Friday, April 19, 2019
Matthew Shapiro has posted to SSRN Civil Wrongs and Civil Procedure. The abstract provides:
Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.
Wednesday, April 10, 2019
John Witt, Ryan Martins & Shannon Price have posted to SSRN Contract's Revenge: The Waiver Society and the Death of Tort. The abstract provides:
A generation ago observers confidently predicted the death of contract and the triumph of tort. But contract has risen from the dead. Contracts waiving tort rights have become ubiquitous in the American marketplace. We survey the history and doctrine of exculpatory clauses in a wide variety of consumer contracts. We find that mid-twentieth-century skepticism about waivers has given way to a new age of increased waiver enforcement. The story of waiver enforcement, we conclude, is of a piece with the resurgence of free contract and market thinking in the 1980s and 1990s, a process we call “contract’s revenge.”
Monday, April 1, 2019
Thursday, March 28, 2019
Ken Abraham & Ted White have posted to SSRN Torts Without Names, New Torts, and the Future of Liability for Intangible Harm. The abstract provides:
Torts have names for a reason. A tort without a name would very nearly be a contradiction in terms, because it would not describe itself. But torts do not always get names immediately upon birth. Typically, it takes some time to recognize what they are, because they are in search of an identity or have a vaguely defined content. The law of torts of the future may well experience this process, as it works through the rights and liabilities that govern harms characteristic of the information age: invasions and misuses of digitized personal data, and sexualized attitudes and misconduct, for example. The dominant form that new liabilities took in the twentieth century was through the establishment of new, particularized torts. An alternative but much less known form of liability, however, competed with the named-tort approach during this same period, and to some extent still competes with it. This is the application of what we call a “residual category” of liability. In our judgment, however, a residual category approach to the intangible harms of the twenty-first century should and would fail in the same way, and for the same reasons, that this approach largely failed in the twentieth century. The new torts of the twenty-first century will have to be particular, named torts. This Article explains why this will be the case, and then undertakes to demonstrate how these explanations apply to the most salient forms of intangible harm on the current scene–harms that inevitably will be candidates for tort liability in the years to come. We identify the aspects of each form of loss that we think may well become actionable through the adoption of new torts or the expansion of existing torts, as well as the aspects of loss that will continue not to be actionable.
Wednesday, March 20, 2019
Nathan Oman has posted to SSRN John Calvin's Quarrel with Civil Recourse Theory. The abstract provides:
This essay traces in skeletal form a history of the Christian critique of litigation, with a focus on the well-articulated argument of the Reformation theologian John Calvin. Most of contemporary private law theory focuses on the idea of liability. For law and economics liability is a price placed on certain conduct in order to create optimal incentives. For moral theorists, such as partisans of corrective justice theory in tort law, liability is the manifestation of a duty of repair that the law imposes on wrong doers. Missing from these theories is the agency of the plaintiff, yet this is precisely the feature of private litigation that Christianity has criticized through the centuries. In contrast to other contemporary approaches to private law, civil recourse theory emphasizes the way that private law empowers plaintiffs to act against those that have wronged them. In contrast to much of contemporary private law theory, Calvin’s argument is indifferent to the scope of duties and liabilities. Rather, like civil recourse theorists, he focuses on the agency of plaintiffs. Calvin’s argument, however, is critical of key assumptions of those theorists. First, it suggests that generally speaking instituting a suit is immoral. Second, Calvin’s argument suggests that revenge and “the right to be punitive,” which civil recourse theorists have offered as the basis for punitive damages, cannot be proper reasons for the law. Finally, and most controversially, Calvin seems to reject the “right to reparation” on which some civil recourse theorists have sought to normatively ground private law.
Friday, March 15, 2019
Elizabeth Weeks has posted to SSRN Healthism in Tort Law. The abstract provides:
This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired driver and physician cases, failure to mitigate, intentional infliction of emotional distress, and other tort law rules. It concludes by applying the book's decisional rubric for distinguishing between permissible and impermissible health status differentiation to specific examples from tort law.
She presented this piece at AALS in January, and it is forthcoming in the Journal of Tort Law.
Wednesday, March 13, 2019
Nathaniel Donahue & John Witt have posted to SSRN Tort as Private Administration. The abstract provides:
What does tort law do? This Article develops an account of the law of torts for the age of settlement. A century ago, leading torts jurists proposed that tort doctrine’s main function was to allocate authority between judge and jury. In the era of the disappearing trial, we propose that tort law’s hidden function is to shape the process by which private parties settle. In particular, core doctrines in tort help to structure and sustain the systems of private administration by which injury claims are actually resolved. Though an observer could hardly guess it from judge-centric theories of tort or by reading the typical reported appellate cases, repeat-play stakeholders such as the plaintiffs’ bar, insurers, and others are developing and managing claims resolution facilities that have turned the resolution of one-off tort claims in the United States into something akin to aggregate litigation or a public compensation program. Hidden deep in the shadows of the law, private administration is becoming a standard feature of torts practice with substantial implications for the theory of tort law and litigation.
Thursday, March 7, 2019
Barbara Pfeffer Billauer has posted two pieces on wrongful life to SSRN. The first is The Sperminator as a Public Nuisance: Redressing Wrongful Life and Birth Claims in New Ways (AKA New Tricks for Old Torts). The abstract provides:
Faced with an increase in sperm bank “accidents” – the lacuna of suitable legal redress for sperm-bank imposed harms begs to be filled. This article demonstrates for the first time that some sperm-bank generated harms transcend violating the personal goals of the parent and the rights of the child. In addition, sperm bank errors infringe on societal rights by, for example, saddling it with health costs for children born with genetic diseases. Moreover, introducing inherited diseases into the gene pool in large numbers sets the stage for a public health crisis. To address these harms, I propose repurposing an old of cause action, the private claim of a public nuisance. This harm-driven approach expands the class of would-be plaintiffs, broadens the spectrum of allowable claims, and bypasses restrictions imposed by traditional negligence law. Insofar as punitive damages are also allowed, the claim also has the potential to act as a deterrent of a host of sub-par sperm bank practices. I also discuss the implications of holding the sperm bank to fiduciary standards.
The second is Wrongful Life in the Age of CRISPR-CAS: Developing a Legal Fiction for Wrongful Gamete Manipulation Cases. The abstract provides:
Virtually all wrongful life claims (those brought by children harmed prior to gestation), are denied. The basis for these holdings pivots around refusal to allow recompense for actions which result in the child’s being born, an offshoot of cases where parents are denied the right of abortion. We therefore are faced with a legal lacuna, where children suffering serious harms as a result of wrongful genetic manipulation (WGM) caused by the latest reproductive technologies are legal orphans. This article details avenues of potential harm generated by the latest technologies before proceeding to create a legal fiction, “the conceptual being” which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury and unjust enrichment.
Wednesday, March 6, 2019
Andy Popper has posted to SSRN Rethinking Feres. The abstract provides:
In 1946, the ancient wall of sovereign immunity gave way with the passage of the Federal Tort Claims Act (FTCA) opening the courthouse doors to those harmed by individuals acting on behalf of the federal government. Liability was limited from the outset by the vague and vexing discretionary function exception as well as limits on punitive damages, jury trials, attorney’s fees, injuries sustained abroad, and injuries sustained in combat. Unresolved by the FTCA was the fate of service members injured by actions incident to military service but outside of armed conflict.
Four years after the passage of the FTCA, the Supreme Court decided Feres v. United States, and in a few pages placed dramatic limits on the rights of millions of Americans. The Court rationalized these limitations on the need to maintain order and discipline, chain-of-command, unfair or unjust enrichment, and efficiency. The force of this decision was apparent immediately: most of those injured incident to military service would be denied access to the very system of justice they pledged to defend. Also lost was the potent deterrent effect of civil tort sanctions and the corresponding accountability those sanctions generate.
On enlistment, service members agree to be bound by a separate set of rules, a system bounded by discipline and unquestioning compliance with lawful orders. That oath does not include the concession to be without recourse should they be injured by impermissible misconduct. More than a half century ago, the late Chief Justice Warren stated that “citizens in uniform” should not be stripped of their basic rights simply because they are members of the armed forces, and yet, to date, Feres continues to be the law of the land.
In recent years, those who serve have been thanked by presidents and lauded at the start of nationally broadcast sporting events. Service members are routinely called heroes – and they are. Yet these gestures are incomplete when accompanied by a deprivation of one of the basic rights due to all citizens. Those most entitled to it, those willing to fight and die for it, cannot experienced the great promise of our legal system: fair hearings, a level playing field – in short, the blessings of simple justice.
The challenge of this article is that the same immunity that shields wrongdoers has also played a role in the evolution of our unquestionably extraordinary and exceptional armed forces. These are potent competing forces. Against this backdrop, it is time to rethink Feres.
This article discusses Feres v. United States, the FTCA, the expansion of the “incident to service” prohibition, and makes the following recommendation: Feres should be overturned and the FTCA amended to allow access to justice in Article III courts for those injured by actions that are neither incident to nor essential to military service. These actions include sexual assault, rape, vicious and unjustified physical violence, clear or gross medical malpractice, repetitive incidents of driving under the influence, nonconsenting exposure to toxins, and invidious discrimination.
When those who engage in misconduct are held accountable, when government is obligated to remedy those wrongs, respect for order, discipline, and all standards will increase. When uniformly condemned actions are subjected to public scrutiny in Article III courts, the probability of future similar misconduct will decline.
Tuesday, March 5, 2019
Jill Wieber Lens has posted to SSRN Children, Wrongful Death, & Punitive Damages. The abstract provides:
Starting in the mid-nineteenth century, state legislatures created wrongful death claims, including claims for bereaved parents against the tortfeasor who killed their child. Legislatures limited recoverable damages to pecuniary damages, meaning parents could recover the lost economic contributions they expected to receive from their child during his minority, minus the costs of raising the child. That pecuniary damage measure still controls today, with most states now also allowing recovery of noneconomic loss-of-relationship damages, although many states also cap the recovery of noneconomic damages. In sum, parents’ recovery of damages for their child’s death—a personal and cultural tragedy—is limited to pecuniary damages, which today’s parents lack, and a possibly capped noneconomic damage award.
The first Part of this Article explores the historical context—the antiquated assumptions about children—existing when state legislatures adopted the pecuniary measure. Those assumptions rely on two realities of the nineteenth-century child—that he was likely to die in his youth, and that he was valued economically. The infant and child mortality rates were high in the nineteenth century, which historians agree caused parents to expect at least one of their children to die and possibly also caused parents to be indifferent to that child’s death. Relatedly, parents valued their children economically, most evident in still-increasing prevalence of child labor in the nineteenth century. Under these realities, a pecuniary measure of damages was appropriate. But these realities of the nineteenth-century child long ago faded. Child death is now a personal and cultural tragedy, a reality in which pecuniary damages make no sense.
The second Part of this Article suggests the adoption of a remedy consistent with the current tragedy of child death. That remedy is the exclusive use of punitive damages in wrongful death of children cases, a remedy for parents that is actually a substantive response to the death of a child and that could provide parents something significant and meaningful. The use of punitive damages is consistent with private redress punitive damage theory, empowering victims to obtain damages for the moral injury suffered, allowing parents to recover damages for the moral injury they suffer when their child is tortiously killed. The appreciation that parents suffer a moral injury better encapsulates parents’ actual experience—an experience involving much more than compensable grief. Also, punitive damages, unlike compensatory damages, actually express the wrongfulness of the wrongful death of a child.
Monday, February 25, 2019
Frank Vandall has posted to SSRN Tincher Unmasked. The abstract provides:
Over 76 years ago, Justice Traynor of the California Supreme Court called for the adoption of strict liability for products liability cases and for the rejection of negligence in such cases. The Supreme Court of Pennsylvania recently agreed in Tincher v. Omega Flex, Inc. Strict liability leads to corporate liability and this results in increased payments to victims and slightly lower profits. Corporations responded to strict liability with a firm embrace of the negligence cause of action, which puts both parties on an equal footing. This results in corporations winning more cases. The PLAC (an association of corporations that file amici briefs defending corporations) argued for negligence in Tincher.
In this paper I argue in favor of strict liability and support the Pennsylvania Supreme Court’s decision in Tincher.
Thursday, February 21, 2019
Tuesday, February 19, 2019
Ken Abraham has posted to SSRN Plain Meaning, Extrinsic Evidence, and Ambiguity: Myth and Reality in Insurance Policy Interpretation. The abstract provides:
Insurance coverage disputes are mostly about the correct interpretation of an insurance policy provision. But three myths confuse and confound thinking about the interpretation of insurance policies. The first myth is that an unambiguous insurance policy provision -- a provision with a “plain” meaning -- carries that meaning on its face. The second myth is that, if a policy provision has a plain meaning, then under the plain-meaning “rule,” sources of meaning outside the four corners of the insurance policy -- sources “extrinsic” to the policy -- are not admissible to aid in interpreting the provision. The third myth is that ambiguous policy provisions are necessarily construed against the drafter, which in insurance is almost always the insurer. In reality, all three myths seriously oversimplify how interpretation takes place. The problem, however, is not that, in acting in ways that are inconsistent with the simplifying myths, the courts are undermining desirable rules by quietly following other, undesirable rules. On the contrary, we do not need to change the rules or practices that govern insurance policy interpretation. Rather, we need more clarity and a deeper understanding of the sophisticated, complex rules and practices that are actually in force and are actually applied in practice. This Article aims to provide both.
Thursday, February 14, 2019
Wednesday, February 13, 2019
Charles Silver, David Hyman, and Bernard Black have posted to SSRN Fictions and Facts: Medical Malpractice Litigation, Physician Supply, and Health Care Spending in Texas Before and After HB 4. The abstract provides:
This article, written for a symposium issue of the Texas Tech Law Review, summarizes our research on the impact of Texas’ 2003 medical malpractice (“med mal”) reform. Our central findings include:
(1) there were no major changes in the frequency of med mal claims, payout per claim, total payouts, defense costs, or jury verdicts that can explain the spike in premiums for med mal liability insurance that occurred in Texas in the years before the 2003 reforms;
(2) Texas’ supply of direct patient care physicians grew steadily, at similar rates, in both the pre- and post-reform periods, despite politician’s claims that physicians fled Texas before reform and flocked back thereafter;
(3) although the damage caps adopted in Texas and other states greatly reduced the volume of malpractice litigation and payouts to patients, neither in Texas nor in other states have damage caps moderated the growth of health care spending;
(4) the savings in liability costs generated by the Texas reforms were shared between physicians and their insurers, with the former paying lower premiums and the latter collecting more premium dollars relative to dollars paid out on claims; and
(5) there is evidence that when liability rules are relaxed, hospital safety records gradually deteriorate.
Tuesday, February 5, 2019
Zenon Zabinski & Bernard Black have posted to SSRN The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform. The abstract provides:
We examine whether caps on non-economic damages in medical malpractice cases affect in-hospital patient safety. We use Patient Safety Indicators (PSIs) — measures of adverse events — as proxies for safety. In difference-in-differences (DiD) analyses of five states that adopt caps during 2003-2005, we find that patient safety gradually worsens after cap adoption, relative to control states. Standard DiD inference can be unreliable with a small number of treated units. We therefore develop a randomization inference-based test for DiD statistical inference with few treated units but multiple, potentially correlated outcomes, and confirm statistical strength with this nonparametric approach.
Thursday, January 31, 2019
Dorit Rubinstein Reiss & John Diamond have posted to SSRN Measles and Misrepresentation in Minnesota: Can There be Liability for Anti Vaccine Misinformation that Causes Bodily Harm?. The abstract provides:
Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harms, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts – appropriately – narrowed the tort to protect freedom of speech and the flow of information. This article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of the tort. In 2017, a measles outbreak in Minnesota sickened tens of people, mostly young children of the Somali community in Minneapolis, and hospitalized over twenty young children. The outbreak can be clearly linked to efforts by anti-vaccine groups to target the Somali community and convince its members that the measles, mumps, rubella vaccine (MMR) causes autism – a claim countered by extensive evidence. Using this case, the article examines under what circumstances promoters of misinformation can be held liable for negligent misrepresentation, suggesting a distinction between counseling-like situations and purely public speech, and between types of communications.
Tuesday, January 29, 2019
Yesterday the American Law Institute announced the approval of 3 projects that will conclude the Restatement (Third) of Torts, began back in the 1990s with Products Liability. The three projects are:
Defamation and Privacy; Reporters Lyrissa Lidsky & Robert C. Post
Remedies; Reporter Douglas Laycock
Concluding Provisions; Reporters Nora Freeman Engstrom, Mike Green, and Bill Powers; Associate Reporter Mark Hall
The press release is here: Download Torts-Release-Final
Monday, January 28, 2019
Alex Long has posted to SSRN Abolishing the Suicide Rule. The abstract provides:
Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit recovery in a wrongful death action from a defendant who is alleged to have caused the suicide of the decedent. In many instances, courts apply a strict rule of causation in suicide cases that has actually been dubbed “the suicide rule” in one jurisdiction. While reluctance to assign liability to defendants whose actions are alleged to have resulted in suicide still remains the norm in negligence cases, there has been a slight trend among court decisions away from singling out suicide cases for special treatment and toward an analytical framework that more closely follows traditional tort law principles. This Article argues that this trend is to be encouraged and that it is time for courts to largely abandon the special rules that have developed in suicide cases that treat suicide as a superseding cause of a decedent’s death.
Friday, January 25, 2019