TortsProf Blog

Sebok on Damages

Tony Sebok has posted to SSRN his presentation from last year's symposium at Southwestern, Damages:  Symposium Presentation of Anthony Sebok.  The abstract provides:

Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm §27 adopts the "Anderson Rule," stating that a simultaneous sufficient cause does not prevent a tortious actor from being considered a cause-in-fact and thus potentially liable for the harm caused. However, Comment d of §27 reserves the issue of apportioning liability among sufficient tortious causes for a later section.

Restatement of the Law Third, Torts: Remedies §12 addresses this reserved issue, offering the following: (1) When a tortious cause and another tortious cause simultaneously cause harm, both are liable for all or part of the damages. (2) When a tortious cause and a non-tortious cause simultaneously cause harm, the Restatement does not take a position on liability. (3) When a tortious cause precedes a non-tortious cause that would have caused the same harm, the tortious cause is not liable for damages that would have occurred anyway. (4) When a tortious cause precedes another tortious cause that would have caused the same harm, the first tortious cause is liable for the damages.

In this transcript of a Southwestern Law School conference presentation on the Restatement of the Law Third, Torts, I argue that point (2) is inconsistent with points (1) and (4). If a tortious cause can be liable for damages even when harm would have occurred from another tortious cause (1), and is not liable when a subsequent natural cause would have caused the same harm (4), then (2) is contradictory. It doesn’t make sense to exempt a tortious cause from liability just because a prior tortious cause also contributed to the harm. If points (1) and (4) are correct, then point (2) fails to account for the moral responsibility of the tortious cause, regardless of the sequence of events.

Roberts & Richardson on Privacy, Punishment and Private Law

Andrew Roberts and Megan Richardson have posted to SSRN Privacy, Punishment and Private Law.  The abstract provides:

While private law has developed various causes of action for breach of privacy, the criminal law has seldom used the concept of privacy in defining its proscriptions. There is no recognised category of ‘privacy crimes’. But new technologies are posing ever more serious threats to our privacy. On the one hand, this has led to a ‘ramping up’ of privacy law protections, including a tort of misuse of private information recognised by UK courts (and explicit reliance on a broadly construed doctrine of breach of confidence for the protection of privacy in Australia). At the same time, there is a growing appreciation that privacy is a collective and social good, not only an individual good, and that some breaches of privacy affect large numbers of people and constitute serious public harms. In this chapter we suggest that as the law of privacy generally tilts more towards the public interest side, greater thought should be given to the benefits of including a punitive element in privacy cases that still ostensibly fit within the rubric of private law (or a data protection regime, or both together) but involve significant public harms. However, there is still a need to reconcile this position with the basic tenet of criminal law that that law, along with all its traditional protections, should be employed as the primary means of dealing with cases of egregiously wrongful conduct that results in serious harm. Specifically, the question we address concerns the role that private law ought to play in punishing breaches of privacy.

JOTWELL Torts: Robinette on Keating on Tort Theory

At JOTWELL, I review Greg Keating's excellent book, Reasonableness and Risk.

Hasen on the Irreparable Injury Rule

Richard Hasen has posted to SSRN Reckoning with the Undead Irreparable Injury Rule.  The abstract provides:

This article is written for a festschrift honoring the scholarship of Professor Douglas Laycock. In his most important work in the field of Remedies, The Death of the Irreparable Injury Rule, Laycock made and supported a strong positive claim about the “irreparable injury” rule. He argued that the rule purportedly governing a court’s choice between granting an injunction at the time of final judgment and awarding damages to a wronged plaintiff did no actual work. Laycock also made a compelling normative case for jettisoning the rule.

More than three decades later, the irreparable injury rule is stubbornly undead. Like a cinematic zombie that is not alive but can still do harm, the rule continues to do no work but courts go through the motions of asking about irreparable injury when deciding whether or not to grant a permanent injunction at the end of a case. Such reasoning creates confusion in the law and perpetuates a fuzziness of reasoning that Laycock rightly finds intolerable. Yet no court has formally abandoned the rule. Indeed, the United States Supreme Court in the 2006 eBay case not only endorsed the irreparable injury rule’s application to permanent injunctions; it did so in a confusing and oddly duplicative way, having bad repercussions throughout the federal judiciary.

Part I briefly describes Laycock’s argument about the irreparable injury rule and its reception in the courts. Part II considers and critiques the key arguments for retaining the irreparable injury rule, describing the dangers of unbridled judicial discretion and fuzzy thinking. Part III explains the approach of the Restatement (Third) of Torts: Remedies and its potential to make the irreparable injury rule less relevant.

Kutner on Truth in Defamation

Peter Kutner has posted to SSRN Truth in the Law of Defamation.  The abstract provides:

This article identifies and examines important aspects of truth as a defence to defamation liability in common law and "mixed" legal systems. These include the fundamental issue of what must be true to establish the defence, whether the defendant continues to have the burden of proving that a defamatory communication is true, the condition that publication must be for the public benefit or in the public interest, "contextual truth" ("incremental harm"), and the possibility of constitutional law rules on truth that are different than common law rules. The discussion includes the emergence of differences among national legal systems in the operation of the truth defence and evaluation of the positions that have been adopted.

Sebok on Twerski

Tony Sebok has posted to SSRN Aaron Twerski:  Practical Wisdom at Ground Zero.  The abstract provides:

This Article celebrates Professor Aaron Twerski's "practical wisdom" in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund ("VCF") despite there being every reason to suspect that the interaction of workers' compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings-expressed decades earlier-about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed by workers' compensation while shifting the cost of their own carelessness onto third parties, Professor Twerski devised a settlement that, in effect, did exactly that. This Article explains how the settlement achieved a certain degree of justice by permitting prudence to prevail over principle.

Rustad & Hert on Global Product Liability for Smart Home Devices

Mike Rustad & Layth Hert have posted to SSRN Global Product Liability for Dumb 'Smart' Home Devices.  The abstract provides:

The number of smart homes globally has increased to 300 million, and the smart home market is expected to reach approximately $181.4 billion by 2025. These new developments, however, are accompanied by related security risks. The attack surface for smart home devices poses latent dangers because of inadequate security that enables cybercriminals to gain access to such devices. This Article proposes extending product liability to address security vulnerabilities in smart home devices. Part I examines the ubiquity of smart home devices. Part II sets forth the breadth of security vulnerabilities in connected devices, confirming the need to clarify that product liability applies to software and to create a global standard that reduces compliance costs for smart home device makers. Part III develops a detailed global standard for smart home device product liability, aligning U.S. product liability law with the proposed revision of the European Union’s Product Liability Directive 85/374/EEC.

Swan Publishes Plaintiff Police

Sarah Swan has posted to SSRN Plaintiff Police, the piece she presented this spring in the Tort Law and Social Equality Project speaker series.  The abstract provides:

In civil litigation, police officers typically occupy the role of defendant, responding to claims of misconduct like excessive force, unlawful arrest, or discriminatory policing. Lately, however, police officers have increasingly been taking on a different litigative role: that of plaintiff. In the wake of the Black Lives Matter protests and the corresponding attention to continuing practices of police violence, police officers are now quite frequently suing the people they police. These tort suits allege all sorts of harms, including physical injuries from confrontations, emotional harms from “being forced” to inflict violence on others, and defamation and privacy harms said to flow from complaints of misconduct. As a small sampling, the police officers who conducted a botched search of rapper Afroman’s residence sued him for defamation when he put video recordings of their actions into his music videos; multiple officers have sued Black Lives Matter protestors for physical and emotional injuries resulting from the ensuing clashes; an officer who shot Breonna Taylor sued her boyfriend for shooting at them when they burst into her apartment unannounced; and a Chicago officer who shot and killed a mentally ill teenager and his kindly neighbor sued the teenager’s family for creating the scenario that “forced” the officer to shoot them. 

These plaintiff police lawsuits have profound practical and political significance, and this Article is the first to uncover and analyze this litigative phenomenon. These suits bring core and fundamental principles of justice into serious tension: on the one hand, the idea of open courts and the right to petition for redress of grievances are prized properties of the American legal system, and all who receive injuries through wrongful means—including police officers—deserve to seek compensation and deterrence. On the other hand, these plaintiff police lawsuits inflict a plethora of harms. They exacerbate the power imbalance between the police and those who are policed; they have a demonstrable and measurable chilling effect on political participation; they add to the mismatch in accountability where citizens are generally unable to successfully sue police because of procedural and doctrinal hurdles yet police have great ability to successfully sue them; and they constitute a distinct democratic harm that degrades the relationship between the citizenry and local governments in deeply troubling ways. Ultimately, this Article argues that the competing values of democracy, political participation, compensation, and deterrence are best served by disallowing plaintiff police suits in all but a very narrow set of circumstances, and offers a feasible framework for implementing this reform.

Stone on Keating on Duty

Rebecca Stone has posted to SSRN Who are the Bearers of Tort Law's Duties?.  The abstract provides:

Like corrective justice theorists, Gregory Keating contends that tort law is centrally concerned with the vindication of individual rights. Like economic theorists, he rejects the idea that individual injurers are the inevitable site of tort duties. While some tort doctrines instantiate relational rights and duties, others instantiate collective duties to potential victims. There is thus a deep continuity between tort law and administrative law according to Keating. Is such a conception of tort law compatible with a principled commitment to deontological morality or will it inevitably devolve into a utilitarianism of rights where tort rights and duties are merely instrumentally justified as mechanisms for the protection of individual rights against harm? I will argue that at least some of the institutional heterogeneity that Keating highlights and defends can be a principled entailment of deontological theorizing, if we move away from an understanding of torts as wrongs to a view of tort law as a site of deliberation about what justice between the parties requires in the face of normative uncertainty about justice.

JOTWELL Health Law: Sawicki on Fox & Lens on Valuing Reproductive Loss

At JOTWELL, Nadia Sawicki reviews Dov Fox and Jill Wieber Lens's Valuing Reproductive Loss.

Keating on the Restatement Third of Torts: Products Liability

Greg Keating has posted to SSRN a piece he presented at Southwestern law year, Is the Restatement of Design Defect a Defective Product?.  The abstract provides:

The American Law Institute’s Restatements of the Law present themselves as attempts to summarize and organize existing case law; to provide the most sensible and persuasive justifications for extant doctrine; and to state the law as it is in an intellectually coherent way. Restatements purport to reshape the law only by organizing and clarifying it, thereby “working it pure.” The justification for restating—not remaking—the law is evident enough. The American Law Institute is neither a legislature nor a common law court. The only authority that the Institute can claim is the authority of the law that it restates. But because Restatements are committed to the enterprise of restating law, they must often confront a basic predicament. How do you extract the law from the decisions of courts when those courts are deeply divided over the matters that you are restating? The problem is vividly illustrated by the Restatement, Third of Products Liability’s treatment of design defect. On its surface, the law that the Third Restatement restated was (and is still) sharply divided between two tests of design defect, namely, the risk-utility and consumer expectation tests. Beneath the surface, the law was (and is still) divided between negligence and enterprise liability conceptions of responsibility. Faced with deeply divided law, the Third Restatement embraced a negligence conception of the basis of design defect liability, and a single risk-utility test as the doctrinal expression of that conception. Unpersuasively—and unsuccessfully, too—the Restatement, Third presented that choice as a summarization of existing law, not as a normatively driven decision to prefer one possible product liability regime over another. Consequently, the Third Restatement of design defect is a defective incarnation of the basic Restatement project. Its failure invites us to ask if the Restatement project can succeed in the face of conflicting case law, and if we can imagine Restatements pursuing a different project. Might Restatements frankly acknowledge and illuminate conflicts in our law? Rather than claiming that the law speaks with a single voice when it does not, might Restatements work pure the competing voices of our law by presenting them to us in their most compelling and coherent incarnations? 

Solove on a Regulatory Roadmap to AI and Privacy

Daniel Solove has posted to SSRN A Regulatory Roadmap to AI and Privacy.  The abstract provides:

This short essay provides a regulatory roadmap to artificial intelligence and privacy. AI and privacy are deeply intertwined and have a complicated relationship with much overlap. AI can increase existing privacy problems, add dimensions and complexities to them, or remix them.

Some attempts to regulate focus exclusively on AI, but doing this is like trying to remove weeds without digging up their roots. In stark ways, AI is showing the flaws in existing privacy laws. Instead of seeing AI as a unique situation, AI should be viewed as an opportunity to change course with privacy law generally. To address AI’s privacy problems, policymakers shouldn’t just pass new AI laws; they should also fix existing privacy laws.

This essay briefly discusses the privacy problems raised by AI and how privacy law should be reformed to respond to these problems.

JOTWELL Torts: Bernstein on Keren on Market Humiliation

At JOTWELL, Anita Bernstein reviews two related pieces by my colleague, Hila Keren, Market Humiliation and Beyond Discrimination:  Market Humiliation and Private Law.

Avraham, Sebok & Shepherd Analyze the Regulation of Litigant Third-Party Financing

Ronen Avraham, Tony Sebok, and Joanna Shepherd have posted to SSRN The Whac-A-Mole Game:  An Empirical Analysis of the Regulation of Litigant Third Party Financing.  The abstract provides:

Using a unique private dataset from one of the largest consumer litigation financing firms in the U.S., we are the first to explore the impact of states' regulatory activity (statutory or judicial) on funders' behavior and consumers' welfare. Our comprehensive dataset includes data on over 105,000 third party funding agreements from 2000 throughout 2020 and data we compiled ourselves from court decisions, state legislation, and regulatory actions.

Two by Bernstein

Anita Bernstein has posted two pieces to SSRN.  First, Privity 2.0 May Be Even Better for Tort Defendants.  The abstract provides:

Privity reinvigorated in the current century comes with a few tradeoffs, to be sure. It does not have the pre-MacPherson sweeping power to vaporize an unwanted complaint, especially one alleging physical injury, but in some respects it is more useful for entities that line up on Team Defendant. If pre-MacPherson privity had been a citadel looming large and fierce on the horizon, twenty-first century privity is an electric fence. Or, to continue down the lane of metaphor, the contemporary version of privity, called Privity 2.0 in this Article, is software code slipped into a machine at the apparent initiative, but without any conscious acceptance, of the person who gets blocked by this barrier. Affecting an air of liberal enlightenment, Privity 2.0 acknowledges that duty of care is the norm and tort immunity the exception. Of course a person or business engaged in an activity that risks physical injury when done carelessly owes care to foreseeable plaintiffs. Of course injured persons may seek damages in court. Right to jury trial? Of course. Does a plaintiff need a contractual relation with the defendant to bring a tort action? Of course not! American tort law celebrated the MacPherson centenary years ago. This revision of duty understands human beings to have an entitlement to integrity-integrity of their bodies very much included-and a correlative right to tort redress when they suffer a wrong. Instead of casting injured persons as strangers to the defendant, invisible to it and unworthy of its regard, Privity 2.0 celebrates their freedom by purporting to honor the deals they made. Privity back in the day had told injured individuals they lacked a credential necessary for relief. They weren't good enough to deserve ordinary care. Because rich people have always enjoyed an enlarged share of contract rights and remedies comparable to the enlarged share of cash they also enjoy, the application of privity that defeated nineteenth-century plaintiffs pushed the same button that makes people feel ashamed of being poor. Twenty-first century privity, the spelled-out kind, dishes out no humiliation to anyone for lacking wealth. Quite the contrary. It celebrates the strength of ordinary persons to read at a high level, exercise choice, negotiate, and focus on their interests. Aided by the insights of microeconomics-a discipline that had no overt influence on law in the old privity era-privity as revived can even say why it isn't necessarily perverse to renounce one's remedies.

Second, Rape is Trespass.  The abstract provides:

By furnishing new blackletter on battery, assault, and false imprisonment, Restatement (Third) of Torts: Intentional Torts to Persons provides illustrations of what the medieval writ of Trespass once remedied. All three causes of action restated in this Restatement derive from the trespass writ, as do other modern doctrines that fall under intentional torts to persons. This article, hewing to the tradition that the law of trespass provides redress for direct, unmediated, and wrongful boundary-crossing, argues that sexual penetration unwanted by the person penetrated is trespass. If rape is trespass, then consequences follow for the law of torts as well as crimes.

Defamation Articles in the Journal of Free Speech Law

Jeff Helmreich, Ken Simons, and Ben Zipursky have published articles on defamation in the Journal of Free Speech Law.

Two by Lens

TortsProf Jill Wieber Lens (headed to Iowa) has gotten some nice attention at JOTWELL recently.  First, Philomila Tsoukala reviewed her piece (co-authored with Dov Fox), Valuing Reproductive Loss.  Second, Rebecca Zietlow reviewed her Fetal Life Hypocrisies (unpublished draft).

Restatement of Medical Malpractice is Approved

On Tuesday, the membership of the ALI voted to approve the Restatement (Third) of Torts:  Medical Malpractice.  The ALI's announcement is here.  Congratulations to the Reporters, Nora, Mike, and Mark!

Freeman on Blankfein-Tabachnick & Kordana on Rawlsian Contractualism and Private Law

Samuel Freeman has published A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law.  The abstract provides:

In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private law, including not just property and contract law, but also torts. In recent papers, Samuel Scheffler and I have made similar arguments, though we have modestly departed from their views.  I contend that, while the difference principle applies to much of the private law of property and contract, it does not apply to all tort law. Rather, in tort law, the difference principle applies primarily to economic torts in unjust economic systems that do not satisfy Rawls’s difference principle in the first place. Blankfein-Tabachnick and Kordana (hereinafter “the Authors”) contest my argument, as well as my contention that Rawls’s difference principle requires maximizing the position of society’s less advantaged relative to the more advantaged, not their absolute position. After a brief summary of my position, I discuss why I believe the difference principle, under Rawls’s final interpretation of it, is often not suitable for consistent application in determining personal tort liability and remedies, even though the principle can play a significant role in economic torts involving the violation of economic rights and liberties. I also discuss why the difference principle is best understood to require society to maximize the relative, not absolute, position of the least advantaged. I conclude with some remarks on Rawls’s own reservations regarding courts’ interpretation and enforcement of the difference principle, or any principle that structures the economy, including economic efficiency and utilitarian wealth maximization.

Goldberg & Trask on No-Injury and Piggyback Class Actions

Phil Goldberg & Andrew Trask have published No-Injury and Piggyback Class Actions:  When Product-Defect Class Actions Do Not Benefit Consumers.  The abstract provides:

Class counsel are more frequently filing product-based class actions that, whether
successful or not, offer few practical benefits to real consumers or class members.
These no-benefit class actions cause the unnecessary expense of the courts’ time and
resources, and they often fail to provide actual value to class members while still
producing substantial attorneys’ fees. This article explores why strategic vagueness in
plaintiffs’ filings and a lack of vigorous analysis by the courts have allowed no-benefit
class actions to unnecessarily consume court resources. The article concludes by
offering suggestions for how courts can alleviate some of this pressure, primarily by
requiring judges to follow and enforce Federal Rules of Civil Procedure Rule 23(b)(3)
as the rule was written and intended.