TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, November 29, 2019

Michigan Junior Scholars Conference

The University of Michigan Law School invites junior scholars to attend the 6th Annual Junior Scholars Conference, which will be held on April 17-18, 2020, in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcomed.

Applications are due by January 3, 2020.

Further information can be found at the Conference website: https://www.law.umich.edu/events/junior-scholars-conference/Pages/2020conference.aspx

November 29, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Tuesday, November 26, 2019

AALS Torts Section Newsletter

Monday, November 25, 2019

JOTWELL Torts: Goldberg on Descheemaeker on Compensating Emotional Harm

At JOTWELL, John Goldberg reviews Eric Descheemaker's Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).

November 25, 2019 in Damages, Scholarship, Weblogs | Permalink | Comments (0)

Friday, November 22, 2019

New Torts Books from Hart: Markesinis, Bell & Janssen; Robertson & Goudkamp; Beuermann

Markesinis's German Law of Torts

Basil S Markesinis, John Bell and André Janssen

Since its first appearance in 1986, this magisterial work has won uniform praise from many of the world’s leading comparatists. It has been acclaimed by senior judges and has been cited by the courts of many countries. This new, substantially rewritten and systematically updated fifth edition of the work, contains over 95 leading judgments, most translated in their entirety, along with references to over 2,000 other decisions from Germany and the common law world. While the book remains an ideal tool for teaching comparative torts and comparative methodology, the fact that it has been extensively rewritten makes it an indispensable source of inspiration for those with a professional interest in tort litigation and tort law reform. This edition has paid particular attention to liability for internet activity, medical liability and the protection of personality rights and private life.

Sir Basil S Markesinis QC FBA LLD DR. H.C. (MULT.) is a Fellow of the British Academy, a Foreign Fellow of the Accademia dei Lincei of Rome, the Royal Belgian Academy of Arts and Sciences in Brussels, the Royal Netherlands Academy of Arts and Sciences in Amsterdam, and a Corresponding Fellow of the Academy of Athens and the Académie des Sciences Morales et Politques in France. He is a Bencher of Gray’s Inn.

John Bell QC FBA is Professor of Law at the University of Cambridge.

André Janssen is Professor of Private Law at Radboud University, Nijmegen.

Oct 2019   |   9781509933198   |   728pp   |   Hardback   |    RSP: £150  

Discount Price: £120

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Form and Substance in the Law of Obligations

Edited by Andrew Robertson and James Goudkamp

This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.

Andrew Robertson is Professor of Law at the University of Melbourne.

James Goudkamp is Professor of the Law of Obligations at the University of Oxford.

Nov 2019   |   9781509929450   |   504pp   |   Hbk   |    RSP: £95  

Discount Price: £76

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

 

Reconceptualising Strict Liability for the Tort of Another

Christine Beuermann

This book adopts a novel approach to resolving the present difficulties experienced by the courts in imposing strict liability for the tort of another. It looks beyond the traditional classifications of ‘vicarious liability’ and ‘liability for breach of a non-delegable duty of care’ and, for the first time, seeks to explain all instances of strict liability for the tort of another in terms of the various relationships in which the courts impose such liability. The book shows that, despite appearances, there is a unifying feature to the various relationships in which the courts currently impose strict liability for the tort of another. That feature is authority. Whenever the courts impose strict liability for the tort of another, the defendant is either vested with authority over the person who committed a tort against the claimant or has vested or conferred a form of authority upon that person in respect of the claimant. This book uses this feature of authority to construct a new expositive framework within which strict liability for the tort of another can be understood.

Christine Beuermann is Lecturer in Law at the University of Newcastle.

Nov 2019   |   9781509917532   |   240pp   |   Hbk   |    RSP: £60  

Discount Price: £48

Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!

November 22, 2019 in Books, Scholarship | Permalink | Comments (0)

Tuesday, November 19, 2019

Teitelbaum on Computational Complexity and Deterrence

Joshua Teitelbaum has posted to SSRN Computational Complexity and Tort Deterrence.  The abstract provides:

Standard economic models of tort deterrence assume that a tortfeasor's precaution set is convex — usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (e.g., the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor's behavior in the direction of socially optimal care over time more rapidly than strict liability.

November 19, 2019 in Scholarship | Permalink | Comments (0)

Monday, November 18, 2019

Engstrom on Lone Pine Orders

Nora Engstrom has posted to SSRN The Lessons of Lone PineThe abstract provides:

Over the past three decades, Lone Pine orders have become a fixture of the mass- tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain — or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it’s not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device.

But that’s just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen — and, in places, complicate — our understanding of these profoundly influential phenomena.

November 18, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, November 6, 2019

Oman on Private Law and Local Custom

Nathan Oman has posted to SSRN Private Law and Local Custom.  The abstract provides:

One of the striking features of private law in English-speaking countries is the extent to which it is mainly common law. To be sure, many areas of tort, contract, and property are subject to statutes, and civil law jurisdictions demonstrate that private law can be codified. Still, most Anglo-American private law is common law. This chapter explores that relationship. Both private law and the common law fit awkwardly into the dominant theoretical models of law, which emphasize regulation and social control by the state. Thus, the common law has long been criticized for failing to comply with the model of clearly articulated rules that are announced ex ante and applied ex post. The private law, for its part, contains numerous features that make it a poor candidate for a well-designed regulatory regime. Law and economics (L&E) has dominated much of contemporary private law theory. Beginning in the 1980s, however, neoformalist critics focused on features of private law that L&E can explain only awkwardly. These accounts, in turn, provide responses to many of the standard criticisms of the common law. While this movement is encouraging, theoretical challenges remain. Neoformalism, despite its ambition to take the structure of legal doctrine more seriously than L&E, has difficulty accounting for large swaths of private law. Furthermore, these theories have tended to be highly abstract, placing little or no significance on the particularity of the communities over which private law claims authority. In contrast, the common law often evidences a parochialism that focuses on the history or practices of specific communities. A renewed focus on the classical common law theory of the seventeenth and eighteenth centuries offers one way of responding to these weaknesses in neoformalism.

November 6, 2019 in Scholarship | Permalink | Comments (0)

Thursday, October 31, 2019

Palmer on the Woodhouse Report

Sir Geoffrey Palmer has posted to SSRN A Retrospective on the Woodhouse Report:  The Vision, the Performance, and the Future.  The abstract provides:

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

October 31, 2019 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Tuesday, October 29, 2019

Reynolds on the Role of Private Litigation in Auto Recalls

Conor Dwyer Reynolds has posted to SSRN The Role of Private Litigation in Automotive Recall Process.  The abstract provides:

This Article presents an empirical perspective on the role of tort litigation in generating federal automotive recalls. It begins with a brief history of the American automotive recall process, beginning with the creation of the federal agency responsible for handling such recalls, the National Highway Traffic Safety Administration (NHTSA). It then details the contemporary automotive recall process, examining the administrative apparatus within NHTSA that investigates and orders recalls. Next, it provides the traditional view of private litigation's role in the automotive recall process, which sees private litigation's only role in the initiation of automotive recalls as creating the specter of post hoc liability for defect-related injuries. The heart of the paper tests this view by generating a dataset containing automotive recalls issued in 2014, coding each recall for the presence of defect-related litigation filed before the recall was initiated. The data, alongside narratives of each recall that coded positively for pre-recall litigation, demonstrates that the majority of vehicles recalled were preceded by defect-related litigation. This data an alternative view of private litigation's role in the automotive recall process, one that asserts the existence of a more direct, investigatory role for private litigators in initiating recalls.

October 29, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, October 23, 2019

Bernstein on MacPherson

Anita Bernstein has posted to SSRN The Reciprocal of MacPherson.  The abstract provides:

MacPherson v. Buick Motor Company won fame for taking down a privity barrier that stood between consumers and manufacturers of products that cause injury. Privity had offered liability-shelter to remote vendors; MacPherson destroyed that shelter when it held that nonprivy vendees have an entitlement to care and vigilance. In this relation of mutually constituted security and danger, privity and MacPherson are each the other’s reciprocal. This article, written to celebrate the centenary of a great decision, explores the reciprocity path that MacPherson helped to build by considering instances of law-mandated care and vigilance that came after it. Broadly worded obligations as provisioned in MacPherson function to support, or at least are consistent with, entitlements and shelters that business entities now receive from American consumers.

October 23, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Monday, October 21, 2019

Busch on a European Perspective on Oberdorf

Christoph Busch has posted to SSRN When Product Liability Meets the Platform Economy:  A European Perspective on Oberdorf v. Amazon.  The abstract provides:

On 3 July 2019 the United States Court of Appeals for the Third Circuit handed down a ruling in the case Oberdorf v. Amazon which could have a seismic effect for online marketplaces on both sides of the Atlantic. The case not only puts a spotlight on how product liability law is applicable in the platform economy. It could also influence the broader transatlantic debate about the future of platform liability. This editorial for the Journal of European Consumer and Market law offers some European reflections on the Oberdorf case and its potential ramifications for the EU policy debate.

October 21, 2019 in Products Liability, Scholarship | Permalink | Comments (0)

Thursday, October 17, 2019

JOTWELL Torts: Bublick on Keating on the Nature of Tort Law

At JOTWELL, Ellie Bublick reviews Greg Keating's Is Tort Law "Private"?.

October 17, 2019 in Scholarship, Weblogs | Permalink | Comments (0)

Wednesday, October 16, 2019

Janger & Twerski on Amazon as a Seller

Edward Janger & Aaron Twerski have posted to SSRN The Heavy Hand of Amazon:  A Seller Not a Neutral Platform.  The abstract provides:

Since the adoption of Section 402A of the Second Restatement of Torts, every party in a product’s distribution chain has been potentially liable for injuries caused by product defects. Consumers who buy from reputable sellers are almost always guaranteed that they will have a solvent defendant if injured by a product defect. Amazon, though responsible for a vast number of retail sales, has sought to avoid liability by claiming that it is not a seller but a neutral platform that merely facilitates third-party sales to consumers. With the exception of one court most courts have sided with Amazon and left injured consumers without a remedy against insolvent third-party sellers. All of the decided cases have failed to examine the nuances and complexity of how Amazon does business. This essay puts the lie to Amazon’s claim that it is not a seller by demonstrating how Amazon controls third-party sales and hides its true role from consumers.

October 16, 2019 in Products Liability, Scholarship | Permalink | Comments (0)

Monday, October 14, 2019

Civil Liability and New Technologies

Congratulations to Ewa Baginska, the University of Gdansk, and the European Group on Tort Law for a successful and enjoyable conference on "Civil Liability and New Technologies" last week.  Most of the presentations focused on liability for autonomous vehicles (there are relatively recent laws in the UK and Germany) and platforms such as Google, Twitter, and Facebook.  Speakers included EGTL members Piotr Machnikowski, Bernhard Koch, Ken Oliphant, Ulrich Magnus, and me, as well as Constantijn Bakker (Amsterdam School of International Business) and Dorota Masniak (Gdansk).  Some of the papers will appear in Insurance Review.  The program is here:  Download Civil liability and new technologies_program

October 14, 2019 in Conferences, Scholarship | Permalink | Comments (0)

Thursday, October 3, 2019

Data Privacy at the ALI

Daniel Solove and Paul Schwartz have posted to SSRN ALI Data Privacy:  Overview and Black Letter Text.  The abstract provides:

In this Essay, the Reporters for the American Law Institute Principles of Law, Data Privacy provide an overview of the project as well as the text of its black letter. The Principles aim to provide a blueprint for policymakers to regulate privacy comprehensively and effectively.

The United States has long remained an outlier in privacy law. While numerous nations have enacted comprehensive privacy laws, the U.S. has clung stubbornly to a fragmented, inconsistent patchwork of laws. Moreover, there long has been a vast divide between the approaches of the U.S. and European Union (EU) to regulating privacy – a divide that many consider to be unbridgeable.

The Principles propose comprehensive privacy principles for legislation that are consistent with certain key foundations in the U.S. approach to privacy, yet that also align the U.S. with the EU. Additionally, the Principles attempt to breathe new life into the moribund and oft-criticized U.S. notice-and-choice approach, which has remained firmly rooted in U.S. law. Drawing from a vast array of privacy laws and frameworks, and with a balance of innovation, practicality, and compromise, the Principles aim to guide policymakers in advancing U.S. privacy law.

October 3, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, October 2, 2019

Sokol on State Tort Law and Climate Change

Karen Sokol has posted to SSRN Seeking (Some) Climate Justice in State Tort Law.  The abstract provides:

Over the last decade, an increasing number of path-breaking cases have been filed throughout the world seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the current climate crisis. This Article focuses on an important subset of those cases-namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change.

The Article begins with a synthesis of the history of U.S. climate tort litigation, grouping the cases into two "waves." The current state tort cases are in the second wave and represent an attempt to avoid the legal pitfalls that plagued the first. The Article then undertakes the first close examination of the defendants' response to the second-wave climate tort cases; namely, that federal common law preempts all the plaintiffs' state tort claims. Unsurprisingly, the issue has divided the courts that have decided it, as the Supreme Court caselaw is sparse and unclear. The Article identifies the doctrinal problem in the caselaw, and then argues that the only way to bring coherence to the law while adhering to federalism principles is to disallow preemption of state tort law by federal common law. Finally, the Article offers a new perspective on why that is also the right result as a policy matter.

The second-wave climate tort suits are part of larger global movement of resorting to the courts to demand climate justice that should be given a full hearing. The current era of climate disruption and its catastrophic threats demand not only new and improved legal and policy mechanisms, but also the use of current ones-including state tort law-to the fullest extent possible. 

October 2, 2019 in Scholarship | Permalink | Comments (0)

Tuesday, October 1, 2019

Billauer on Wrongful Birth Claims

Barbara Billauer has posted to SSRN Re-Birthing Wrongful Birth Claims in the Age of IVF and Abortion Reforms.  The abstract provides:

Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And finally I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.

October 1, 2019 in Scholarship | Permalink | Comments (0)

Wednesday, September 25, 2019

Lemann on Liability for Autonomous Vehicles

Alex Lemann has posted to SSRN Autonomous Vehicles, Technological Progress, and the Scope Problem in Products Liability.  The piece is one of four in the "New Voices" symposium in the fall 2019 issue of the Journal of Tort Law.  The abstract provides:

Autonomous vehicles are widely expected to save tens of thousands of lives each year by making car crashes attributable to human error—currently the overwhelming majority of fatal crashes—a thing of the past. How the legal system should attribute responsibility for the (hopefully few) crashes autonomous vehicles cause is an open and hotly debated question.

Most tort scholars approach this question by asking what liability rule is most likely to achieve the desired policy outcome: promoting the adoption of this lifesaving technology without destroying manufacturers’ incentives to optimize it. This approach has led to a wide range of proposals, many of which suggest replacing standard rules of products liability with some new system crafted specifically for autonomous vehicles and creating immunity or absolute liability or something in between.

But, I argue, the relative safety of autonomous vehicles should not be relevant in determining whether and in what ways manufacturers are held liable for their crashes. The history of products liability litigation over motor vehicle design shows that the tort system has been hesitant to indulge in such comparisons, as it generally declines both to impose liability on older, more dangerous cars simply because they lack the latest safety features and to grant immunity to newer, safer cars simply because of their superior aggregate performance. These are instances in which products liability law fails to promote efficient outcomes and instead provides redress for those who have been wronged by defective products.

Applying these ideas to the four fatalities that have so far been caused by autonomous vehicles suggests that just as conventional vehicles should not be considered defective in relying on a human driver, autonomous vehicles should not be immune when their defects cause injury.

September 25, 2019 in Scholarship | Permalink | Comments (0)

Friday, September 20, 2019

Sugarman and Boucher on Re-Imagining the Dignitary Torts

Stephen Sugarman & Caitlin Boucher have posted to SSRN Re-Imagining the Dignitary Torts.  The abstract provides:

Tort law is cluttered with different causes of action that permit financial recovery for emotional harms arising from what we call wrongful affronts to human dignity. These include the common law torts of offensive battery, assault, false imprisonment, privacy invasion, defamation, some nuisance claims, and the more broadly labeled actions for intentional and negligent infliction of emotional distress. We don’t need all this clutter. Plus, simplifying our approach to dignitary harm would eliminate unjustified inconsistencies found in this group of torts. This article paves the way for a more coherent approach to the protection of personal dignity.

September 20, 2019 in Scholarship | Permalink | Comments (0)

Thursday, September 19, 2019

Goudkamp & Nolan on The Story of Tort Scholarship

James Goudkamp and Donal Nolan have posted to SSRN Pioneers, Consolidators and Iconoclasts:  The Story of Tort Scholarship, the introduction to Scholars of Tort Law.  The abstract provides:

Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.

September 19, 2019 in Books, Conferences, Scholarship, TortsProfs | Permalink | Comments (0)