TortsProf Blog

Segal on Deterring Public Misconduct

Boaz Segal has published Utlilizing Tort Law to Deter Misconduct in the Public Sector.  

This article analyzes tort law’s ability to effectively guide the actions of
public officials and agencies and proposes separating tort judgments into
two components: the imposition of accountability and the imposition of
liability. This separation leads, in turn, to the conclusion that it is sufficient
to impose accountability—and to label the public official and agency
negligent—in order to effectively guide their conduct. An important
perspective is thereby added to the discourse on the deterrent power of tort
law. To date, tort law discourse has been largely dominated by the paradigm
of the economic analysis of law, thereby focusing on the financial sanction
component and ignoring to some extent the imposition of accountability.

Faure, Visscher & Weber on Speeding Up Tort Cases

Michael Faure, Louis Visscher & Franziska Weber have p0sted to SSRN The Impact of Speed and Accuracy in Personal Injury Cases:  A Law and Economics Analysis.  The abstract provides:

In various countries, initiatives have been taken to speed up the process to provide compensation to victims of personal injury. There are some concerns that speeding up the process (inter alia via alternative dispute resolution mechanisms) may go at the expense of accuracy. Within this paper, we use a law and economics framework to show that generally accuracy in individual cases comes at high costs but is less important than often thought. Neither from a deterrence, nor from a compensation perspective is perfect accuracy in each individual case the necessary aim to strive for. As long as the injurer is held to pay compensation that is on average correct, the right behavioral incentives are provided for both tortfeasors ex ante. Also victims are generally appreciative of averaging compensation payments. We discuss recent developments in claims handling in Belgium, Ireland and Sweden, showing how these countries have attempted to speed up victim compensation (and therewith increased victim satisfaction) and how these processes have been facilitated by a standardization of the compensation payments. We argue that the experiences in these countries show that speeding up compensation to victims is indeed possible and that the reduction of accuracy in specific cases (resulting from a standardization of the compensation) is not problematic, neither from the deterrence, nor from the compensation perspective. Cautious policy conclusions in awareness of the lack of a one-size-fits-all-approach are formulated.

JOTWELL Torts: Robinette on Lahav on Products Liability History

At JOTWELL, I review Alexandra Lahav's A Revisionist History of Products Liability.

Borghetti on the EU Product Liability Directive and Consumer Safety

Jean-Sébastien Borghetti has posted to SSRN Taking EU Product Liability Law Seriously:  How Can the Product Liability Directive Effectively Contribute to Consumer Protection?.  The abstract provides:

 

The 1985 Product Liability Directive (PLD) is currently being revised, with a view to adapting European Union product liability rules to the digital economy and new technologies. The ongoing discussion focuses on technical issues and apparently takes it for granted that the PLD as it stands adequately achieves the policy goals that were initially assigned to it, namely the establishment of a common market and consumer protection. However, a closer analysis shows that harmonising product liability is not needed to create a truly common market and, more importantly, that the PLD is not an effective instrument for consumer protection. A particular cause for concern is that almost no cross-border claims seem to be brought under the Directive, meaning that those injured by defective products are in effect left without a remedy when the producer is not located in the same country as they are. If the new PLD is to be more than mere poster legislation and to contribute effectively to consumer protection, more drastic changes to the current regime are needed than those that are currently being contemplated. The range of potential defendants should be broadened to include suppliers and online marketing platforms as a matter of principle, and the development risk defence as well as the application of a long-stop period in case of bodily injuries should be reconsidered.

Fox on the Abortion Double Bind

Dov Fox has posted to SSRN The Abortion Double Bind.  The abstract provides:

Medically needed abortion treatment is being delayed and denied by doctors who are understandably wary not to cross the line set by blurry medical exceptions to felony prohibitions against ending a pregnancy. Which raises a legal puzzle: the very abortion that state bans outlaw as first-degree homicide, other parts of our legal system command as essential care to save a patient’s life or preserve her health. Leaving clinicians trapped between (1) the risk of criminal conviction for ending a pregnancy that’s not dangerous enough, and (2) the risk of civil liability for not ending a pregnancy that’s too dangerous, under state malpractice law or a federal statute that requires emergency medical treatment. The chilling effect of ambiguous emergency exemptions doesn’t mean it would be better for states to specify eligible conditions. Detailed lists might reassure tentative physicians seeking to perform an abortion under particular circumstances. But any such preclearance would also operate to suppress the case-by-case discretion that’s critical to provide treatment that’s responsive to context under time-sensitive conditions. This article traces key features of the abortion double bind to the era before Roe v. Wade. And it spells out concrete actions that concerned professionals and the groups that represent them should take to reduce the risk of being sued or prosecuted for exercising reasonable medical judgement and good-faith legal interpretation.

Green Presents at the University of Chile

Mike Green, Reporter for R3:  Miscellaneous Provisions and Medical Malpractice, will speak at a conference in Chile.  On July 7 and 8, the Private Law Department at the University of Chile is hosting “II International Congress: Re-systematizing Civil Liability - Evolution of Imputation Factor, Causation and Damage,” featuring torts experts from South America, Europe, and the US.  Green will present ‘Concurring Innocent and Tortious Causes: The Third Restatement of Torts Punts.’  The ALI website has coverage here.

Iowa Law Hiring

The University of Iowa College of Law

Faculty Hiring Announcement

 

The University of Iowa College of Law anticipates hiring multiple entry-level or lateral faculty members, in a search that considers candidates specializing in a broad range of first-year and advanced subjects, including torts.

QUALIFICATIONS: Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are (or have the potential to become) recognized scholars and teachers and who will participate actively in the intellectual life of the College of Law.  In addition, we desire candidates who would bring valuable depth or breadth to the College of Law’s curriculum and to our institutional scholarly profile. We also desire candidates with a demonstrated ability to maintain effective and respectful working relationships with the campus community to uphold a standard of cultural competency and respect for differences in identity and perspective.

APPLICATION PROCEDURE: Candidates should apply either through the AALS Faculty Recruitment Services or by submitting a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu (refer to Requisition #74858).  When submitting their application materials, we invite candidates to draw attention to their strengths with respect to all the qualifications we are seeking.

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, religion, national origin, age, sex, pregnancy (including childbirth and related conditions), disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, or associational preferences.

For questions, please contact Faculty Appointments Committee at: [email protected].

Bell on Negligence and Assumption of Risk

Bernard Bell has posted to SSRN Unnecessary Dangers and Acceptance of Risk.  The abstract provides:

This essay traces the interplay of two critical bases for liability underlying much of the law of unintentional torts. The first, which dominates most discussions, is that actors should not unnecessarily endanger others. The second, and less frequently discussed, is that every person should have the power to voluntarily consent to risk of injury, and thus is entitled to disclosure of his or her risk of potential injury. As a corollary, when a person voluntarily and knowingly confronts a risk, the person should not be entitled to recovery if the risk comes to pass. This essay explores the various ways in which these two bases for liability play out depending on the circumstances, sometimes complementing each other and at other times conflicting. The essay is suitable for pedagogical use in a first-year torts class, and I have used it to good effect in summing up important aspects of the law of unintentional torts.

Segal on Alternatives to Joint and Several Liability

Boaz Segal's Practical Alternatives to the Rule of Joint and Several Liability:  Regulatory Negligence as a Case Study is available here.

Fourth Circuit: TSA Screeners Can Be Sued Pursuant to FTCA

The Fourth Circuit joined the Third and Eighth Circuits in holding that TSA screeners are subject to suit pursuant to the Federal Tort Claims Act.  Osmon v. United States, 66 F.4th 144, 147 (4th Cir. 2023) (“[T]he FTCA permits people who allege they were assaulted by TSA screeners to sue the federal government.”).

Steininger on Fault and Strict Liability in the Principles of European Tort Law

Barbara Steininger has posted to SSRN Art.4:201 Petl:  Revisiting the Grey Areas between Fault and Strict Liability.  The abstract provides:

In 2005, the European Group on Tort Law (EGTL) published the text and commentary of its “Principles of European Tort Law” (PETL). With art. 4:201, the PETL include a rule on the reversal of the burden of proving fault which is intended to cover the grey areas between fault-based and strict liability. Almost 18 years after publication of the PETL, the current paper aims at revisiting these grey areas between strict and fault-based liability. When doing so, the paper first deals with questions of terminology and outlines what is meant by the notion of grey areas between strict and fault-based liability. In a second step, the way these grey areas are dealt with in the Principles is examined and, finally, a few comments on art. 4:201 PETL and the way forward are made.

USSC: Fraud and Bankruptcy Discharge

 The Court held that the 11 U.S.C. § 523(a)(2)(A) exception to discharging debt for money obtained by fraud extends to an unknowing business partner.  Bartenwerfer v. Buckley, 598 U.S. ___, ___, 143 S. Ct. 665, 670, 214 L. Ed. 2d 434, 439 (2023).

JOTWELL Torts: Engstrom on Jolly, Hans & Peck on Juries

At JOTWELL, Nora Freeman Engstrom reviews Richard Jolly, Valerie Hans & Robert Peck's The Civil Jury:  Reviving an American Institution.

Feedspot Top 20 Products Liability Blogs

The list is here.

Goldberg, Gramling & O'Rourke on Pharmaceutical Preemption

Phil Goldberg, Christopher Gramling & Sarah O'Rourke have published A Prescription for Pharmaceutical Preemption.  The abstract provides:

Determining liability over prescription drugs is a balancing act.  For some people, medicine can save their lives or enhance their well-being.  But, as medicines can also come with side effects, some people will have unavoidable and perhaps serious adverse reactions.  The United States Food and Drug Administration (FDA) works with manufacturers of prescription drugs to manage known public risks.  The FDA assesses the benefit-risk analysis for each drug and must approve the design and warnings before the drug can be made, marketed and sold.  Once on the market, the FDA continues to work with the manufacturers to identify risks and assure the warnings that accompany the drugs continue to provide adequate information about these risks.  Physicians then manage a patient’s personal risk by deciding, often through informed consent by the patient or responsible person, whether a drug’s benefit-risk profile is appropriate for that patient.

Noll & Zimmerman on MDL Leadership

David Noll & Adam Zimmerman have posted to SSRN Diversity and Complexity in MDL Leadership:  A Status Report from Case Management Orders.  The abstract provides:

In multidistrict litigation, as elsewhere, personnel is policy. As MDL has become a major site for aggregate litigation, commentators have raised concerns that large-scale products liability cases are unduly influenced by a small cadre of elite lawyers whom courts repeatedly appointed to serve in the most powerful MDL leadership roles. Repeated appointments of these "repeat players," commentators worry, facilitate self-dealing, suppress dissent, and aggravate conflicts of interest seen in other areas of aggregate litigation. These concerns about MDL overlap with broader concerns across the bench and bar about the degree to which white people and men dominate important leadership posts, to the exclusion of younger attorneys, women, LGBTQ+ people, and attorneys of color.

In response to these concerns, prominent authorities urged MDL courts to adopt a number of reforms. They recommended that judges appoint leaders through open, competitive processes; create additional leadership posts and committees; and appoint leaders for limited terms in order to create more opportunities for new attorneys to participate in leadership. But, outside of a handful of highly publicized cases, we have little empirical evidence of whether MDL leadership appointments changed in the ways that reformers proposed. This Article—part of a larger, ongoing study of the nature and functions of MDL leaders and the MDL model of aggregate litigation—begins to fill that gap. Drawing on a dataset of thousands of filings and orders that were entered in sixty-eight products liability MDLs pending in June 2019, we report data on the size, composition, and appointment process for MDL leadership slates, and changes in the makeup of leadership slates in the eighteen-year period our dataset covers.

Our data tentatively suggest that reformers' calls for larger, complex leadership slates and frequent competitive leadership appointment processes went unheeded. Examining trends in the size and structure of MDL leadership slates in products liability MDLs, we find little evidence that courts implemented the structural changes that the reformers suggested. Yet, while leadership appointment practices and the complexity of MDL leadership slates do not appear to have changed during the period we studied, we find intriguing changes in who is being appointed to leadership posts. Slightly less than a quarter of leadership appointments in our data went to female attorneys, suggestive of only a trivial increase in women's representation on leadership slates compared to earlier studies. But the majority of leadership appointments also did not go to super-elite repeat player attorneys. And, comparing our findings with earlier work that examined MDLs pending in 2013, we find substantial movement in the attorneys and firms whom MDL courts appointed most frequently to leadership posts.

These findings complicate received wisdom about MDL leadership posts. While we document considerable continuity in who is being appointed to MDL leadership posts and how, our data are suggestive of a deep bench of potential future MDL leaders for judges to choose from, as well as the opportunity for even further change in the future.

Hans & Robbennolt on Tort Decision-Making

Valerie Hans & Jennifer Robbennolt have posted to SSRN Tort law decision-making:  Psychological and legal perspectives.  The abstract provides:

This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

Miller on Formalism, Legality, and the Rule of Law

Paul Miller  has posted to SSRN Formalism, Legality, and the Rule of Law.  The abstract provides:

This chapter examines the relationship between formalist interpretive methodology and ideals of legality and the rule of law. In other work, I have argued that the structural formality of law and deliberatively formalistic legal reasoning are closely associated with legality and the rule of law. Here, I make the case that association is both conceptual and normative. The very ideas of legality, and of the rule of law, are such as to imply the formality of law and the necessity of deliberatively formalistic engagement with the guidance it supplies. In turn, a limited set of values that belong per se to legality and the rule of law attach by implication to legal form and legal formalism. Should a case need to be made for the law’s reliance on form, for its expectation of deliberative formalism, and/or for sophisticated scholarly formalism, one can build it through appeal to the values advanced by the achievement of legality in comportment with rule of law baselines.

That said, all varieties of formalism engage with extant law and its posited morality. As a matter of methodological choice, sophisticated scholarly formalists focus on interpreting the law as found, and on the public justification(s) given for posited law by lawmakers. This means that one must be mindful of taking the bad with the good. The practical reasonableness of our laws, and of the reasons given in public justification for them, is a contingent thing. It turns on more than the law’s responsiveness to the values of legality and the rule of law. One ought to be aware of the moral limits of legal form as well as the moral and methodological limits of legal formalism. I argue that the moral limits of legal form can be discerned only if due attention is paid to the values of practical reason, of moral right and duty, of political morality, of justice, and of the good. And I suggest that the methodological limits of scholarly formalism are (a) implied by awareness of the moral limits (relative to the moral promise) of legal form; and (b) recognition of the ways in which assessment of the soundness of law points beyond the juridical to normative moral and political theory, and to empirical examination of the likely or actual effectiveness of the normative guidance supplied by law.

Tortsprof Don Gifford Named Distinguished University Professor at Maryland

Don Gifford, deservedly, has been named Distinguished University Professor at the University of Maryland.  From the announcement:

“He is, quite simply, a truly leading scholar in the [torts] field recognized as such both in America and internationally," wrote Judge Guido Calabresi, Sterling Professor Emeritus and former dean of Yale Law School and senior judge on the United States Court of Appeals for the Second Circuit, in his letter in support of the nomination. “But every bit as important as his magnificent reputation is the quality of his scholarship. I find myself, again and again, going to what Don has written and edited in my own scholarship and my judicial opinions. And to be blunt, there are mighty few academics of whom I can say that...”  

As dean of the law school from 1992 through 1999, Gifford initiated the efforts to build the current law school building, obtained the legislative approval and funding for the building, raised a majority of the private contributions for it, and saw the building project through its initial architectural design phases. Under his leadership, the level of private giving to the law school quadrupled.

Baker on Insurance in Mass Tort Litigation

Tom Baker has posted to SSRN Where's the Insurance in Mass Tort Litigation?.  The abstract provides:

This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their liability insurers, if any, later; and (4) many mass tort plaintiff law firms rely on non-recourse litigation funding that resembles the earliest forms of commercial insurance – bottomry and respondentia – and there is an emerging insurance market that reduces the cost of this funding and may one day supplant it. In addition to providing a new understanding of the role of insurance in mass tort litigation, this research provides empirical support for two of the conceptual insights in Kenneth Abraham’s Liability Century: (1) the mismatch between product liability and product liability insurance that emerged near the end of the 20th Century, and (2) the increasingly insurance-like function of tort law.