TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, December 14, 2018

JOTWELL Torts: Goldberg on Engstrom on Auto Accidents

At JOTWELL, John Goldberg reviews Nora Engstrom's When Cars Crash:  The Automobile's Tort Legacy.

December 14, 2018 in Scholarship, Weblogs | Permalink | Comments (0)

Thursday, December 13, 2018

Shavell on Expanding Strict Liability for Abnormally Dangerous Activities

Steven Shavell has posted to SSRN The Mistaken Restriction of Strict Liability to Uncommon Activities.  The abstract provides:

Courts generally insist that two criteria be met before imposing strict liability. The first--that the injurer’s activity must be dangerous -- is sensible because strict liability possesses general advantages in controlling risk. But the second -- that the activity must be uncommon -- is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities -- from hunting, to construction, to the transmission of natural gas -- is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.

December 13, 2018 in Scholarship | Permalink | Comments (0)

Friday, December 7, 2018

Wright on Allocating Liability among Multiple Legally Responsible Causes

Richard Wright has posted to SSRN Allocating Liability Among Multiple Responsible Causes:  Principles, Rhetoric and Power.  The abstract provides:

In Part II of this paper, I discuss the principles underlying just allocation of liability among the multiple responsible causes of an indivisible injury. I argue that those principles support either (1) the standard method adopted by almost all courts, according to which the plaintiff's claim for compensation is reduced by her percentage of comparative responsibility if she was contributorily negligent, those who wrongfully contributed to the plaintiff's injury are each held fully (solidarily) liable for the plaintiff's possibly reduced claim, and the wrongdoers who pay the plaintiff are able to maintain contribution actions against the other wrongdoers based on their comparative responsibility, or (2) a modification of the standard method which would allow the wrongdoers who pay the plaintiff to have a contributorily negligent plaintiff share in bearing the portion of damages that are uncollectible from other wrongdoers. The various proportionate liability rules adopted by the legislatures in many states (but not the federal government) in the United States and (for injuries other than to the plaintiff's person) by all the Australian states are neither justifiable nor fair.

In Part III, I explain and criticize the rhetorical arguments used by the defense advocates to attempt to convince judges (unsuccessfully) and legislators (successfully) that replacing solidary liability with proportionate liability is necessary to be consistent with the common law and allocation of liability consistent with each person's individual responsibility.

In Part IV, I describe (1) the primary role played by recurrent cycles of "soft" and "hard" liability insurance markets, made possible by lack of proper regulation of the insurance industry, in creating recurrent liability insurance crises, (2) the successful effort of the insurance industry and other defense interests to portray tort liability rather than the flaws in the liability insurance market as the cause of the recurrent liability insurance crises in order to promote "tort reform" while avoiding needed regulation of the insurance industry, and (3) the recurrent failure of the enacted "tort reforms" to provide the promised reduction or moderation in liability insurance premiums.

December 7, 2018 in Scholarship | Permalink | Comments (0)

Friday, November 30, 2018

Corporate Crime Reporter Reviews Sheley on Vicarious Liability

CCR has an interesting piece on Erin Sheley's Tort Answers to the Problem of Criminal Mens Rea, including an interview with the author.  The abstract to the article provides:

The respondeat superior (vicarious liability) standard by which courts hold corporations liable for the crimes of their employees has been widely criticized as being overly inclusive insofar as it punishes fault-less entities. Less acknowledged is that, due to its requirement that the employee have intended in part to benefit the corporation, the standard is also under inclusive in cases of sexual violence facilitated by a corporate entity. This article argues that, to solve these problems within the criminal law, we should learn from their parallel development in the sphere of tort law, from which respondeat superior was derived in the first place. No comprehensive effort has yet been made to examine how courts have, in tort respondeat superior, addressed the problems of over- and under-inclusiveness that emerge in that realm. In light of the lessons revealed in the tort case law, I argue that criminal respondeat superior should apply only where the government can show 1.) an omission by the corporation to take reasonable steps to prevent a crime; 2.) that the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise and 3.) that such a crime occurred, regardless of whether or not any individual employee had the intent to benefit the corporation.

November 30, 2018 in Scholarship | Permalink | Comments (0)

Wednesday, November 21, 2018

Martinez Alles on Tort Remedies

Maria Guadalupe Martinez Alles has posted to SSRN Tort Remedies as Meaningful Responses to Wrongdoing.  The abstract provides:

Tort theorists’ unceasing efforts to draw a clear-cut line between tort law (i.e., private law) and criminal law (i.e., public law) has cabined the understanding of tort remedies as private responses to wrongdoing which are predominantly compensatory. The practice of awarding additional damages contradicts this view. It indicates that in fact tort remedies represent substantive responses to wrongdoing that may involve private and public aspects which may or may not be compensatory. An example of this mismatch between practice and theory is observable in the dialogue between court decisions and scholars where it is openly acknowledged that the practice of awarding damages in tort cases actually represents punitive motives that judges camouflage under classic compensatory labels and the correlative reaction by tort theorists who counter with arguments for a reduction-to-compensation approach to those punitive elements. Against this backdrop, I argue in this article that, in order to properly channel tort victims’ substantive responses to wrongdoing, the time is ripe for revising the classic private understanding of tort remedies to take into account not only the central role of holistic considerations of the circumstances of the wrongdoing and the significance and meaning that the wrongdoing holds for the private parties in tort cases, but also the advantages of providing victims with a legitimate avenue for voicing the private and public values affected by the particular instances of wrongdoing.

November 21, 2018 in Scholarship | Permalink | Comments (0)

Friday, November 16, 2018

JOTWELL Torts: Avraham on Ben-Shahar on "Data Pollution"

At JOTWELL, Ronen Avraham reviews Omri Ben-Shahar's Data Pollution.

November 16, 2018 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, November 14, 2018

Choi on "Crashworthy Code"

Bryan Choi has posted to SSRN Crashworthy Code.  The abstract provides:

Code crashes. Yet for decades, software failures have escaped scrutiny for tort liability. Those halcyon days are numbered: self-driving cars, delivery drones, networked medical devices, and other cyber-physical systems have rekindled interest in understanding how tort law will apply when software errors lead to loss of life or limb.

Even after all this time, however, no consensus has emerged. Many feel strongly that victims should not bear financial responsibility for decisions that are entirely automated, while others fear that cyber-physical manufacturers must be shielded from crushing legal costs if we want such companies to exist at all. Some insist the existing liability regime needs no modernist cure, and that the answer for all new technologies is patience.

This Article observes that no consensus is imminent as long as liability is pegged to a standard of “crashproof” code. The added prospect of cyber-physical injury has not changed the underlying complexities of software development. Imposing damages based on failure to prevent code crashes will not improve software quality, but impede the rollout of cyber-physical systems.

This Article offers two lessons from the “crashworthy” doctrine, which was pioneered in the late 1960s in response to a rising epidemic of automobile accidents, and which helped push rapid improvements in crumple zones, seat belts, and other critical safety features. The first is that tort liability can be metered on the basis of mitigation, not just prevention. When code crashes are statistically inevitable, cyber-physical manufacturers may be held to have a duty to provide for safer code crashes, rather than no code crashes at all. Second, a shift to crashworthiness allows both engineers and lawmakers to focus heightened scrutiny on a narrower subset of code, i.e., only those modules necessary to handle fault tolerance. Requiring all code to be perfect is impossible, but demanding some code to be closer to perfect is feasible.

Crashworthy code solves the paralysis of the crashproof mindset, by reframing the software liability problem in terms that engineers can readily undertake.

November 14, 2018 in Scholarship | Permalink | Comments (0)

Sunday, November 11, 2018

2018 Torts Section Newsletter

Scott Hershovitz has released the 2018 AALS Torts Section newsletter:   Download AALS Tort Section Newsletter November 2018

November 11, 2018 in Conferences, Scholarship, TortsProfs | Permalink | Comments (0)

Friday, November 9, 2018

Sharkey on Vicarious Liability for Intentional Torts

Cathy Sharkey has posted to SSRN Institutional Liability for Employees' Intentional Torts:  Vicarious Liability as a Quasi-Substitute for Punitive Damages.

Modern day vicarious liability cases often address the liability of enterprises and institutions whose agents have committed intentional acts. Increasingly, when an employer is sued, the line is blurred between the principal’s vicarious liability for its agent’s acts and its own direct liability for hiring and/or failing to supervise or control its agent.

In this Article, I argue that, as a form of strict liability, vicarious liability will have an edge over direct employer negligence liability to the extent that there is a significant risk of under-detection of the failures of an employer’s preventative measures. Traces of this under-detection rationale for vicarious liability can be found in the academic literature and court decisions, but it warrants further elaboration. The risk of under-detection provides a strong justification for the expansion of the scope of institutional or employer vicarious liability.

The under-detection rationale, moreover, has the potential to serve as a coherent framework for some modern doctrinal debates, including whether punitive damages should be imposed either vicariously or directly upon employers when their employees commit intentional torts. Specifically, I argue that the under-detection rationale correspondingly strengthens the case for punitive damages in direct negligence cases and weakens the case for punitive damages imposed in vicarious liability cases. Focusing on under-detection, vicarious liability acts as a quasi-substitute for punitive damages. And seen through this lens, Restatement (Second) of Torts § 909, Punitive Damages Against a Principal — typically defended as a “complicity rule” limiting the imposition of vicarious punitive liability on fairness grounds — is justified on economic deterrence grounds by allowing punitive damages coupled with direct negligence liability but limiting its operation in the vicarious liability sphere.

November 9, 2018 in Scholarship | Permalink | Comments (0)

Thursday, November 8, 2018

Sharkey on the Economic Loss Rule

Cathy Sharkey has posted to SSRN In Search of the Cheapest Cost Avoider:  Another View of the Economic Loss Rule.  The abstract provides:

The economic loss rule in tort engages two fundamental theoretical questions: (1) which interests should tort law protect; and, more pointedly, (2) how should we think about claims that arise along the boundary line between tort and contract?

This Article advances two claims that aim to clarify this controversial, often misunderstood, doctrine. First, it is imperative to distinguish what I will term the “stranger paradigm” from the “consensual paradigm.” The specter of the economic loss rule is raised in different categories of cases: products liability, contracting party, third party, and stranger. It should not be surprising that the economic loss rule plays out differently and has different ramifications across these categories. As an initial cut, classifying such categories of cases as either “stranger” or “consensual” (and treating them accordingly) helps clarify doctrinal confusion. More specifically, holding firm to such a distinction should prevent conventional rationales for the economic loss rule developed in stranger cases — such as the floodgates or limitless liability rationale — from being imported vel non into two-party contracting cases that comprise the bulk of commercial torts. It would also expose the flaw in courts’ holdings that the economic loss rule applies full stop in the products liability realm, yet has no application in two-party contracting cases, thus failing to recognize the common thread connecting these cases, both of which fit on a continuum within the consensual paradigm.

Second, and more ambitiously, I depart from conventional justifications and develop a unifying theoretical justification for the economic loss rule based on cheapest cost avoider principles that does apply across the categories of cases — albeit with less determinacy in the stranger paradigm than the consensual one. This framework also provides a way to resolve third-party cases, which straddle the stranger/consensual dividing line. That the cheapest cost avoider rationale can be applied across case categories and paradigms lends further weight to its promise as a unifying theoretical justification for the economic loss rule in tort.

November 8, 2018 in Scholarship | Permalink | Comments (0)

Tuesday, October 30, 2018

Abraham & Kendrick on Affirmative Duty

Ken Abraham & Leslie Kendrick have posted to SSRN There's No Such Thing as Affirmative Duty.  The abstract provides:

Tort law has long distinguished between misfeasance, which is accompanied by a duty of care, and nonfeasance, which is generally not. Thus a driver has a duty to brake for a pedestrian in the street, but a bystander has no duty to rescue him. Only in rare cases do parties like the bystander have an “affirmative” duty to exercise reasonable care. But the idea of affirmative duty has done more harm than good. The doctrinal treatments of nonfeasance and affirmative duties too often encompass situations that could just as easily be considered regular misfeasance cases. This, we argue, is because even textbook illustrations of misfeasance and nonfeasance reveal little real distinction between the two.

In effect, there is no such thing as affirmative duty, as tort law uses that term. This article’s primary objective is to show that this is the case and explain why it is so. We reveal the descriptive and normative confusion surrounding the concept of affirmative duty. We explain the sources of this confusion, both conceptual and historical. And we begin the project of reconstructing existing law on a firmer conceptual footing. As it turns out, this does not involve the categories historically relied on by tort law. Instead, these categories contain within them other factors that help to define the scope of liability. In the end, ideas such as misfeasance and nonfeasance, and regular duties and “affirmative” duties, are largely beside the point.

October 30, 2018 in Scholarship | Permalink | Comments (0)

Wednesday, October 24, 2018

CFP: Oxford Studies in Private Law Theory

Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume. 

Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory.  The series will publish exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general.  Submissions should be approximately 12,000 words, inclusive of footnotes.  The deadline for submission is May 6th, 2019.

All accepted papers will be presented at a workshop at Notre Dame’s Global Gateway campus in London in late summer/early fall 2019.  The Notre Dame Program in Private Law will cover the expense of contributors’ travel and accommodation.  

To submit a paper for consideration, please email John Oberdiek at oberdiek AT

October 24, 2018 in Conferences, Scholarship | Permalink | Comments (0)

Thursday, October 18, 2018

Reilly on Catholic Dioceses in Bankruptcy

Marie Reilly has posted to SSRN Catholic Dioceses in Bankruptcy.  The abstract provides:

The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot button issues. It offers an analysis of the legacy of the Catholic cases for bankruptcy law, religious liberty, and for the relationships among entities within a Catholic diocese.

October 18, 2018 in Scholarship | Permalink | Comments (0)

Monday, October 15, 2018

JOTWELL Torts: Keating on Abraham & White on the Dignitary Torts

At JOTWELL, Greg Keating reviews Ken Abraham and Ted White's The Puzzle of the Dignitary Torts.

October 15, 2018 in Scholarship, Weblogs | Permalink | Comments (0)

Friday, October 12, 2018

Smith on the Structure of Remedial Law

Stephen Smith has posted to SSRN The Structure of Remedial Law.  The abstract provides:

Notwithstanding its practical and, at least in the common law, historical importance, remedial law as a legal category has attracted little attention. The kinds of broad questions that courts and commentators regularly ask about the scope, nature, and aims of substantive law subjects such as contract law and tort law have not been asked about remedial law. This paper addresses this gap. It focuses on four fundamental questions about remedial law’s structure: (1) What is a remedy? (2) Why does the law provide remedies? (3) When are remedies available? and (4) What kinds of remedies are available?

October 12, 2018 in Scholarship | Permalink | Comments (0)

Thursday, October 11, 2018

Bell on Thacker v. TVA

Bernard Bell has posted companion pieces to the Yale Journal on Regulation's "Notice & Comment."  His introduction captures the theme:

On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”).  Order, Dkt. 17-1201, 2018 WL 4650382.  (The docket sheet is available here.)  The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars a negligence claim against the TVA.  Many readers of this blog probably spend little mental energy on the FTCA, or the interaction between tort liability and Administrative Procedure Act (“APA”) judicial review.  (And you probably expend even less contemplating the TVA or any other government corporation.)  This series of two posts previews Thacker and discusses the complementary relationship between ex post tort liability and ex ante judicial review.

Part I is here, and part II is here.

October 11, 2018 in Current Affairs, Scholarship | Permalink | Comments (0)

Thursday, September 27, 2018

Simons on Self-Defense and Necessity

Ken Simons has posted to SSRN Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality.  The abstract provides:

What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? This essay addresses these issues with a particular focus on legal and moral duties of compensation. First, the essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private necessity principles that apply to appropriations of private property also apply to actors who intentionally infringe or violate rights of bodily integrity. The essay then turns to the privilege of public necessity, which generally is not, but perhaps should be, accompanied by a duty to compensate, and its relationship to rights of self-defense. The next section explores mistake, justification, and excuse, and considers the question of whether an innocent victim should receive compensation from a reasonably mistaken defender. The final section explains that the notion of conditional fault helps make sense of a strict liability duty to compensate.

September 27, 2018 in Scholarship | Permalink | Comments (0)

Friday, September 21, 2018

Schwarcz on the Constitutionality of U.S. Insurance Regulation

Daniel Schwarcz has posted to SSRN Is U.S. Insurance Regulation Constitutional?.  The abstract provides:

Insurance regulation is ostensibly the primary domain of the states. In practice, however, the most important and powerful entity in insurance regulation is not a state at all, but a non-profit corporation known as the National Association of Insurance Commissioners, or NAIC. Much of the NAIC’s power lies in its production of various “handbooks” and “manuals” that have the force of law because they are incorporated by reference in state insurance codes. Under this statutory scheme, when the NAIC updates or changes its various manuals, handbooks, or accounting forms, it also changes state insurance regulation. Because the NAIC is a private entity, it produces these various materials that have the force of law without being bound by any safeguards that ordinarily accompany the production of regulation, whether at the state or federal level. Moreover, the NAIC uses its unique accreditation program to directly pressure state legislatures to delegate this authority to it. This Article argues that this scheme violates basic separation of powers and non-delegation principles embedded in every state Constitution. Under any reasonable version of these principles, the delegation of state regulatory authority to a private entity that directly pressures legislatures to make this delegation and whose actions are not reviewable through any formal judicial or administrative process is unconstitutional. Recognizing this conclusion has the potential to improve state insurance regulation by increasing the accountability of state regulators and the NAIC. But it also carries the risk of undermining state insurance regulation by frustrating efforts to promote uniform national standards. However, the Article suggests that state legislatures can enact reforms that simultaneously remedy the unconstitutional structure of state insurance regulation while preserving the many practical benefits that flow from delegating production of regulatory standards to a single, national entity like the NAIC. In particular, they can establish through an interstate compact an entity that is truly independent from state insurance regulators and that is empowered to review the NAIC’s production of regulatory materials that have the force of law.

(Via Solum/LTB)

September 21, 2018 in Scholarship | Permalink | Comments (0)

Monday, September 17, 2018

JOTWELL Torts: Simons on Oberdiek on Risk

At JOTWELL, Ken Simons reviews John Oberdiek's Imposing Risk:  A Normative Framework

September 17, 2018 in Books, Scholarship, Weblogs | Permalink | Comments (0)

Friday, September 14, 2018

Duff on the Adequacy of Workers' Compensation

Michael Duff has posted to SSRN How the U.S. Supreme Court Deemed the Workers' Compensation Grand Bargain 'Adequate' Without Defining Adequacy.  The abstract provides:

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained tort liability while eliminating many or all affirmative defenses. The Minnesota Employees’ Compensation Commission and the National Civic Federation (NCF) catalyzed the national conversation on workers’ compensation from 1909-1911, and it was an NCF lawyer who was substantially responsible for a draft that became the first workers’ compensation statute upheld by the U.S. Supreme Court as constitutional. Contrary to the view held by some, the foundational Supreme Court opinions constitutionally authorizing the workers’ compensation “Grand Bargain” — statutory benefits for tort damages — set no workers’ compensation benefit floor. The article parses the opinions to emphasize the point, and then goes on to explore the context of what seems a strange omission. Ultimately, the article concludes that the Court “deferred,” sub silentio, to the private bodies of experts who had been investigating, reporting, and deliberating upon the European systems. The difficulty with the Court’s approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages. The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers’ compensation benefits. This absence of an explicit benefit floor should give pause to proponents of schemes seeking to export the workers’ compensation model to other legal regimes.

September 14, 2018 in Scholarship | Permalink | Comments (0)