TortsProf Blog

Gifford, Boldt & Robinette on Originalism in Tort Law

Don Gifford, Richard Boldt, and I have posted to SSRN When Originalism Failed:  Lessons from Tort Law.  The abstract provides:

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first is practical: the historical meaning and intended application of constitutional provisions often are elusive. In some instances, courts simply commit outright errors in constructing the historical narratives on which the decisions rest. In other cases, the use of thick originalism requires judges to exercise wide discretion to determine where to begin a historical inquiry and which sources to consult. This wide discretion, and the related problem of judicial bias associated with highly discretionary interpretive practices, are the very problems originalism is said to solve. The use of thick originalism may create the appearance of objectivity, but in fact considerable subjectivity of judgment is simply buried in the construction of the histories governing the out-come in these cases. The second problem associated with the use of thick originalism is normative. The use of a rigid form of originalism to define the contours of constitutional rights interrupts the ordinary operation of the common law and imposes on today’s society the values of the dominant white, male, and propertied power structure existing at the time of the adoptions of the Constitution and the Fourteenth Amendment. Society today is different than in the largely agrarian communities that composed the United States at the Founding. Solutions to Founding-era problems do not necessarily translate to the modern United States.

Baker on Litigation Funding and Settlement Rights

Tom Baker has posted to SSRN What Litigation Funders Can Learn About Settlement Rights From the Law of Liability Insurance.  The abstract provides:

This essay describes a landmark dispute between Burford and Sysco over the enforcement of a settlement veto provision in their litigation financing agreement. The essay compares that veto right to settlement rights routinely exercised by liability insurers, who are the original commercial third-party litigation funders. The essay concludes that sophisticated commercial plaintiffs should have authority to assign similar rights to plaintiff-side litigation funders and the funders should be able enforce those rights through injunction. Courts routinely enforce defense-side funders’ right to require defendants to continue litigating even when both the defendant and the plaintiff would prefer to settle, indicating that neither the public policy in favor of settlement nor party control over litigation prohibit the exercise of that right. Over 100 years of experience demonstrates that assigning such rights on the defense side need not conflict with professional responsibility rules, and no one has identified a compelling reason to believe that conflicts will be more challenging for lawyers and courts to manage when sophisticated commercial entities contract with plaintiff side funders. Finally, courts regularly use preliminary injunctions and specific enforcement to preserve the value of defense-side litigation funding, demonstrating that such remedies are not unusual in the litigation funding context. The essay concludes by discussing why similar disputes have not arisen in the past and why, despite the logic of the position taken in this essay, plaintiff side litigation funders are unlikely to push for the full extent of control that liability insurers exercise on the defense side.

Mullenix: Public Nuisance: The New Mass Tort Frontier

Linda Mullenix has published Public Nuisance:  The New Mass Tort Frontier with Cambridge University Press.  The blurb provides:

In Public Nuisance, Linda Mullenix describes the landscape of 21st century mass tort litigation involving public harms – including lead paint, opioids, firearms, e-cigarettes, climate change, and environmental pollution – and the novel theory of public nuisance that lawyers and local governments have used to receive compensation from those who have created public nuisances. The book surveys conflicting judicial decisions rooted in common law and statutory interpretation and evaluates the competing arguments for and against the expansion of public nuisance law. Mullenix argues that that the development of public nuisance theory is part of the historical arc of mass tort litigation and suggests a middle approach to new public nuisance law, namely that we should embrace the common law and legislated public nuisance statutes.

Nolan: Questions of Liability

Donal Nolan has published Questions of Liability with Bloomsbury.  The blurb provides:

In this collection, one of the key commentators on the modern law of tort presents 12 of his most important articles and book chapters. These are accompanied by an introductory chapter in which the author comments on the impact and reception of the pieces that make up the collection, and by a provocative new essay in which he argues against strict product liability in the law of tort. A coherent and compelling exploration of topical issues in core areas of tort law, the collection is divided into 3 parts, dealing with negligence; nuisance and Rylands v Fletcher; and tort in general. The essays in this collection are a significant contribution to debates about the limits and scope of tortious liability in common law systems. Students, scholars and practitioners alike will find it an invaluable resource for understanding tort law in the early 21st century.

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Order online at www.bloomsbury.com  – use the code GLR AQ7 to get 20% off!

JOTWELL Torts: Goldberg on Volokh on Defamation by AI

At JOTWELL, John  Goldberg reviews Eugene Volokh's Large Libel Models?  Liability for AI Output.

Two by Mullenix

Linda Mullenix has posted two pieces to SSRN.  First, Reflections on the Flying Buttresses of Class Action Settlement.  The abstract provides:

Since the advent of the modern class action rule in 1996, class actions have long settled. Yet for more than five decades, class action settlements remained a backwater of class action jurisprudence. This changed in the 1990s, when issues relating to settlement classes dominated the federal legal landscape. The Supreme Court effectively resolved the controversy over settlement classes in its landmark decisions in Amchem Prods. Inc. v. Winsor and Ortiz v. Fibreboard Prods. at the end of the twentieth century.

The Court’s imprimatur on settlement classes opened an era of expansive use of settlement classes, which was accompanied by proliferating problems relating to the substantive and procedural fairness of settlement agreements. These problems garnered the attention of the practicing bar, the federal judiciary, and the rulemakers. In 2003 and 2018, the Advisory Committee on Civil Rules enacted sweeping changes to Rule 23(e) governing judicial approval of class action settlements.

This article argues that the twenty-first century amendments to Rule 23(e) encouraged the creation of an entire cottage industry of external expert witness support to shore up the settling parties’ burden of proof at Rule 23(e) fairness hearings. Although parties employed various such expert sin the 1990s, the rule amendments accelerated the routine use of these experts in the twenty-first century, as well as judicial acceptance and embrace of this testimony.

The article canvasses six types of party-retained expert testimony in support of class certification and settlement approval: (1) the notice vendor, (2) the fee expert, (3) the class certification expert, (4) the settlement fairness expert, (5) the ethics expert, and (6) the neutral mediator. The article focuses on the peculiar development of recourse to mediators in support of final settlement approval.

The article evaluates the value added and benefits to the judicial system of the deployment of these external experts, contrasted with the problems endemic to their use. The article concludes with thoughts on addressing the challenges presented by external expert testimony with recommendations for improvements to the status quo of routine judicial deference to party-retained external support.

Second, Class Action Waivers in Arbitration Agreements:  The Twenty-First Century Arbitration Battleground and Implications for the EU Countries.  The abstract provides:

Without doubt the U.S. Supreme Court in the twenty-first century has been obsessed with the problem of corporate attorneys’ inclusion of class action waivers in arbitration agreements. This article traces the emergence of the class action waiver issue, which developed in tandem with the plaintiffs’ embrace and proliferation of class action litigation at the end of the twentieth century. The discussion comments on plaintiffs’ initial attempts to request and secure class arbitration where the arbitration clauses were silent, culminating in Supreme Court’s opinion permitting arbitrators to determine this issue. With the Court’s opening the door to possible classwide arbitration, corporate lawyers regrouped to rethink the wording of their mandatory arbitration agreements, to specifically prohibit classwide arbitration. These corporate efforts and the successive redrafting of arbitration agreements prompted a series of class action waiver appeals to the Supreme Court, with the Court construing ever changing class action waiver formulations. Since 2010, the Court has decided eight class action appeals dealing with issues relating to class action waivers in arbitration agreements. The article analyzes the Court’s series of decisions relating to class action waiver provisions, focusing on the Court’s consistent repudiation of classwide arbitration as antithetical to the original concept of bilateral arbitration. The article observes that despite the Court’s clear rejection of almost all class action waiver provisions, plaintiffs’ attorneys regroup and repeatedly seek classwide arbitration by state legislative initiatives and construing arbitration agreements within the contours of the Court’s evolving class waiver jurisprudence. The article concludes with observations about class arbitration in other countries, and the implications of class action waivers for European Union countries that have recently implemented class action and collective redress procedures.

Kysar on the Constitutional Claim to Individuation in Tort

Douglas Kysar has posted to SSRN The Consitutional Claim to Individuation in Tort--A Tale of Two Centuries, Part 2.  The abstract provides:

This article—drafted to honor Professor Aaron Twerski on the occasion of his festschrift at Brooklyn Law School—draws inspiration from his classic 1989 article on market share liability. In that article, Professor Twerski observed that doctrinal confusions in market share liability arose from judges who “had their feet firmly planted in two different centuries—one foot in the nineteenth century and the other in the twenty-first century.” This article takes inspiration from Twerski’s “two centuries” metaphor to examine the rise of constitutional objections by defendants to certain doctrinal innovations that attempt to adapt tort law to modern ways of causing, identifying, and redressing harm. Many of these objections can be understood as claims that defendants are constitutionally entitled to a body of tort law that remains anchored in the nineteenth century, notwithstanding some judges’ desire to drag tort into a more modern, regulatory modus operandi. For reasons stemming from tort law’s distinctive role in our classical liberal system of government, the article argues that courts should decline defendants’ invitation to lock tort law in anachronistic amber.

Hylton & Kim on Regression Analysis

Keith Hylton & Sanghoon Kim have posted to SSRN Trial Selection and Estimating Damages Equations.  The abstract provides:

Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.

Kysar on the Duty of Climate Care

Douglas Kysar has posted to SSRN The Duty of Climate Care.  The abstract provides:

A motivational saying popular within the climate advocacy movement advises, “It’s never too late to do your best.” With respect to climate change, political representatives instead seem to have followed the adage, “It’s always too soon to care.” Is it any wonder, then, that advocates have turned to the courts in pursuit of meaningful declarations of climate responsibility?

Across the world, litigants in numerous jurisdictions have filed actions against both public and private defendants, seeking to instantiate a duty of climate care. They have invoked constitutional and human rights claims, but also tort law to ground this duty. Indeed, some advocates have explicitly called for the creation of a new tort, seeking to invoke the centuries-long power of common law judges to fashion duties to address changing social circumstances. Never mind that the circumstances at issue involve the largest and most challenging collective action problem ever to face humanity. With the political branches failing their most basic obligation to preserve the ecological foundation of social order, courts are being called upon to fashion a jurisprudence of climate care.

This paper explores conceptual issues raised by a duty of climate care. Regardless of how a climate responsibility cause of action is framed, courts must confront the difficult question of why the defendants named in any given action should be singled out for judicial scrutiny from among the many billions of present and past human emitters. That question in turn raises issues regarding the institutional authority and competence of courts. Neither concern is insurmountable as a doctrinal and practical matter. But along the road to ultimate resolution of a climate accountability case, courts face numerous tempting exit opportunities. Will judges agree that it’s never too late to try their best?

Shmueli on Tort Cases between Close Relations

Ben Shmueli has posted to SSRN Relational Torts:  Tort Litigation in Cases of Close Relations.  The abstract provides:

To what extent do personal relationships, such as between family members, neighbors, or trusted business partners matter in ascertaining how to address tort claims? This Article brings policy considerations into present rationales for a new and comprehensive doctrine of relational torts and lays the foundations for practical application of this doctrine.

This Article discusses several main issues. The first is whether it is appropriate to treat torts involving those within a close relationship differently from torts between strangers? The Article posits that in such close relationships, a true restoration of the relationship requires emotional remedies, such as an apology and expression of remorse. This may challenge the traditional view that the main purpose of tort law is to restore the status quo ante, typically by means of monetary compensation. The proposal shifts the focus toward appeasement and rehabilitation, aims that have been considered secondary (compared to corrective justice or deterrence) and considers both efficiency and the public interest in preserving close personal relationships as a value and an asset. The second issue is how to adapt tort law to address tort disputes within close relationships. For example, will it be sufficient simply to tweak existing tort law, or will it be necessary to create entirely new law?

The Article offers suggestions how the remedial implications of relational torts should concentrate on restoration of relationships and not necessarily backwards-looking reparation or compensation for harm. Part of the solution should employ emotional remedies in lieu of some part of monetary damages in appropriate cases, examining how to make it compatible also with the will to be efficient and prevent over-deterrence. Finally, the Article discusses the types of close relationships that should be covered under any such new tort law. Speaking both positively and normatively, some aspects of the desirable model are found in today’s legislation and case law in various countries. However, there is no systematic and coherent theory, or at least any organized arrangements, for the doctrine. The analysis draws on an extensive-but-cautious comparison with relational contracts doctrine.

Geistfeld on Bystanders in Strict Products Liability

Mark Geistfeld has posted to SSRN Situating Bystanders within Strict Products Liability.  The abstract provides:

The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability.

Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of strict products liability are designed to protect consumer expectations, recovery is barred when consumers make informed risk-utility choices concerning a product attribute and consequently do not have frustrated expectations about how the product will perform in this regard. The resultant consumerist version of the assumed-risk rule bars recovery for bystanders who do not voluntarily consent to the risk exposure. This limitation of liability is problematic only when the product choice pits the interests of consumers against bystanders, with consumers protecting themselves by selecting products that shift the risk of injury onto bystanders. In cases involving these types of risk-risk tradeoffs, the consumerist orientation of strict products liability is incapable of addressing a bystander’s claim that consumers should not be given the choice in question. According to critics, this inherent limitation of the consumer expectations test merits the wholesale rejection of strict products liability. However, strict products liability complements and does not displace the default rule of negligence liability, which provides the normatively appropriate rule for adjudicating these bystander claims. By clearly demarcating the role of consumer-choice doctrines, bystander injuries help to establish the important boundary between strict products liability and negligence liability.

By contrast, the negligence-based framework of the Restatement (Third) of Torts: Products Liability erases the differences between consumers and bystanders, yielding a normatively confused liability inquiry that erroneously specifies the conditions under which consumer-choice doctrines should limit liability. Rather than providing a reason to reject the consumer expectations test, bystander injuries help show why the consumerist orientation of strict products liability makes it a normatively distinct body of tort law that the Third Restatement mistakenly lumps together with ordinary negligence liability.

Beswick on Liability of Judges for Wrongful Imprisonment

Over at New Private Law Blog, Sam Beswick covers "The Liability of Judges for Wrongful Imprisonment."  The lede:

Last month, the United States Sixth Circuit Court of Appeals and the Federal Court of Australia each gave judgments on lawsuits against sitting judges for abusing their contempt-of-court power. The US case arose after an Ohio Municipal Court Judge sentenced a spectator in his courtroom gallery to 10 days’ jail for refusing the judge’s unprompted demand that she take a drug test. She spent one night in prison during which she was subjected to pregnancy tests and full-body CAT scans. The Australian case concerned a Family Court judge in Queensland who began a hearing by accusing a self-represented litigant of not complying with disclosure orders, sentencing him to 12 months’ imprisonment in what the Federal Court characterized as “a gross parody of a court hearing” (¶129). The man spent a harrowing seven days in prison and became suicidal.

In both cases, the judges’ contempt orders were appealed and declared invalid. The Ohio Court of Appeals considered that the municipal judge had abused his discretion and violated the courtroom spectator’s due process rights. The Full Court of the Family Court of Australia described the Family Court judge’s hearing as “devoid of procedural fairness” and his order “an affront to justice” (¶9). The individuals in both cases sued the judges for their wrongful imprisonment. Their suits raised two issues: (1) whether the judges’ actions amounted to a violation of a right for which the plaintiffs had legal recourse; and (2) whether the judges’ judicial office immunized them from liability to the plaintiffs. The Sixth Circuit considered only issue (2) and dismissed the case before it as barred by the doctrine of absolute judicial immunity. The case before the Australian Federal Court, by contrast, succeeded: judicial immunity was rejected and the judge was held personally liable to pay damages for the tort of false imprisonment.

In my view, these two cases illustrate a divergence in principle underscoring the liability of public officers generally to civil suit. I explore this idea in a forthcoming article examining claims against police and prison officers: whereas immunity principles drive the adjudication of such suits in the United States, the principle of equality under ordinary law is the jurisprudential starting point in countries such as Canada, Australia and the United Kingdom.

JOTWELL Torts: Avraham on Gilboa, Kaplan & Sarel on Climate Change as Unjust Enrichment

At JOTWELL, Ronen Avraham reviews Maytal Gilboa, Yotam Kaplan & Roee Sarel's Climate Change as Unjust Enrichment.

Miller: Is Private Law Normatively Distinctive?

Paul Miller has posted to SSRN Is Private Law Normatively Distinctive?.  The abstract provides:

This chapter was prepared for a volume paying tribute to the life and work of the late Stephen A. Smith. It examines an essay by Smith – ‘The Normativity of Private Law’ – that elaborates his methodological convictions. In the essay, Smith argues that leading American scholarship – blinkered by legal nihilism, nominalism, and narrow behaviourism – fundamentally misunderstands private law by failing to consider that private law is what it appears to be: a normative system that presents itself as morally authoritative. In this chapter, I canvass Smith’s arguments and conclude that he is persuasive: one cannot understand private law without recognizing and engaging with its normativity. But I also explore what Smith’s essay has to teach about a persistent bugbear for private law theory: the question whether there is anything genuinely distinctive about what is conventionally denominated “private law.” I argue that one can find within Smith’s work resources for a productive reframing of the narrower question whether private law is normatively distinctive. The reframing allows for nuance missing in sweeping assertions of normative distinctiveness for private law found in older work of private law theory while, at the same time, making the question more tractable and interesting.

Lidsky on Defamation Reform

Lyrissa Barnett Lidsky has posted to SSRN Cheap Speech and the Gordian Knot of Defamation Reform.  The abstract provides:

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977. Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The 24-hour news cycle was not yet a thing, and most Americans still trusted the press.

Zipursky & Goldberg's New Works, Part II

Continuing a post from Friday, Ben Zipursky and John Goldberg have posted several new works to SSRN.  Fourth, A Tort for the Digital Age:  False Light Invasion of Privacy Reconsidered.  The abstract provides:

In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability.

Drawing from case law and an important but underappreciated body of prior scholarship, this article elucidates the distinctive content and role of false light as an authentic invasion-of- privacy tort and explains why its recognition is especially important in our digital world. To appreciate its value requires, first and foremost, grasping that its closest tort sibling is not defamation, but instead public disclosure. Like that tort and unlike defamation, false light applies only to a subset of subject matters – those that are genuinely private and are not newsworthy – and only when highly offensive images or messages pertaining to the plaintiff are widely disseminated to the public. In short, as Melville Nimmer once noted, the sound judgment undergirding false light is this: if causing humiliation or grave offense by disseminating accurate depictions or accounts of private matters is actionable, it should be no less actionable when the putative representations are false. In an era of deepfakes and other privacy-invading misrepresentations, courts should embrace the tort of false light.

Fifth, Trying and Succeeding.  The abstract provides:

In “Duties to Try and Duties to Succeed,” Stephen Smith distinguishes two types of duties one might find in areas of private law such as contracts and torts: (1) duties to succeed (such as a duty not to trespass on another’s land), and (2) duties to try (such as a duty to try not to injure another through careless conduct). Smith argues that these types of duty differ not only in their structure, but in the standards of conduct they support (strict liability versus fault), the nature of the wrongdoing involved when those standards are breached (setbacks to rights or interests versus displays of disrespect), and the kind of liability they generate (damages that involve the duty-bearer doing the next best thing to heeding her duty to succeed versus damages that restore formal equality given the disrespect that is displayed by the breach of a duty to try). Finally, he concludes that, because Anglo-American private law grew haphazardly out of the writ system, it contains both types of duties yet lacks a coherent account of which duties apply or should apply to which conduct and which injuries.

Building on Smith’s highly illuminating treatment while also pushing back against his somewhat skeptical conclusion, our contribution to this volume will argue that there is a way for private law to combine aspects of duties to try and duties to succeed into what we call “qualified duties of noninjury.” In developing this claim, we re-examine Brown v. Kendall, 60 Mass. 292 (1850), a crucial decision that helped mark U.S. private law’s move away from the writ system by recognizing and defining the modern tort of negligence. Close attention to Chief Justice Shaw’s reasoning in Brown, we argue, will show that, at the center of negligence law, and indeed all of tort law, are qualified duties of noninjury, i.e., duties that have both a conduct element and an injury element.

Zipursky & Goldberg's New Works, Part I

Ben Zipursky & John Goldberg have posted several new pieces to SSRN.  First, Recklessness in Tort:  Interstitial Law as Doctrinal Fine-Tuning.  The abstract provides:

“Intentional torts,” “Negligence,” and “Strict Liability” are typically cast as the major categories of tort liability. Conspicuously absent from this list is “Recklessness,” which would seem to fit between intentionality and negligence and is treated in criminal law as a category of its own. And yet recklessness does make sporadic appearances in tort law. Because it lies between categories without constituting a distinct category, recklessness thus can fairly be described as operating “interstitially” within tort law.

As we explain, recklessness fulfills this role in two quite different ways. In the law of defamation and fraud, it sets the lower boundary of ‘malice,’ understood as mistreatment of another involving dishonesty or other states of mind inconsistent with good faith. A quite different collection of tort settings in which recklessness plays an important role – one that includes the application of assumption of risk to recreational activities – are those in which courts are prepared to relieve actors of liability notwithstanding that their actions generate a significant risk of harm. In this domain, recklessness marks an upper rather than a lower boundary, namely, the point at which conduct becomes so unjustifiably dangerous that liability will attach. We conclude by suggesting that attention to the different ways in which recklessness serves as a fine-tuning mechanism in tort law may illuminate philosophical debates about the nature of recklessness, as well as jurisprudential inquiries concerning interstitial legal concepts.

Second, Sherman v. Department of Public Safety:  Institutional Responsibility for Sexual Assault.  The abstract provides:

This article addresses the intersection of three important topics: sexual assault, police misconduct, and employer liability for employee torts. As to the last of these, while there have long been debates among jurists in the U.S. concerning the proper scope of respondeat superior liability, courts have mostly adhered to an approach that focuses on whether the employee acted for the purpose of serving the employer’s interests. The narrowness of this purpose-based test, as compared to available alternatives, makes it imperative for lawyers, judges, and scholars to be attentive to other, less well-known, bases for employer liability. In Sherman v Department of Public Safety, the Delaware Supreme Court applied a particular version of one such doctrine – the “aided-by-agency” doctrine – to hold a police department accountable for its officer’s sexual assault of an arrestee. By articulating this doctrine in a thoughtful and circumscribed manner, the Court affirmed its reputation as a leader in the development of agency law, while also providing a helpful framework that can be applied to hold certain employers liable when employees take advantage of their employment-based authority over their victims to perpetrate assaults.

Third, Getting the Law Right:  An Essay in Honor of Aaron Twerski.  The abstract provides:

Written in honor of the great torts scholar Aaron Twerski, this article critically analyzes disturbing developments in New York negligence law as it applies to police who injure innocent bystanders. With the New York Court of Appeals’ 2022 decision in Ferreira v. City of Binghamton as a focal point, it argues that Ferreira and other contemporary decisions have largely betrayed the promise of the 1929 Court of Claims Act, which waived state and municipal immunity for police torts. While courts may be warranted in recognizing certain limits on police negligence liability that do not apply to private actors, the current regime, which purports to grant municipalities immunity not only for most instances of police nonfeasance but also for most instances of misfeasance, is indefensible. That decisions from New York’s high court have reached this untenable position largely reflects, in our view, both its misapplication of basic rules of negligence law and a failure to take seriously the principle of civil recourse that animates tort law and private law more generally. As such, they serve as a stark reminder of how important it is for courts and scholars to combine doctrinal expertise with sound judgment – precisely the salutary combination embodied in Professor Twerski’s torts scholarship.

Abraham & Sharkey on Insurance and Tort Theory

Ken Abraham & Cathy Sharkey have posted to SSRN The Glaring Gap in Tort Theory.  The abstract provides:

The glaring gap in tort theory is its failure to take adequate account of liability insurance. Most of tort theory fails to recognize the central role that liability insurance plays in tort law and litigation, or mentions liability insurance only briefly, treating it as exogenous to tort law itself, as if it were merely a contingent source of outside financing, like a bank that passively guarantees a loan, rather than recognizing its active and central role. It is no exaggeration to say that liability insurance played a defining role in creating modern tort liability, and that modern tort liability would not look like at all like it looks today if liability insurance had not existed and influenced tort law’s development in the ways that it did.

This Article calls upon tort scholars of all theoretical and methodological stripes to take into account the significance of liability insurance. We first lay the groundwork by describing the role that liability insurance plays in the life cycle of a tort claim, sketching the contemporary incidence of liability insurance and commercial self-insurance. We then provide a new and extensive sample of significant judicial opinions that have made express reference to the availability (or unavailability) of liability insurance in precedent-setting, liability-expanding and liability-limiting tort cases. We further identify the ways that liability insurance historically has influenced, and continues to influence, the shape and scope of tort law, singling out important tort law doctrines that would never have existed at all in the absence of liability insurance. We argue that it is liability insurers who—paradoxically—have fueled the continuing expansion of American tort liability that began over a century ago.

We then explain how to begin filling the gap in tort theory that results from omitting consideration of liability insurance, showing how liability insurance can appropriately figure in both deontic and consequentialist theories of tort liability. Only by greater recognition and candid acknowledgment of the role played by liability insurance in tort law can tort theory provide an accurate picture of the field that it purports to describe.

Finally, we offer lessons for the courts, calling not only for more open acknowledgment of the significance of liability insurance in judicial opinions, but also for a radical change by proposing that judges explicitly consider record evidence on the availability of insurance against the form of tort liability at issue in tort cases.

Engstrom & Rabin on the Wrongdoer Plaintiff

Nora Freeman Engstrom & Bob Rabin have posted to SSRN Felons, Outlaws, and Tort's Troubling Treatment of the 'Wrongdoer' Plaintiff.  The abstract provides:

Two tort law tenets are broadly accepted. First, litigants are to be judged based on their conduct, not on their character. In tort law, if not in heaven, the sinner is entitled to the same treatment as the saint. Second, it’s also broadly understood that, as comparative negligence supplanted contributory fault in the latter years of the last century, compensation stopped being binary; recovery became proportional. When, as is very often the case, the plaintiff and the defendant both err, the plaintiff’s entitlement to compensation is a matter of more or less, not yes or no.

Against that backdrop, this Essay identifies four doctrines—the wrongful conduct rule, the “innocence” prerequisite to legal malpractice actions, the non-innocent party doctrine, and the complicity defense—that implicitly challenge both of these bedrock principles. We show how these “wrongdoer doctrines” extinguish claims, not just because of what the plaintiff has done but, rather, who the plaintiff is. And we also explore the doctrines’ other infirmities. Namely, these doctrines subvert the basic goals of tort law, authorize character assassination, defy consistent or principled application, rest on a false premise, and operate to resurrect a stealth version of contributory fault. Finally, this Essay, written for a symposium celebrating the great tort cases of the twenty-first century, highlights a recent opinion out of West Virginia that unmasked one such doctrine and appropriately relegated it to the dustbin of history.

JOTWELL Torts: Keating on Blankfein-Tabachnick & Kordana on Private Law Theory

At JOTWELL, Greg Keating reviews David Blankfein-Tabachnick & Kevin Kordana's On Rawlsian Contractualism and the Private Law.