Tuesday, January 26, 2021
Yotam Kaplan has posted to SSRN In Defense of Compensation. The abstract provides:
In recent years, tort victims in the U.S. have been finding it increasingly difficult to secure compensation through the legal system. This decline of compensation is the result of a decades-long campaign by corporate defendants to reshape the litigation landscape in their own favor. The most recent volley in this ongoing battle is an unprecedented, forceful attack against compensation launched by the Trump Administration. Regrettably, the inaccessibility of compensation often spells tragedy for tort victims. To justify these attacks, supporters of the anti compensation campaign utilize the economic theory of tort law to formulate forceful arguments against compensation as a general legal principle.
This Article demonstrates that the prevailing economic argument, and the legal order that follows therefrom, is based on a fundamental oversight. In particular, current economic theory fails to consider the possibility of investments by victims to shift harm to others. This Article is the first to examine the possibility of harm shifting in the context of tort doctrine.
This additional consideration proves to be crucial for the analysis of compensation. Existing economic theory argues that compensation is “inefficient” as it annuls victims’ incentive to invest in self-protection. This argument is reversed once we consider the possibility of harm-shifting. When investing to protect themselves, tort victims can pass harms on to others. Such investments are wasteful as they are designed only to redistribute harms, not to eliminate them. Therefore, compensation can actually prove beneficial precisely because it annuls victims’ incentive to invest in self-protection.
Once harm-shifting investments are considered, the economic argument against compensation is overturned. The case, therefore, for compensation is stronger than economic theory currently leads us to believe, and action must be taken to reverse the trending decline of compensation.
Thursday, January 21, 2021
Gregory Parks & Elizabeth Grindell have posted to SSRN two pieces on hazing. The first is The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability. The abstract provides:
In this article, we explore the criminal liability that adheres to individuals and organizations as well as the development of criminal statutes in this domain. Also, we grapple with member, chapter, and national organization civil liability as well as university and university staff civil liability. This article is part of a series of articles that have tried to make sense of the underlying factors that undergird and propel hazing. It also serves as a basis for a book trilogy I am currently working on about hazing—its roots and solutions.
The second is The Litigation Landscape of Fraternity and Sorority Hazing: Defenses, Evidence, and Damages. The abstract provides:
In this article, we explore the various approaches to litigation defense that may be employed—e.g., the role of the insurance industry, arbitration and its pitfalls, assumption of risk, comparative fault, contributory negligence, and consent. We also explore evidentiary matters—e.g., poems and songs, signs and symbols, social media, organizational culture, how discovery devices may be used, and the role of expert witnesses. Lastly, we explore damages—general, actual, punitive, and the difficulty of collecting them.
Tuesday, January 19, 2021
Thursday, January 14, 2021
Tuesday, January 12, 2021
I have posted to SSRN Scholars of Tort Law: Professor William Lloyd Prosser (1898-1972). The abstract provides:
This chapter, presented at Oxford at the “Scholars of Tort Law” conference, is concerned with William Prosser, the most important U.S. tort scholar of the twentieth century. Prosser exerted considerable influence on the development of several specific tort doctrines, notably strict products liability, privacy, and intentional infliction of emotional distress. Instead of his well-known contributions to these discrete torts, this chapter focuses more broadly on Prosser’s overall effects, particularly regarding the paramount tort of negligence. Prosser attempted to adjust negligence to two Realist challenges: Realists’ belief in the public nature of seemingly private disputes and the undermining of certainty caused by emphasising the facts of each case. To the first challenge, Prosser reconceptualised the elements of negligence as involving public policy choices. To the second, Prosser attempted to present a negligence formula that was both flexible and predictable. Prosser succeeded in presenting a more flexible negligence formula incorporating public policy factors, but failed in enhancing predictability, with far-reaching consequences for tort law as a compensatory mechanism.
Friday, January 8, 2021
Cristina Tilley has posted to SSRN Private Law, Public Law, and the Production of American Virtue. The abstract provides:
This Essay, contributed to a festschrift celebrating the scholarship of Marshall Shapo, suggests that the time has come to revitalize private law – tort law, in particular – as an engine of national virtue. The groundswell of activism in the summer of 2020 lends itself to particularizing this argument to the virtue of racial justice, but it is equally applicable to gender justice, economic justice, and innumerable other areas where social fracture burdens human flourishing. The piece summarizes the intellectual history that has led legal academics to treat public law as the only legal intervention applicable to social ills like racism. It then pivots to survey how disciplines outside law understand the component parts of racism and the most effective responses to them. Sociologists have observed that systemic drivers of racism which play out in public are made possible in large part by individual drivers of racism which play out in private; these include, “most insidiously” white denial and apathy about racial inequality. Political scientists have suggested that a powerful mechanism to address this private racism is the centering of Black people as narrators of their life experiences and the positioning of white people as attentive listeners to those stories. The piece goes on to suggest that tort litigation has a unique ability to facilitate this process, and thus may produce distinct shifts in private attitude that complement the systemic reforms at the heart of public law. Finally, in an act of legal archaeology, the piece shows these processes at work in the iconic battery case of Fisher v. Carrousel Motor Hotel, Inc. In conclusion, it suggests that Marshall Shapo’s entire body of work can be understood as a commitment to tort’s virtue-production capacity.
Thursday, January 7, 2021
Marc DeGirolami has posted to SSRN Reconstructing Malice in the Law of Punitive Damages. The abstract provides:
Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, as the Supreme Court has recently stated, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both.
This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is therefore entitled to greater redress.
Tuesday, December 29, 2020
Donal Nolan has posted to SSRN Scholars of Tort Law: Professor Sir Percy Winfield (1878-1953). The piece comes from a conference at Oxford in 2018 and published as a book last year; the abstract provides:
This chapter is concerned with Sir Percy Winfield, arguably the most influential scholar of the English law of tort in the relatively short history of the subject. The chapter is divided into three main parts. The first part (‘The Life’) consists of a short biography of Winfield. In the second part (‘The Work’), I discuss Winfield’s principal writings on tort law, their reception and their influence. And in the final part (‘The Scholar’), I seek to identify Winfield’s key characteristics as a scholar. I conclude that a number of reasons can be identified for the impact and endurance of Winfield’s writings on tort: his technical brilliance; his intellectual openness; his clear and attractive style; his prescience and forward-thinking approach; his thoroughgoing pragmatism; and a measure of good fortune. Underlying all of this, however, lay an even more basic foundation for his scholarly achievements, namely a profound and very broad knowledge of the common law and its history.
Monday, December 21, 2020
Barbara Evans & Frank Pasquale have posted to SSRN Product Liability Suits for FDA-Regulated AI/ML Software. The abstract provides:
The 21st Century Cures Act confirmed the FDA’s authority to regulate certain categories of software that, increasingly, incorporate artificial intelligence/machine learning (AI/ML) techniques. The agency’s September 27, 2019 draft guidance on Clinical Decision Support Software proposed an approach for regulating CDS software and shed light on plans for regulating genomic bioinformatics software (whether or not it constitutes CDS software). No matter how the FDA’s regulatory approach ultimately evolves, the agency’s involvement in this sphere has an important – and underexamined – implication: FDA-regulated software seemingly has the status of a medical product (as opposed to an informational service), which opens the door to product liability for defects causing patient injury. When a diagnostic or treatment decision relies on FDA-regulated CDS software, will mistakes invite strict liability, as opposed to being judged by the professional or general negligence standards of care that traditionally governed diagnostic and therapeutic errors? This article explores the policy rationales for product liability suits and asks whether such suits may have a helpful role to play as an adjunct to FDA oversight in promoting safety, effectiveness, and transparency of CDS software as it moves into wider use in clinical health care settings.
Wednesday, December 16, 2020
Mark Rothstein and Julia Irzyk have posted to SSRN Employer Liability for "Take-Home" COVID-19. The abstract provides:
Workplace exposure to SARS-CoV-2 has been a source of morbidity and mortality from COVID-19, especially for “essential workers,” such as those employed in health care and meatpacking. Many family members of these workers also have become infected and died. If the employee’s exposure was the result of the employer’s negligence, the family member or the family member’s estate might be able to recover from the employer using the “take-home” liability theory first developed in asbestos cases. This article discusses the elements of these cases and how they relate to workers’ compensation, OSHA enforcement, and other aspects of workplace safety and health protections.
Monday, December 14, 2020
At JOTWELL, Jenny Wriggins reviews Merle Weiner's Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence.
Friday, December 11, 2020
Martha Chamallas & Lucinda Finley have edited Feminist Judgments: Rewritten Torts Opinions. The blurb provides:
By rewriting both canonical and lesser-known tort cases from a feminist perspective, this volume exposes gender and racial bias in how courts have categorized and evaluated harm stemming from pre-natal malpractice, pregnancy loss, domestic violence, sexual assault and harassment, invasion of privacy, and the award of economic and non-economic damages. The rewritten opinions demonstrate that when confronted with gendered harm to women, courts have often distorted or misapplied conventional legal doctrine to diminish the harm or deny recovery. Bringing this implicit bias to the surface can make law students, and lawyers and judges who craft arguments and apply tort doctrines, more aware of inequalities of race, gender, class, and sexual orientation or identity. This volume shows the way forward to make the basic doctrines of tort law more responsive to the needs and perspectives of traditionally marginalized people, in ways that give greater value to harms that they disproportionately experience.
Tuesday, December 8, 2020
Alfred Yen & Matthew Gregas have posted to SSRN Liability Waivers and Participation Rates in Youth Sports: An Empirical Investigation. The abstract provides:
This article explores whether there is empirical support for the assertion that enforcing liability waivers signed by parents increases participation in youth sports. To the authors' knowledge, it is the first and only article to do so.
This inquiry is critically relevant to a sharp split in contract law. Youth sports providers typically condition a minor’s participation on a signed parental waiver of the minor’s ability to sue for negligence. There are many reasons to doubt the enforceability of such releases. They are contracts of adhesion, their terms might be unconscionable, and they expose minors to increased risk of injury. Nevertheless, states do not consistently invalidate these releases. Of states that have explicitly considered the question, roughly one-third enforce youth sports releases, and they do so for a very specific reason, namely a professed belief that enforcing youth sports releases increases youth sports participation. Thus, if enforcing youth sports releases does not actually increase youth sports participation, then the primary reason given for doing so evaporates.
Our article searches for empirical evidence by statistically analyzing a database constructed from a fifty-state survey of the law covering 1988-2014, high school sports participation numbers reported by the National Federation of State High School Associations over the same years, data from the National Center for Education Statistics, and data from the United States Census. We found no statistically significant relationship between enforcing youth sports releases and increased participation in high school youth sports.
Monday, December 7, 2020
Cathy Sharkey has posted to SSRN Holding Amazon Liable As a Seller of Defective Goods: A Convergence of Cultural and Economic Perspectives. The abstract provides:
Amazon’s e-commerce business, which offers a platform for third-party vendors, defies conventional categorization for products liability purposes. Professor Marshall Shapo’s conception of “tort law as a cultural mirror” sheds light on how products liability law has evolved so as to hold Amazon liable even as the seismic shift away from brick-and-mortar physical stores to the virtual marketplace has transformed the reasonable expectations of consumers. Holding Amazon liable is likewise supported by the economic perspective embodied in the “cheapest cost avoider” analysis; namely, that Amazon is best situated to take actions to minimize risks and prevent accidents from defective products. This convergence of cultural and economic perspectives and the emergence of a culturally specific norm of efficiency-as-responsibility in the context of the virtual marketplace, signals tort law’s ever moving march forward into the modern era.
Friday, December 4, 2020
Cathy Sharkey has posted to SSRN Modern Tort Law: Preventing Harms, Not Recognizing Wrongs. The abstract provides:
Part I of my review of John Goldberg and Benjamin Zipursky’s (GZ), Recognizing Wrongs (Harv. U. Press 2020) reframes the book as, first and foremost, a sustained critique of the law-and-economics, deterrence-focused view of tort law, rather than (as GZ set forth) the affirmative case for the “wrongs and redress” account of tort law. “Cheapest cost avoider” tort theory (as my chosen stand-in for instrumentalist, deterrence-based theories) plays the role of an antagonist, against which GZ construct their theory of wrongs and redress. Part II inverts the role of “cheapest cost avoider” as the protagonist of some of the most significant developments in contemporary tort law, focusing on its central role in the rise of strict products liability in tort and especially its extension to cover bystanders. Part III argues that law-and-economics deterrence-based theory holds the most promise for judges facing two primary challenges of modern torts: (1) containing modern risks at the cutting edge of the regulatory state; and (2) addressing widespread harms.
Friday, November 27, 2020
Monday, November 23, 2020
John Witt has posted to SSRN Radical Histories/Liberal Histories in Work Injury Law. The abstract provides:
Nate Holdren has written a brilliant, impassioned, and intellectually stimulating book on the legal history of industrial accidents. According to Holdren, work injuries were at their core a form of labor exploitation. He describes the law of work accidents as a machinery of injustice that bolstered the legitimacy of a violent and inhuman capitalist system. He fiercely critiques the workers’ compensation reforms enacted by progressive reformers a century ago as legitimating a form of systematic labor violence. He insists on recognizing and attending to the dignity of each accident victim, both in the content of his argument and as a matter of literary form. Injury Impoverished is a welcome if unsettling rebuke to complacent accounts of the field, perhaps my own among them. But Holdren’s analysis also raises many questions. Holdren attributes little value to the dramatically safer workplaces of the middle of the twentieth century. His cautious admiration for the litigation system of the years before workers’ compensation rests on a fantastical conception of the way 19th-century tort law actually worked. He calls for an impossibly demanding form of "justice as recognition" from the law. He misses the ways in which workers co-opted new forms of accident law and turned them to their own interests. And his single-minded focus on commodification and the point of production leads him to discount the surrounding political and legal institutions that shaped the social meaning of work injuries.
Tuesday, November 17, 2020
Mark Geistfeld has posted to SSRN his book review of John Goldberg & Ben Zipursky's Recognizing Wrongs. Entitled Tort Law and Civil Recourse, the abstract provides:
In Recognizing Wrongs (Harvard U. Press 2020), Professors John Goldberg and Benjamin Zipursky defend their long-standing thesis that the primary purpose of tort law is to implement the principle of civil recourse, which “can be summarized as follows: A person who is the victim of a legal wrong is entitled to an avenue of civil recourse against one who wrongs her” (p. 3). To provide an adequate account of tort law, the principle of civil recourse cannot simply describe the formal structure of tort liability; it must also explain the substantive nature of wrongdoing. Most of the book strives to provide such an account, successfully tying the principle of civil recourse to a particular conception of tort law wholly defined by conduct-based duties of noninjury, the breach of which necessarily involves prohibited behavior that mistreated the plaintiff. Goldberg and Zipursky accordingly conclude that “the point of tort law is to define and prohibit certain forms of mistreatment, and to provide victims of such mistreatment with the ability to use civil litigation to obtain redress from those who have mistreated them” (p. 266).
The argument turns on mistreatment and the associated prohibition of injury-causing behavior, each of which is defined in problematic terms. Many tort rules function as forms of no-fault or strict liability, even when not expressly denominated as such. According to Goldberg and Zipursky, these rules are defined by an “unforgiving” behavioral standard not to cause injury that can be violated by even “conscientious and diligent actions” (p. 193). In addition to begging the question of why this behavior meaningfully mistreats the plaintiff, Goldberg and Zipursky do not address the implications of such a rule. On their account, the violation of any tort duty is prohibited. Insofar as one ought to avoid acting in a legally prohibited manner, dutyholders who cannot comply with an “unforgiving” behavioral obligation should avoid engaging in the risky activity altogether—an extreme obligation that would prevent most of us from driving automobiles. Something about this argument has gone awry.
As this Review shows, civil recourse readily accommodates an alternative interpretation of tort law that substantially limits the relevance of mistreatment, which in turn limits the importance of civil recourse to the remedial aspects of modern tort law. Although undoubtedly important, the redressive structure of tort liability does not supply the “point of tort law.” Goldberg and Zipursky depict tort law in a manner that is faithful to its historical origins but is now anachronistic. The role of mistreatment within the early common law stemmed from the customary norms that governed behavior in the state of nature. Lacking protection of a centralized government, individuals needed to defend their honor in order to ward off future attacks. Even in cases of accidental harm, suffering injury at the hands of another necessarily involved a form of mistreatment—a loss of honor—that entitled the victim to obtain compensation from the injurer, a form of interpersonal redress for mistreatment that functioned as a rule of strict liability. By enforcing these norms, the early common law was fully animated by the principle of civil recourse.
Over time, social conditions have changed. Physical security no longer depends on one’s honor. To protect individuals from physical harm, modern tort law focuses on the prevention and compensation of injury. Mistreatment matters only insofar as it involves highly culpable wrongdoing—a distinctive threat to physical security redressed by punitive damages. Outside of this extraordinary remedy, mistreatment does not substantively shape the tort rules governing accidental physical harms. Tort liability still satisfies the principle of civil recourse—plaintiffs receive redress from defendants who have violated their tort rights and thereby wronged them—but the primary purpose of modern tort law is defined by its substantive rights and correlative obligations, not by the remedial structure of civil recourse.
Monday, November 16, 2020
Betsy Grey & Samantha Orwoll have posted to SSRN Tort Immunity in the Pandemic. The abstract provides:
A fundamental premise of our common law tort system is that the risk of liability will help deter unsafe behavior. Yet, as we continue to battle the COVID-19 pandemic, proposals abound to shield businesses from tort liability. Politicians have even conditioned fiscal-stimulus for our ailing economy on passage of tort liability shields. This essay examines the pros and cons of such shields, and concludes that their questionable benefits do not justify loss of the deterrent value of tort liability. Although businesses would surely prefer to avoid lawsuits, those that act reasonably--even without tort immunity--face little risk of damage judgments and would be hard prey for plaintiff personal-injury lawyers. To be found negligent, businesses would need to flaunt such basic precautions as social distancing, gloves, masks and disinfecting measures. Presumably, we should not encourage such behavior by removing the tort system’s incentives to operate safely. And even if a business arguably could have done more to keep their customers and employees safe, plaintiffs would still have the tall burden of establishing causation--that they caught the disease because of the defendant’s neglect as opposed to other sources. Beyond all that, businesses already enjoy the protection of workers’ compensation laws, and strong defenses like regulatory compliance. On the other side of the equation, creating immunity shields may signal to employees and customers that they return to work or patronize business at their own peril--creating an anxiety that undermines the trust and confidence we want to instill to restart of our economy. Finally, other systems, such as insurance and government compensation funds, can be used to encourage businesses to reopen and stay open.
Thursday, November 12, 2020
Betsy Grey has posted to SSRN Sex-Based Brain Differences and Emotional Harm. The abstract provides:
Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.
This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.