TortsProf Blog

Baker on Insurance in Mass Tort Litigation

Tom Baker has posted to SSRN Where's the Insurance in Mass Tort Litigation?.  The abstract provides:

This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their liability insurers, if any, later; and (4) many mass tort plaintiff law firms rely on non-recourse litigation funding that resembles the earliest forms of commercial insurance – bottomry and respondentia – and there is an emerging insurance market that reduces the cost of this funding and may one day supplant it. In addition to providing a new understanding of the role of insurance in mass tort litigation, this research provides empirical support for two of the conceptual insights in Kenneth Abraham’s Liability Century: (1) the mismatch between product liability and product liability insurance that emerged near the end of the 20th Century, and (2) the increasingly insurance-like function of tort law.

Lytton on the Coverup of Child Sexual Abuse

Tim Lytton has posted to SSRN Tort Claims for the Coverup of Child Sexual Abuse:  Private Litigation, Corporate Accountability, and Institutional Reform.  The abstract provides:

Tort claims for the coverup of child sexual abuse exemplify the use of civil litigation as an effective response to serious corporate misconduct. This Article analyzes how tort claims against Catholic dioceses, the Boy Scouts of America, and U.S.A. Gymnastics empowered child sexual abuse survivors to hold powerful institutional leaders accountable for covering up and facilitating the abuse. The Article demonstrates the importance of access to civil justice when corporate interests capture law enforcement and administrative agencies, as well as the therapeutic values of the litigation process for victims of traumatic injury.

Wright and Stapleton Discuss Causation

Richard Wright has posted to SSRN Dialogues on Causation with Stapleton.  The abstract provides:

This paper, forthcoming in an Oxford University Press festschrift in honour of Jane Stapleton, retraces my discussions and debates with her over several decades on the concept of causation and its employment in determinations of legal responsibility. Until recently, she agreed with me on the need (i) to distinguish causation in its core sense of factual, scientific causation from the further issues involved in the determination of legal responsibility and (ii) to employ the more comprehensive, philosophically based NESS (necessary for the sufficiency of a sufficient set) analysis of causation to handle properly cases that are not properly resolved by the traditional but-for test. However, an incomplete understanding of the NESS analysis, combined with her aversion to philosophical analysis and her desire to employ concepts with which judges are familiar, have led her to propose “more forensically useful” modified-but-for versions of the NESS analysis, all of which are deficient. Nevertheless, her papers have required me to further clarify and elaborate the NESS analysis and have contributed to its general acceptance by academics and increasing acceptance and use by the courts, including the highest courts in Australia, the United Kingdom and the United States.

JOTWELL Torts: Bernstein on Tenzer on Social Media

At JOTWELL, Anita Bernstein reviews Leslie Y. Garfield Tenzer's Social Media and the Common Law.

Bant: The Culpable Corporate Mind

Elise Bant (as editor) has published The Culpable Corporate Mind from Bloomsbury.  The blurb provides:

This collection examines critically, and with an eye to reform, conceptions and conditions of corporate blameworthiness in law. It draws on legal, moral, regulatory and psychological theory, as well as historical and comparative perspectives. These insights are applied across the spheres of civil, criminal, and international law.

The collection also has a deliberate focus on the 'nuts and bolts' of the law: the legal, equitable and statutory principles and rules that operate to establish corporate states of mind, on which responsibility as a matter of daily legal practice commonly depends.The collection therefore engages strongly with scholarly debates.

The book also speaks, clearly and cogently, to the judges, regulators, legislators, law reform commissioners, barristers and practitioners who administer and, through their respective roles, incrementally influence the development of the law at the coalface of legal practice.

Order online at www.bloomsbury.com  – use the code GLR BE1UK for UK orders and GLR BE1US for US orders to get 20% off!

Lahav on Products and the Crime/Tort Distinction

Alexi Lahav has posted to SSRN Crime and Tort:  Reflections on Legal Categories.  The abstract provides:

This Essay investigates how a particular category of torts—suits for injuries caused by dangerous products—has been seen alternatively as based in contact or criminal law—in addition to, or sometimes instead of, an independent doctrine sounding in tort that arises from a duty not to harm others. This category problem has plagued courts even though, since the 1850s, courts have held that manufacturers had a duty enforceable by private suit not to sell harmful products. The Essay tells the story of regulation of one very dangerous product, milk, in the late nineteenth century as a window into the meaning of how conduct is categorized, with reflections on the significance of putting torts at the periphery rather than the center. The meanings of legal categories map on to conceptions about how society should be governed that continue to be at the heart of many doctrinal and policy debates today.

Two by Steel

Sandy Steel has posted to SSRN Deterrence in Private Law.  The abstract provides:

Non-consequentialist justifications of private law liability foreground the role of the law in setting out, part-constituting, and providing enforcement of interpersonal moral rights and duties at the suit of right-holders. The justificatory role of deterrence is either explicitly rejected or hardly mentioned. The impression given is that deterrence is somehow necessarily inconsistent with the justificatory role of interpersonal moral rights and duties. My aim in this paper is to show that this is not the case. I try to outline a general account of the normative role of deterrence in the justification of private law norms and enforcement. In making this argument, I will ultimately be affirming Gardner’s view that deterrence matters, non-trivially, to private law, while not being the whole story, or even the most important story.

And also, Damages Without Loss.  The abstract provides:

One of the most disputed issues in the law of damages in recent years has been the existence and justification of substantial damages awards for private law wrongs in circumstances in which the victim of the wrong has suffered no loss. Some argue that such awards exist and are justifiable on the basis that they vindicate, in some sense, the rights of the person wronged.Others argue that a sophisticated loss-based analysis of these awards can in fact explain and justify all or most of the law. Finally, some argue that, while such awards do exist, they cannot be reconciled with the fundamentally loss-centred approach to damages in English law and so should be rejected.

In this article, I make two contributions to the debate about the existence and justification of damages awards without loss. First, after introducing some important analytical distinctions about the concept of loss, I show that there are indeed awards, normally described as compensatory, which do not aim to compensate for loss. While others have argued for a similar claim, the analysis here does so in a distinctive way: by focusing on the counterfactual nature of the concept of loss; in addition, it responds to recent attempts to salvage a loss-based analysis of certain awards. Secondly, it examines in greater depth the possible normative foundations of damages without loss. I argue that non-loss-based awards can be justified, (i) by the duties that wrongdoers incur upon breaching a duty to serve the underlying goal of the original duty which has been breached, (ii) as a matter of fairness, and (iii) tentatively, in some cases, as a matter of expressive vindication. I show how the existence of such awards does not undermine, but may sit coherently alongside, damages for loss. In short, the article provides an analytical and normative defence of damages without loss.

Shapiro on Democracy and Civil Litigation

Matthew Shapiro has posted to SSRN Democracy, Civil Litigation, and the Nature of Non-representative Institutions.  The abstract provides:

With democratic governance under threat in the United States and abroad, legal scholars have endeavored to defend the institutions considered integral to a well-functioning democracy. According to an increasing number of civil procedure scholars, civil litigation should be included among those institutions, with many contending that litigation performs several important “democratic” functions.

This Article draws on political theory to explicate and evaluate this emerging democratic defense of civil litigation, as well as to situate the defense in the broader context of democratic argumentation about non-representative institutions in legal theory. Democracy is just as complex as any other normative concept, and that complexity pervades the democratic defense of civil litigation. Not only do civil procedure scholars identify several distinct democratic functions that litigation ostensibly serves; they also rely (often implicitly) on several distinct conceptions of democracy to draw those connections. More specifically, when the democratic defense runs up against litigation’s many incontrovertibly non-majoritarian features, proponents tend to resort to what political theorists have described as less political conceptions of democracy—that is, conceptions that see democracy less as a procedure for negotiating persistent disagreements between competing segments of society through ongoing contestation over political power and more as a set of social activities further removed from the exercise of political power or even a set of substantive moral ends to be imposed via that power once and for all.

This Article argues that such depoliticization of democracy has considerable drawbacks in the civil justice context. In recent decades, the institution of civil litigation has come under assault from both the right and left. Yet the less political conceptions of democracy underwriting significant facets of the democratic defense are unlikely to vindicate litigation against those attacks. For, in order to assimilate litigation to other, representative institutions, the democratic defense must subsume disparate, often-competing values under the single heading of “democracy.” Such conflation not only elides the many inevitable tradeoffs between those values, but also distracts us from what’s distinctive and most valuable about litigation—what functions litigation can perform but other political institutions can’t. And without a clear sense of litigation’s unique role in our political system, defenders of litigation will struggle to parry calls for civil justice “reform,” which on a wide range of policy issues—from arbitration to aggregate litigation to private enforcement—often posit a set of alternative institutions that supposedly serve the same purposes as litigation, only better.

In its tendency to depoliticize democracy, the democratic defense of civil litigation reflects similar trends in recent legal theory. This Article shows how scholars of both private and public law increasingly invoke democracy to justify the work of non-representative institutions such as courts and administrative agencies but rely on less political conceptions of the ideal to do so. Such depoliticization risks obscuring the institutions’ most distinctive normative contributions, as well as the inevitable conflicts between those contributions and other fundamental values, including a democratic commitment to popular sovereignty. Absent consensus about how to resolve such conflicts, the best we may be able to do is to render non-representative institutions such as litigation more accountable to other, representative institutions that are better situated to negotiate persistent disagreements about fundamental values. Democratic defenses of litigation and other non-representative institutions, by contrast, attempt to account for those institutions’ non-majoritarian qualities at the steep price of taking much of the disagreement—and thus much of the politics—out of democracy.

Burch on Improving MDLs

Elizabeth Chamblee Burch has posted to SSRN MDL for the People.  The abstract provides:

By the terms of its own statute and the limits of its constitutional authority, multidistrict litigation (“MDL”) is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case- specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL’s kin, the class action.

But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of MDL are just numbers on a spreadsheet, not clients with their own agency. In conducting this first-ever study of MDL plaintiffs, we explore their experience. By moving their cases far from home, courts and attorneys seem to say “trust us.” But knowledge is essential to trust, and study participants knew little about the status of their case, their judge, or even the identity of their attorney.

Three things were clear to participants. First, they were aware of how little they recovered. Second, from their perspective, justice had not been done. Only 1.8 percent felt their lawsuit accomplished what they hoped it would. And finally, participants wanted to be informed and involved.

To salvage MDLs, courts must empower plaintiffs through technology and transparency. Technology can open access to courts, bring plaintiffs into the process, and give them a voice without sacrificing MDL’s efficiencies. Creating online forums can cut through the layers of lawyers and allow plaintiffs to communicate directly with lead attorneys and each other. Armed with information and opportunity, plaintiffs can also hold attorneys accountable by evaluating them. Placing leadership performance reviews on court dockets and using them as a factor in awarding leaders’ common-benefit fees can give them weight while bringing organizational theory to bear on future leadership selections. Finally, disciplining and sanctioning individual lawyers for unethical conduct can disrupt neglect and improve the public’s faith in the system.

JOTWELL Torts: Wriggins on Gold on Mandatory Landlord Insurance

At JOTWELL, Jenny Wriggins reviews Allyson Gold's Insuring Justice.

Shavell on Causation

Steven Shavell has posted to SSRN An Alternative to the Basic Causal Requirement for Liability Under the Negligence Rule.  The abstract provides:

The primary causal requirement that must be met for a negligent party to be held liable for a harm is a demonstration that the harm would not have occurred if the party had not been negligent. Thus, for a speeding driver to be found liable for harm done in a car accident, it must be shown that the accident would not have happened if the driver had driven at a reasonable speed. The main point made here is that this basic causal requirement may be difficult to satisfy and hence may interfere with the discouragement of negligence. Therefore, an alternative and usually easier-to-meet causal requirement is proposed — that the harm would not have occurred if the party had not been engaged in his activity (if the driver had not been driving).

Abraham on the Insurability of Civil Fines and Penalties

Ken Abraham has posted to SSRN The Insurability of Civil Fines and Penalties.  The abstract provides:

In the last few decades, administrative regulation at both the federal and state levels has much more frequently than in the past deployed a distinctive weapon in its remedial arsenal: the imposition of a civil fine or penalty on actors who violate a regulatory dictate or prohibition. As the imposition of such civil fines and penalties has become more common, and as their magnitude increases, a new issue has begun to arise: whether insurance against liability for civil fines and penalties is permissible as a matter of public policy. Only a few jurisdictions have addressed the question at all thus far, and even these decisions do not have definitive breadth; they can easily be understood to leave a number of issues open.

The Article characterizes the different sources of civil liability for regulatory fines and penalties, develops the criteria that should be relevant to the insurability of such liability, canvasses the sparse case law and statutory law that applies directly to the issue, and then examines the closest analogy to the issue – the insurability of liability for punitive damages -- exploring the ways that different states, with different rules governing the insurability of punitive damages, could address the insurability of liability for civil fines and penalties. Finally, the Article analyzes the different litigation contexts in which the insurability issue may arise, including the collateral effects that settlement of claims for, and assessment of, fines and penalties may have on policyholders’ coverage rights and insurers’ coverage defenses. My conclusion is that a contextual approach that would take into account the nature of the violation generating the civil fine or penalty, and the applicable state’s existing law on analogous issues (mainly the insurability of liability for punitive damages) is likely to be adopted. The result would be that liability for certain fines and penalties will be insurable, but that liability for others will not be.

ALI Announces Restatement of Medical Malpractice

It is being separated from the Restatement of Miscellaneous Provisions (formerly Concluding Provisions).  Mark Hall will be a Reporter, alongside Nora Freeman Engstrom and Mike Green.  The announcement is here.

Rabin on Corporate Responsibility in Mass Disaster Cases

Bob Rabin has posted to SSRN Corporate Responsibility in Mass Disaster Cases.  The abstract provides:

In this essay, I focus on corporate responsibility in tort for single-event mass disasters, such as toxic leaks, wildfires, and oil spills. Analytically, the singular character of these events is evident in at least two prominent ways. First, stand-alone financial loss is often the crux of the harm suffered in single-event disasters. And second, the prospect of unbounded liability — irrespective of whether the harm is purely economic loss or harm to persons or property — is frequently a benchmark to reservations about recognizing responsibility in these scenarios. My discussion is guided by these themes.

Hylton on Tort Theory in the Restatement

Keith Hylton has posted to SSRN Tort Theory and the Restatement, in Retrospect, a paper he delivered at Southwestern as part of the Concluding the Restatement (Third) of Torts symposium.  The abstract provides:

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared that process to the process by which the Restatement identifies and articulates rules. In this paper, I am looking back and assessing the connection between positive tort theory and the Restatement. My general argument is that positive tort theory has been successful in explaining the grounds for the common law of torts, and at the same time it remains an underutilized and underexploited resource for the Restatement project.

Margoni & Brown On Jurors, Mental States, and Breach

Francesco Margoni & Teneille Brown have published Jurors use mental state information to assess breach in negligence cases, available here.

Thanks to Sheila Scheuerman for the tip.

Perry on Harmful Precautions

Ronen Perry has posted to SSRN Harmful Precautions.  The abstract provides:

The time-honored proverb “one person’s loss is another person’s gain” captures a universal truth: the misfortune of some may be a blessing to others. Surprisingly, this bit of conventional wisdom has been lost in the scholarly discussion of “the most central idea of many first-year torts classes today” (Zipursky, Sleight of Hand, 2007)

According to the conventional definition of reasonableness, commonly known as the Hand formula, a person acts unreasonably (negligently) towards another if they fail to take precautions whose cost for the actor is lower than the expected loss for the other that these precautions can prevent. While law and economics theorists have advocated and courts have often embraced adjustments to both sides of this algebraic formulation, the idea that the expected loss must be compared with the cost of precautions for the potential injurer has remained mostly uncontested. The Article unveils an overlooked yet fundamental flaw in the orthodox understanding and application of the Hand formula, namely the exclusion of the negative externalities of risk-reducing precautions from the analysis. Failing to take precautions typically increases the risk of harm to potential victims (“one person’s loss”) but may also confer benefits on the same people or others (“another person’s gain”). Taking additional precautions might therefore have negative externalities (the lost benefits to people other than the potential injurer). The Article shows that case law and academic literature have mostly ignored these repercussions, advocates their inclusion in the analysis of reasonableness, and explains how and to what extent this can be achieved.

The analysis unfolds as follows. Part I presents the origins of the traditional definition of reasonableness and demonstrates its entrenchment in legal practice and scholarship. It highlights the overlooked feature that has characterized this definition for almost a century: in assessing reasonableness, courts and scholars have consistently compared potential victims’ expected harm with the cost of prevention for the potential injurer, regardless of the negative impact of each precautionary measure on others.

Part II lays the theoretical foundations for the proposed legal modification. It first ascertains the most compelling normative rationale for the traditional definition of reasonableness, namely economic efficiency. It then shows that courts and scholars have regularly endorsed or advocated adjustments to the traditional definition when they realized that it would better serve its underlying goal as a result.

Part III argues that the legal reality depicted in Part I must be changed as per the insights outlined in Part II. It explains that ignoring the costs that precautionary measures impose on people other than the defendant in the assessment of reasonableness might lead to over-deterrence. The economic rationale thus calls for their inclusion in the analysis, as an additional adjustment to the Hand formula. Part III then clarifies whose costs must be considered, explains how these costs should be handled on the legal-conceptual level, and contends that they should be taken into account only if reasonably foreseeable.

Part IV shows that the negative externalities of precautions pose a much greater challenge under strict liability regimes, where traditional tools cannot ensure their internalization by potential injurers, and more radical solutions are required.

Hunter, Shannon & Amoroso on Teaching Palsgraf

Richard Hunter, John Shannon, and Henry Amoroso have posted to SSRN A Teaching Note on Negligence:  Palsgraf Revisited.  The abstract provides:

The case of Palsgraf v. Long Island Railroad (1928) provides an opportunity to engage students in a study of the cause of action termed negligence. The article explores issues relating to proof of negligence, defenses to negligence, and more directly, to the views of two American jurists, Benjamin Cardozo and William Andrews, relating to the issues of duty and causation—critical elements of proof.

JOTWELL Torts: Nolan on Giliker on Vicarious Liability

At JOTWELL, Donal Nolan reviews Paula Giliker's Vicarious Liability in the Common Law World.

Scordato on Causation

Marin Scordato has posted to SSRN Three Kinds of Fault:  Understanding the Purpose and Function of Causation in Tort Law.  The abstract provides:

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning at least three times, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate.

In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law more than in its dominant cause of action, negligence. Unsurprisingly, then, the causation requirement in tort law, and in negligence, has received a great deal of attention and analysis by both courts and commentators. Nevertheless, there remains a striking lack of consensus regarding the causation requirement, ranging from disagreement about the basic rationale for its existence as a part of the negligence claim to the more specific details of its doctrinal organization and articulation.

This article contributes to this ongoing discussion by offering an account of the causation requirement in negligence that places at its core the role that requiring causation plays in seeking to restrict the formal liability generated by the negligence tort to only those defendants who are deemed to be genuinely socially responsible for the harm suffered by the plaintiff. On this account, causation exists as part of the prima facie case for negligence, and in tort law more generally, as a means of insuring that all liable defendants possess a particular kind of fault with respect to the injury suffered by the plaintiff.

In developing this understanding of causation in negligence, the article identifies three different kinds of fault that a defendant might have regarding a given harm, demonstrates how a workable system of injury compensation could exist that requires only one, and explains how and why the causation requirement operates to insure that negligence liability is conditioned upon the presence of all three. Moreover, the article describes how the long-standing doctrinal features of the causation requirement, including its best-known exceptions, can best be understood as serving this underlying policy purpose. Additionally, suggestions for improving the effectiveness of causation doctrine that follow from this analysis are identified and discussed.