Friday, June 26, 2020
Michael Wells has posted to SSRN Some Objections to Strict Liability for Constitutional Torts. The abstract provides:
Qualified immunity protects officials from damages for constitutional violations, unless they have violated “clearly established” rights. Local governments enjoy no immunity, but may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn of these rules, in order to vindicate constitutional rights and deter violations. This article argues that the costs of these reforms would outweigh the benefits.
Tuesday, June 23, 2020
Thomas Baker, Marc Edelman & John Holden have posted to SSRN College Football in the Time of COVID-19. The abstract provides:
This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.
Monday, June 22, 2020
Aaron Twerski has posted to SSRN An Essay on the Quieting of Products Liability Law. The abstract provides:
For several decades, courts and commentators have disagreed as to whether the standard for liability in product design defect cases should be based on risk-utility tradeoffs or disappointed consumer expectations. Although a strong majority opt for risk-utility a significant minority of courts adopt the consumer expectations test. This Essay contends that as a practical matter in jurisdictions that allow for recovery in design defect cases on a consumer expectations theory, plaintiffs introduce a reasonable alternative design as the predicate for recovery. In fifteen of the seventeen states that allow recovery based on consumer expectations the author could not find a single case in which the plaintiff did not introduce a reasonable alternative design. And in all jurisdictions but one, a defendant is free to introduce risk- utility evidence as relevant to the issue of whether the product disappoints consumer expectations. Thus, whether a reasonable alternative design is required de jure, it is de facto a staple in almost all design defect cases.
Monday, June 15, 2020
Friday, June 12, 2020
Michael Moreland & Jeffrey Pojanowski have posted to SSRN The Moral of Torts. The abstract provides:
Tort theory is an anxious field, trying either to explain the body of tort law through a unified account or surrendering to the view that torts is just an accumulation of ad hoc “policy” judgments without a consistent explanatory basis. In this chapter, we argue that the natural law theory in the Christian tradition breaks through this impasse in tort theory by showing how the basic outlines of tort law are properly derived from principles of morality, while the details within that framework are left open for choice among a wide range of reasonable arrangements. In our view, central aspects of natural law theory such as its account of the relation of law and morality and the manner in which positive law is derived from the natural law explain and justify tort doctrine.
Wednesday, June 10, 2020
Eric Johnson has posted to SSRN Dividing Risks. The abstract provides:
The central question in the law of proximate cause is how to divide risks into parts. The leading test of proximate cause, the foreseeability test, requires the jury to decide whether the “general type” of outcome that occurred was too improbable to be foreseeable. Before the jury can address this question, though, it has to aggregate the possible outcomes of the defendant’s conduct into “general types.” In effect, then, the foreseeability test requires the jury to divide the risk into parts. So does a promising alternative to the foreseeability test, Judge Posner’s increased-risk test. Nobody has developed a workable, determinate method of dividing risks into parts, however. Instead, adherents of both tests have settled for telling juries vaguely to aggregate possible outcomes according to the “sort of mishap” that occurred. As a consequence, both tests are fundamentally indeterminate.
This Article argues that this aggregation difficulty is solvable, though only within the framework of Judge Posner’s increased-risk test. The solution lies in dividing up risks as Darwin divided up life forms – according to “community of descent.” Specifically, outcomes may be situated in relation to one another (1) on the basis of their “descent” from a particular mediating event; and (2) on the basis of their non-descent from a particular extrinsic condition. This method of dividing up the risks isn’t just determinate. When it’s used to frame the increased-risk question – that is, when it’s used to define the aggregate of possible outcomes that must be characterized by increased risk – this method of dividing the risk produces intuitively satisfying answers to a wide range of proximate cause questions.
Tuesday, June 9, 2020
Brian Fitzpatrick has posted to SSRN Can the Class Action Be Made Business Friendly?. The abstract provides:
Formal adoption of a class action mechanism is under consideration in New Zealand. The United States has had a robust class action mechanism since 1966, but it is on the wane. The reason is big businesses have turned against it. In this essay, I explain why the business community dislikes the American class action and make some suggestions on how New Zealand might design its own class action to head off similar opposition.
Monday, June 8, 2020
Michael Moreland has posted to SSRN Preemption as Inverse Negligence Per Se. The abstract provides:
Once the question of whether federal law preempts state tort law has been raised, it does not require that traditional principles of common law adjudication be discarded as well, particularly where the only available substitutes for common law categories are versions of textualist statutory interpretation or freewheeling “purposes and objectives” tests for implied preemption. This article suggests that the missing element in much of the case law and scholarship on preemption of tort claims is attention to the underlying character of the common law tort claims themselves. Such attention has been neglected partly on account of the dominant constitutional and administrative law approaches to preemption, but also on account of the tendency even in tort law to treat products liability as if it were a separate field with its own, quite different set of doctrines. My suggestion in this article is that preemption analysis in the context of state tort claims would benefit, both descriptively and normatively, by invoking the traditional tort doctrine of negligence per se but, in the preemption context, on behalf of defendants — inverse negligence per se.
Wednesday, June 3, 2020
Tuesday, June 2, 2020
Matthew Dyson has posted to SSRN Coherence and Illegal Claims. The abstract provides:
What do we want “coherence” to do in legal reasoning? That is, when we use “coherence”, what are we trying to achieve by its use rather than by using another idea? Lawyers should ask and answer a question like that about many concepts, such as “reasonableness”, “duty”, “foreseeability”, “wrongfulness”, but they have particular importance when seeking to understand how a legal system structures or holds itself together. Often this question is simply not asked, or not asked with any time or context to find a serious answer. Many judges use ‘coherence’ with good reason, but without the resources, particularly time and a setting to investigate. Many academics too call in aid the term to add weight to an argument, without detail. Poorly reasoned coherence risks other key values of a legal system, such as intellectual robustness, fairness and certainty. Coherence requires a full understanding of the institutions, reasoning, norms, substantive rules, procedures and outcomes in the objects connected to each other. This work feeds into a wider project trying to understand how and why legal systems change, particularly drawing on examples across tort law and criminal law.
(1) introduces a recent example of coherence;
(2) shows the objects of coherence reasoning: what is being made coherent with what;
(3) analyses the group of purposes which coherence is part of; and then turns to applying coherence reasoning within the context of claims in tort which are alleged to be incoherent with a criminal prohibition, in particular “sanction shifting” from a person convicted of a crime to a tortfeasor connected to the crime.
Monday, June 1, 2020
Michael Saks & Stephan Landsman have posted to SSRN The Paradoxes of Defensive Medicine. The abstract provides:
For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted by the healthcare industry even though they imply that most providers routinely engage in healthcare fraud and violate their own ethical rules. We review the evidence behind these beliefs — including direct physician surveys, clinical scenario studies, and multivariate analyses of actual case data — and find little support and numerous paradoxes. The validity vel non of the defensive medicine narrative has implications for law and legal policy, as well as healthcare economics and patient safety.
Wednesday, May 27, 2020
Nora Engstrom & Amos Espeland have posted to SSRN Lone Pine Orders: A Critical Examination and Empirical Analysis. The abstract provides:
Invented in 1986 and now a prominent feature of the mass tort landscape, Lone Pine orders require plaintiffs to provide to the court prima facie evidence of injury, exposure, and specific causation — sometimes early, and usually on pain of dismissal. Though they’ve taken root in a hazy space outside of the Federal Rules of Civil Procedure, these case management orders are frequently issued, and they play an important role in the contemporary litigation and resolution of mass torts. But although Lone Pine orders are common, potent, and increasingly controversial, they have mostly fallen under the academic radar. Even their key features are described inconsistently by commentators and courts. This Essay pulls back the curtain. Drawing on a unique hand-coded data set, this Essay describes the origin and evolution of Lone Pine orders, sketches poles of the debate surrounding their use, and offers empirical evidence regarding their entry, content, timing, and effect.
Tuesday, May 26, 2020
Ronen Avraham & Tony Sebok have posted to SSRN An Empirical Investigation of Third Party Consumer Litigant Funding. The abstract provides:
This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States.
Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our funder rejected about half the applications, as well as was cautious about investing too much in a single case, thus preserving the incentives of the client and her lawyer to exert optimal effort. We find that the funder suffered losses in 12% of the cases primarily because of complete defaults. Even in the cases the funder made profit we find a surprising gap between the markup that the funder was supposed to receive from consumers based on the contract between them and the markup the funder actually received. This gap stems both from clients’ defaults as well as from haircuts that the funder gave to the clients.
On the troubling side we find that the funder used controversial techniques to calculate the amount due from the clients. Specifically, the funder used various types of interest compounding, minimum interest periods, interest buckets and fees to add costs to the contract. Accounting for defaults, haircuts, fees, etc., we find that the funder makes about 44% a year on each case. We are also the first to shed light on the role lawyers play in this industry. We find that some law firms are better than others in getting better treatment of their clients both before and after they received funding.
This study provides important concrete and specific data to policymakers and legal scholars interested in litigation finance. While we cannot assess whether the overall welfare effects from funding is positive or negative, we suggest that consumers should be better protected by reducing the opacity and complexity of the funding contracts as well as by requiring lawyers to do more to protect their clients who seek third party funding.
Monday, May 25, 2020
Richard Wright has translated Karl Engisch on causation into English. The abstract provides:
This work by Karl Engisch was, as far as I am aware, the first to reject the traditional but-for / sine-qua-non test as the exclusive test of factual causation, or even as a proper test when employed, as usually assumed, through hypothetical analysis of what might otherwise have occurred rather than real world analysis of what actually occurred. Engisch demonstrated the defects of the but-for / sine-qua-non test in duplicative and preemptive overdetermined causation situations and the proper employment, instead, of a "covering law" analysis, according to which actual facts are tested for their causal status in singular instances through subsumption under the laws of nature to reach the correct answers. This work is a landmark in the German legal literature and likely had a significant impact on Hart and Honoré's later landmark book, Causation in the Law. Honoré, at least, likely read all of it. This is a translation only of Part II, The Condition Theory. The translation was initially done using Google Translate, which works quite well as an initial translation if one eliminates the carriage returns at the end of each few words in the box containing the text to be translated, but the resulting text sometimes needed to be revised based on personal knowledge. I welcome advice regarding any significant errors in translation.
Friday, May 22, 2020
Henry Smith is the Reporter for the Restatement (Fourth) of Property; he is joined by John Goldberg as an Associate Reporter in charge of the property torts. This 30-minute video covers basics of Tentative Draft No. 1, which would have been before the members at the ALI's Annual Meeting this month. John addresses trespass to land and additional trespass provisions the project intends to cover.
Thursday, May 21, 2020
Thursday, May 14, 2020
Wednesday, May 13, 2020
Cathy Sharkey has posted to SSRN The Opioid Litigation: The FDA is MIA. The abstract provides:
Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have weighed in on the preemption defense in the opioid cases before them; instead, it is to highlight the appropriate inquiry in which the courts should engage. Namely courts should scrutinize the regulatory actions taken by the FDA and evaluate the extent to which state tort law actions fall within or outside of the bounds of the risk analysis already undertaken by the FDA. Such an analysis would put pressure on the FDA to weigh in — either on its own or as invited by the courts — on the balance between its regulatory actions and the need for state tort law causes of action. The courts would then scrutinize input from the agency under “hard look” review. No longer could the FDA remain on the sidelines, as it has to date, amidst a public health crisis that is now playing out in the courts.
Friday, May 8, 2020
Steve Hedley has posted to SSRN Tort: The Long Good-Bye. The abstract provides:
Throughout history, tort – civil liability for wrongdoing – has been a prominent feature of many legal systems. By compelling wrongdoers to compensate their victims, two immediate social needs are satisfied (wrongdoers are penalised, their victims supported), as are other goals (public order is upheld, justice is seen to be done). Yet in modern circumstances tort is less useful. Discouraging harmful behaviour is a fundamentally different project from supporting the sick and penniless. The main advantage of tort liability – that it contributes to a variety of essential policy aims – now makes it look muddled, or even an obstacle to progress. Tort is therefore bent out of shape in separating these aims. Yet we cannot finally say farewell to tort until all of its vital functions are replaced with better provision, which requires both political will and a fair degree of optimism – both currently rare commodities.
Thursday, May 7, 2020