actors to produce all, and only, the risk control services that are worth the cost of providing. Cashing out that prescription is tricky because precautions often jointly provide multiple risk mitigation services, and more than one precaution may meet the legal standard. Nonetheless, the task becomes tractable if we examine the cost structure of precautions—and, analogizing to break-even analysis for products, identify which risk control services contribute to rather than detract from a precaution’s bottom line. The risk services framework partially redeems but also revises harm-within-the-risk and negligence per se doctrines that limit negligence liability based on the type of danger or category of victim involved in a given accident. By enabling us to assess which ostensible risk control services are really societal disservices, this approach provides a firmer basis for calibrating the scope of liability.
Saturday, October 8, 2022
John Goldberg & Ben Zipursky have been named the 2023 Prosser Award honorees, the first time the Award has been presented to two people. The Award recognizes their contributions to the field of tort law generally and emphasizes the strength of their 2020 book, Recognizing Wrongs.
From the Harvard Law School website about John Goldberg:
John Goldberg, an expert in tort law, tort theory, and political philosophy, joined the Law School faculty in 2008 and served as a Deputy Dean from 2017 to 2022. Previously he was a faculty member of Vanderbilt Law School, where he was Associate Dean for Research (2006-08). He is co-author of Recognizing Wrongs (Harvard University Press 2020), as well as a leading casebook — Tort Law: Responsibilities and Redress (5th ed. 2021) and The Oxford Introductions to U.S. Law: Torts (2010). He has also published dozens of articles and essays in scholarly journals. Goldberg has taught an array of first-year and upper-level courses, and has received multiple teaching prizes. An Associate Reporter for the American Law Institute’s Fourth Restatement of Property, Goldberg also serves as an advisor to the Third Restatement of Torts. In addition, he is a member of the editorial boards of the Journal of Tort Law and Legal Theory, and in 2009 was Chair of the Torts and Compensation Systems Section of the Association of American Law Schools. After receiving his J.D. in 1991 from New York University School of Law, Goldberg clerked for Judge Jack Weinstein of the Eastern District of New York and for Supreme Court Justice Byron White. He earned his B.A. with high honors from the College of Social Studies, Wesleyan University. He also holds an M. Phil. in Politics from Oxford University and an M.A. in Politics from Princeton University. Before joining the Vanderbilt faculty, he briefly practiced law in Boston.
From the Fordham University School of Law website about Ben Zipursky:
Benjamin C. Zipursky is Professor of Law and James H. Quinn ’49 Chair in Legal Ethics. A member of the Fordham Law School’s faculty since 1995, he has taught as a visitor at Columbia Law School, Harvard Law School, Vanderbilt Law School, and NYU (Philosophy). In the late 1990s and early 2000s, Professor Zipursky, along with Professor John C.P. Goldberg (Harvard), pioneered Civil Recourse Theory in Tort Theory, and Goldberg and Zipursky are the most widely cited Torts professors in the United States. Zipursky has published more than one hundred articles, essays, and book chapters in a variety of subjects, including Torts, Jurisprudence, Constitutional Law, Criminal Law, Legal Ethics, and Moral Philosophy. He has lectured extensively in the United States and abroad and is the co-author of a leading casebook, Tort Law: Responsibilities and Redress (5th ed. 2021) (with J. Goldberg, L. Kendrick and A. Sebok) and The Oxford Introductions to U.S. Law: Torts (2010) (with Goldberg), and co-editor of Research Handbook in Private Law Theory (2020) (with H. Dagan). His most recent book, Recognizing Wrongs (2020) (with J. Goldberg) has been widely acclaimed, and has generated Law and Philosophy symposia on three continents.
Congratulations to John and Ben!
Wednesday, October 5, 2022
The Centre of European Private Law, which has a cooperation agreement with the Institute for European Tort Law of the Austrian Academy of Sciences, is looking for a University Assistant without doctorate, with a completed diploma or master's degree in the field of law with above-average success (or legal degree from Great Britain/Ireland/or other foreign law degree).
Scientific focus: Comparative and European Private Law, Tort Law, English Law/ Common Law
Excellent command of English (a native speaker would be ideal)
Candidates should apply until 19 October 2022.
The place of employment will be mainly in Vienna, with lectures to be held in Graz.
Monday, October 3, 2022
Luke Meier has posted to SSRN Achieving True Strict Products Liability (But Not for Plaintiffs with Fault). The abstract provides:
Under modern tort law, the strict product liability cause of action does not impose true strict liability. This Article suggests that this development can be traced to an analytical difficulty: How to prevent a plaintiff with fault from being able to take advantage of the strict liability standard? Courts have not developed a satisfactory doctrine that both imposes true strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovery on this claim. In the absence of a better idea, courts have (mostly) retreated from a true strict product liability standard. This Article offers a solution to this analytical riddle: A simple change to the current comparative fault jury instructions would allow jurisdictions to impose strict product liability on manufacturers while simultaneously preventing plaintiffs with fault from recovering on a strict product liability claim. This is all that is necessary for jurisdictions that are inclined to put the “strict” back in the strict product liability cause of action.
Wednesday, September 28, 2022
Monday, September 26, 2022
In late June, a Texas jury found Spectrum liable in the death of one of its customers. The company employed an internet installer who robbed and stabbed an 83-year-old woman to death. The jury found the murderer was 10% responsible and Spectrum was 90% responsible. The jury awarded $375 million in compensatory damages; Spectrum's share was $337.5 million. In late July, in a second phase of trial, the jury awarded the family $7 billion in punitive damages. Earlier coverage is here.
As anticipated, the $7 billion punitive damages award has been reduced by the trial judge. The plaintiffs' attorneys actually requested the reduction to protect the verdict on appeal. They requested a ratio of 2:1 and received it. The total award is now $1.15 billion. Spectrum states it will appeal. Dave Simpson at Law360 has the story (behind a paywall; it is also available on Lexis).
Thursday, September 22, 2022
Mike Wells has posted to SSRN Absolute Official Immunity in Constitutional Litigation. The abstract provides:
Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence benefits. Shifting from the crude function-based approach to a more nuanced cost-benefit methodology would make good sense—and all the more so because the shift would align the Court’s doctrine with the values it has identified as underlying official-immunity law. Of particular importance, such a reform would support the recognition of multiple exceptions to present-day absolute-immunity rules, thus better serving the overarching remedial goals of constitutional tort law.
Monday, September 19, 2022
On October 11, from 9-1 CST, Saint Louis University is hosting a conference entitled "Fifty Years After 'Inadequate and Inequitable': Reflections on State Workmen's Compensation Laws." Panelists are Jason Bent, Mike Duff, James Gallen, Price Fishback, and Ye Yuan. The blurb:
In 1970, Congress noted in its prelude to the enactment of the Occupational Safety and Health Act that “serious questions have been raised concerning the fairness and adequacy of present workmen’s compensation laws in the light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living.”In reaction to these developments Congress established a National Commission on State Workmen’s Compensation Laws to “undertake a comprehensive study and evaluation of State workmen’s compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation.” The Commission formed by President Nixon was tasked with providing a “detailed statement of the findings and conclusions of the Commission, together with such recommendations as it deems advisable” no later than July 31, 1972. That report was made, about fifty years ago. The Commission’s ultimate conclusion was “that State workmen’s compensation laws are in general neither adequate nor equitable.”The purpose of this conference is to reflect upon the significance of the report as a moment in the legal history of the treatment of workplace injury. To aid in the reflection, we discuss what workers’ compensation is, the justice it attempts to effectuate, what happened leading up to the 1970s, and the system’s uncertain future.
Thursday, September 15, 2022
Morgan Savige & John Fabian Witt have posted to SSRN Foreseeability Conventions. The abstract provides:
How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, and juries have established fixes or hacks -- what in this Article we call foreseeability conventions -- to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law’s basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division – even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest.
Wednesday, September 14, 2022
Barbara Pfeffer Billauer has posted to SSRN An Introduction to Using Genetics in Defending Legal Cases: a Legal Defense Grounded in Genetics--Is DNA-Testing the Magic Wand to Winning (Or Losing) a Negligence Case?. The abstract provides:
An introduction to the use of genetic markers and mutations to defend causal claims in toxic tort cases, exemplified by recent use in asbestos cases.
Monday, September 12, 2022
Linda Mullenix has posted to SSRN Aggregationists at the Barricades: Assessing the Impact of the Principles of the Law of Aggregate Litigation. The abstract provides:
In 2004 the American Law Institute began work on THE PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION, finally published in 2010. The Principles was addressed to legislatures, administrative agencies, attorneys, private actors, and courts concerning multiparty, multiforum litigation. A purpose of the Principles was to suggest best practices for these institutions and actors.
This essay describes the Principles in the historical context when complex litigation began to dominate federal dockets in the 1980s. It discusses the emergence of a cohort of aggregationists dedicated to liberalizing federal procedure to support, enhance, and encourage the speedy and efficient resolution of complex litigation. The Principles built upon a longstanding ALI concern with the burgeoning and rapidly changing judicial crisis relating to the resolution of complex litigation. The Principles suggested substantial changes in existing class action jurisprudence and judicial case management, recommending more robust embrace of liberalized aggregative procedures. Initially, the Reporters advocated for a root-and-branch revision but, as the essay documents, the final Principles reflected more modest compromises. The essay thoroughly canvasses the proposed recommendations and the subsequent embrace of the proposals.
This essay concludes that while the Principles project has left its mark, courts and legislative bodies still have not addressed or resolved many issues the Principles identified. Since publication most judges seem comfortable with prevailing jurisprudence and not especially interested in rewriting procedural doctrine governing complex litigation. The Principles has not resulted in a root-and-branch revision of aggregate procedure. Rather, reception of the Principles suggests that a more incremental approach to legal reform has prevailed, and the efforts of the avid aggregationists must await another day.
Apart from questions whether the Principles fulfilled its stated purpose, this essay explores fundamental questions about the Institute’s role in moving the law in certain directions based on the goals of committed actors. On one interpretation, the Principles represented a well-intended effort to provide judges with guidance “where there was little established law.” On another, perhaps more problematic view, the Principles represented the desires of actors who, frustrated by judicial resistance to aggregate litigation, used ALI auspices to change the law in a desired direction. These questions go to the heart of the ALI’s role in guiding attorneys, judges, and rulemaking bodies in furtherance of civil justice. Whether the liberalization of aggregate procedure is a desirable goal is a normative question that the ALI Principles project assumed but did not address.
Friday, September 9, 2022
Many of us teach Vincent v. Lake Erie Transp. Co. around this time of year, the private necessity case of the steamship Reynolds tied to a dock during a terrible storm in Duluth. A website named "Great Lakes Vessel History" has additional information about the ship. Apparently the Reynolds was sunk by a German submarine in WW I:
Transferred 1915 to off-Lakes service during World War I. Cut in two, towed to tidewater and rejoined Torpedoed and sunk May 19, 1918 by German submarine UB-74 off Ile d’Yeu, Bay of Biscay, Atlantic Ocean off the coast of France.
Thanks to Don Gifford for the tip.
Monday, September 5, 2022
Ronen Avraham & Ariel Porat have posted to SSRN The Dark Side of Insurance. The abstract provides:
When insurance works properly it provides insureds with optimal incentives to prevent losses, alongside coverage for losses that could not be prevented efficiently. But insurance has an overlooked dark side to it as well. Insurers employ various tactics to shift losses to their insureds or to their victims in order to minimize their own costs instead of reducing their insureds’ losses. Worse, insurers might also act to increase or maintain long term risks, ensuring the future of the insurance business that can’t exist without risks. To this end, we suspect, insurers engage in anti-competitive practices and trigger harmful behaviors of their insureds or third parties, in order to increase demand for insurance coverage. Policymakers should be aware and critical of insurers’ perverse incentives that counteract the interests of the insureds and society.
Wednesday, August 31, 2022
John Goldberg has posted to SSRN Torts in the American Law Institute. The abstract provides:
The American Law Institute (“ALI”) has devoted much attention to tort law. This attention has come in different forms. This chapter labels these, respectively: “ALI in the Mode of Appellate Court,” “ALI in the Mode of Law Reform Commission,” and “ALI in the Mode of Think Tank.” Each of these can be placed along a spectrum of ambitiousness with respect to law reform. None is unambitious. But Appellate Court Mode is tethered to doctrine, Think Tank Mode is untethered, and Law Reform Commission Mode lies somewhere in between. One might suppose that the ALI’s promise – which enables leading academics, in consultation with members of the bench and bar and others, to undertake long-term, large-scale research projects – resides in work at the more ambitious end of the spectrum. However, based on an admittedly impressionistic survey, I will suggest that, in the domain of tort law, the Institute has had important successes when proceeding in the manner of an appellate court, and has courted trouble when operating in the other modes.
Saturday, August 27, 2022
A Georgia jury awarded $24 million in compensatory and $1.7 billion in punitive damages to the sons of a couple killed when their Ford pickup truck rolled over. The roof of the truck collapsed after a tire blowout, killing the couple. The jury heard evidence of a number of prior similar incidents, but many of those cases have been resolved with confidential settlements. The jury also heard evidence of Ford's wealth. Even the plaintiffs' lawyer admits the punitive damages award is likely to be reduced, as it is approximately 70 times the compensatory damages award. Georgia has a split-recovery system, one of approximately eight, in which the state receives a portion of a punitive damages awards (in this case, 3/4).
Hannah Albarazi at Law 360 has the story, quoting Cathy Sharkey, Ben Zipursky, and me.
Thursday, August 25, 2022
Keith Hylton has posted to SSRN Mutual Optimism and Risk Preferences in Litigation. The abstract provides:
Why do some legal disputes fail to settle? From a bird’s eye view, the literature offers two categories of reasons. One consists of arguments based on informational disparities. The other consists of psychological arguments. This paper explores the psychological theory. It presents a model of litigation driven by risk preferences and examines the model’s implications for trials and settlements. The model suggests a foundation in Prospect Theory for the Mutual Optimism model of litigation. The model’s implications for plaintiff win rates, settlement patterns, and informational asymmetry with respect to the degree of risk aversion are examined.
Wednesday, August 24, 2022
Greg Keating has posted two pieces to SSRN. First, Form and Function in Tort Theory. The abstract provides:
Contemporary tort theory is a contest between instrumentalism and formalism. The prominence of instrumentalism is no surprise. American tort theory was born in the work of Oliver Wendell Holmes and his views were resolutely, if elusively, instrumentalist. Until very recently, economic views have dominated contemporary discussions of tort law in the American Legal Academy, and the economic analysis of torts is uncompromisingly instrumentalist. The rise of formalism, by contrast, is surprising. Legal realism swept over American legal thought long ago. Ever since, formalism has been treated more as epithet than as credible position by American legal scholars. In contemporary tort theory, though, formalism has roared back to life and struck some powerful blows against instrumentalism. Tort, these neo-formalists argue, is not an instrument for the pursuit of independently valuable ends. It is an institution whose norms are constitutive of just relations among persons. The bipolar, backward-looking form of the ordinary tort lawsuit has been the fulcrum that critics of economic analysis have used to pivot tort theory away from economic instrumentalism. That form, prominent tort theorists have persuasively argued, instantiates a backward-looking morality of responsibility, not a forward-looking morality of regulation. But the formalist enterprise has its own weaknesses. For one thing, formalist tort theory has tended to reshape tort law in ways that beg the questions that the theory purports to answer. For another, just relations among persons are a matter of substance as well as form. In the case of tort law, just relations require that tort law identify and safeguard those interests urgent enough to justify imposing reciprocal responsibilities of care and repair. We cannot, therefore, pull the rabbit of a convincing conception of tort law out of the hat of the field’s formal structure. What tort theory needs is two-pronged theory—theory that can both make sense of form and—by attending to tort law’s role in safeguarding our urgent interests from impairment and interference at each other’s hands—also illuminate tort law’s independently significant substance.
Second, Enterprise Liability. The abstract provides:
In American tort law “enterprise liability” is a response to the profound transformation of the social world brought about by modern industrial, technological society. In this world, most accidental harm is not the random byproduct of isolated individuals going about their idiosyncratic existences in civil society. Instead, the harms and wrongs characteristic of modern social life are the inevitable, and predictable, byproduct of the basic productive activities of modern life. Enterprise liability expresses the idea that responsibility for these harms and wrongs should be absorbed by the activities that engender them, and then be distributed across all those who benefit from those activities —not left on the individuals who happen either to inflict or to suffer them. This chapters seeks to explains the institutional logic of, and normative justification for, enterprise liability, and to show how and why it constitutes a distinctive regime of responsibility.
Monday, August 22, 2022
The 1897 English case of Wilkinson v. Downton is famous for establishing the equivalent of intentional infliction of emotional distress long before that was a viable cause of action in the United States. The case involved a pub patron playing an attempted practical joke by telling the pub owner's wife that her husband, who was away at the races, was "smashed up" in an accident involving a horse-drawn vehicle. The wife experienced traumatic emotional damages.
On the Incorporated Council of Law Reporting for England and Wales (ICLR) Blog, Professor Rachael Mulheron QC (Hon) of Queen Mary University of London Department of Law provides the background history of the case, including what became of the pub.
Thanks to David McFadden for the tip.
Thursday, August 18, 2022
Ken Abraham & Ted White have posted to SSRN Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial Process. The abstract provides:
This Essay was prepared for a Symposium at the Yale Law School, celebrating the one-hundredth anniversary of The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921. Revisiting these lectures presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal 'path', or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.
We then show how Cardozo employed the concepts of doctrinal paths and 'forks in the road' in several of his most famous torts cases. We conclude that when Cardozo’s discussion of those concepts is understood as one of the principal contributions of The Nature of the Judicial Process, the lectures can be understood to be of lasting as well as historical significance.