Tuesday, January 31, 2023
Michael Smith has posted to SSRN Idaho's Law of Seduction. The abstract provides:
Seduction is a historical cause of action that permitted women’s fathers to bring suit on their daughters’ behalf in sexual assault and rape cases. This tort emerged long ago when law’s refusal to recognize women’s agency made this the only means of recovering damages in these cases. As time went on, women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could therefore be easily forgiven for thinking that such an archaic tort still exists under Idaho law.
But one would be wrong. This article argues that despite the Idaho Supreme Court’s abolition of the “heartbalm” torts of alienation of affections (a plaintiff suing a person who enticed their spouse to end a marriage) and criminal conversation (a plaintiff suing someone who had sex with their spouse), the tort of seduction lives on. Seduction is based in statutes dating back to before Idaho became a state. This means that as much as Idaho’s Supreme Court has critiqued heartbalm torts for being outdated and prone to abuse, these reasons are insufficient for the court to abolish the statute-based tort of seduction.
While seduction is still good law in Idaho, this Article explores whether this a good thing. The gendered language of Idaho’s seduction statutes renders them vulnerable to an equal protection challenge. And the existence of alternate causes of action to seek recovery for sexual harassment, sexual assault, and rape now perform the damage-recovery function that seduction used to address. This Article make the case for the factual existence of Idaho’s law of seduction for the purpose of revealing the many shortcomings with this law, concluding that while Idaho’s tort of seduction continues to exist, perhaps it shouldn’t be long for this world.
Wednesday, January 18, 2023
Melissa Jacoby has posted to SSRN Sorting Bugs and Features of Mass Tort Bankruptcy. The abstract provides:
In 1997, after two years of study, the National Bankruptcy Review Commission recognized bankruptcy’s potential as a forum to address mass tort problems, but emphasized that Congress needed to do much more to ensure due process, address major risks of under-compensation and inconsistent compensation of future injured parties, and address uncertainty about the lawfulness of these cases. United States Supreme Court cases invalidating particular limited-fund class actions raised the stakes, casting doubt on certain bankruptcy practices.
Congress adopted neither the commission's proposals nor others on the topic. Mass tort bankruptcy practice continued without legislative clarifications or improvements, culminating in recent high-profile and controversial cases like Purdue Pharma, Boy Scouts of America, LTL (Johnson and Johnson's bankruptcy to cut off ovarian cancer and mesothelioma patients’ access to the civil justice system regarding talc-related claims) and Aearo Technologies (3M's bankruptcy that aspired to stop multidistrict litigation over allegedly faulty earplugs).
Revisiting earlier reform discussions helps reveal how much bugs rather than features drive these kinds of mass tort bankruptcies. Lawyers and defendants (and perhaps some plaintiffs lawyers) gravitate to bankruptcy to do extraordinary things that have weak statutory and constitutional support and are in tension with principles of due process, not to mention federalism and separation of powers. The design of mass tort bankruptcies also tends to blunt the effective operation of standard chapter 11 protections meant to empower individual creditors – tools that often are cited as making bankruptcy “better” for mass tort than other aggregate litigation fora. The analysis in this draft article invites skepticism about whether the system can credibly and constitutionally deliver the level of global resolution that debtors and their co-defendants demand.
Tuesday, January 17, 2023
Chunyan Ding & Zhi Pe have posted to SSRN An Empirical Study of Pain and Suffering Awards in Chinese Personal Injury Cases. The abstract provides:
Drawing on 1,882 personal injury lawsuits involving medical negligence, this study presents the first empirical analysis of pain and suffering awards given by Chinese judges in the real-world setting of personal injury litigation. It investigates when judges refuse to award pain and suffering damages in personal injury cases, and whether the relevant guiding factors suggested by the Supreme People’s Court have a significant influence on award amounts of pain and suffering damages, as well as whether the deep pockets effect and the anchoring effect exist in Chinese personal injury litigation. We find that Chinese judges are more likely to refuse to award pain and suffering damages in cases where the plaintiff suffers minor injuries and a lesser amount of economic damages and where the plaintiff has not claimed pain and suffering damages. We further uncover that the injury severity, the economic damages and the causal contribution of the defendant’s negligence have a significant and positive influence on award amounts of pain and suffering damages in personal injury litigation. However, this study does not find any evidence supporting the deep pockets effect and the anchoring effect in Chinese personal injury lawsuits.
Monday, January 16, 2023
Oxford University Press is pleased to announce a call for papers for volume three of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers).
Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory. The series publishes 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 *updated* deadline for submission is Feburary 28th, 2023.
All accepted papers will be presented at a workshop at the Max Planck Insitute for Comparative and International Private Law in Hamburg, June 30-July 1, 2023. The Notre Dame Program on Private Law and the Max Planck Institute will cover the expense of contributors’ travel and accommodation.
Please send submissions to both Paul Miller (paul dot miller at nd dot edu) and John Oberdiek (oberdiek at rutgers dot edu).
The full announcement is here.
Friday, January 13, 2023
Late last month, Greg Keating published his new book, Reasonableness and Risk: Right and Responsibility in the Law of Torts. The blurb provides:
The law of torts is concerned with what we owe to one another in the way of obligations not to interfere with, or impair, each other's urgent interests as we go about our lives in civil society. The most influential contemporary account of tort law treats tort liability rules as shadow prices. Their role is not to vindicate claimants' own rights and interests, but to induce us to injure one another only when it is economically efficient to do so. The chief competitors to the economic view take tort law's importance to lie primarily in the duties of repair that it imposes on wrongdoers, or in the powers of recourse that it confers on the victims of tortious wrongs.
This book argues that tort law's primary obligations address a domain of basic justice and that its rhetoric of reasonableness implies a distinctive morality of mutual right and responsibility. Modern tort law is preoccupied with, and responds to, the special moral significance of harm. That special significance sometimes justifies standards of precaution more stringent than those prescribed by efficiency. This book also examines the regulatory and administrative institutions with which the common law of torts cooperates and competes, treating these as part of a continuum of institutions that instantiate the primary role pursued by modern tort law - that is, to protect our physical integrity and other essential interests from impairment and interference by others, and to do so terms that all those affected might accept as justifiable.
Thursday, January 12, 2023
Alexandra Lahav has posted to SSRN A Revisionist History of Products Liability. The abstract provides:
Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law — that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods — is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.
Wednesday, January 4, 2023
Donal Nolan has posted to SSRN Negligence and Autonomy. The abstract provides:
The complex relationship between negligence and autonomy is of increasing practical and theoretical interest, as is shown by recent cases such as Montgomery v Lanarkshire Health Board  UKSC 11, Shaw v Kovac  EWCA Civ 1028 and ACB v Thomson Medical Pte Ltd  SGCA 20. My discussion of this relationship divides into three parts. In the first part, I make some general observations about the relationship between negligence law and autonomy. In the second part, I argue that interference with autonomy per se should not be recognised as a form of damage that grounds a negligence claim, although I acknowledge that it may be useful for the law to recognise specific forms of autonomy loss as damage in this sense. And in the third and final part, I consider the uneasy relationship between negligence doctrine and patient autonomy in the law of liability for medical non-disclosure, and argue that as a result of recent developments this may no longer be properly described as liability for negligence.
Thursday, December 29, 2022
Gregory Parks & Ryan McKee have posted to SSRN Civil Liability and Intra-Fraternal, Sexually Predatory Behavior. The abstract provides:
Sexual assault has been a critical issue within college fraternities. While the typical victims have been collegiate young women, some victims have been collegiate young men. That includes other college fraternity members. The conduct may include force, drugging, plying with alcohol, coercion, grooming, and quid pro quo arrangements. Power imbalances—e.g., hazing, dynamics between college and alumni members—may exacerbate the issue. This terrain, often unspoken and unacknowledged, is a difficult one for college fraternities to navigate from a moral and liability standpoint. In recent decades, sexual predator issues have bedeviled organizations like the Catholic Church, Boy Scouts of America, and Pennsylvania State University’s football program. Crucial missteps that these organizations made in dealing with sexual predators within their ranks parallel those that collegiate fraternities make. Ignoring the culture of predatory behavior, sweeping specific incidents under the rug, only dealing with the issue internally, and not holding powerful perpetrators and enablers accountable can create civil liability for organizations. Homophobia often leads organization members astray, leading them to assume that "openly" gay or bisexual members engage in more sexually predatory behavior than heterosexual members. However, that assumption is inconsistent with the research literature. Additionally, organizations that try to deal with this issue may fail to provide alleged perpetrators with the appropriate due process resulting in other forms of civil liability—i.e., defamation. As such, this manuscript highlights the difficulty and necessity of tackling this issue.
Tuesday, December 27, 2022
Donal Nolan & James Plunkett have posted to SSRN Keeping Negligence Simple. The abstract provides:
In this case note, we consider the UK Supreme Court decision in Meadows v Khan  UKSC 21,  AC 852, which concerned the scope of the duty of care that a GP owed to a patient who was a carrier of the haemophilia gene. Although we agree with the decision in the case, we argue that the approach of the majority Justices was unnecessarily complex, and that the issue should have been dealt with as a question of remoteness rather than duty. We also subject the majority’s six-part ‘roadmap’ for negligence cases to critical review, and conclude that it is likely to obfuscate rather than illuminate.
Monday, December 26, 2022
Donal Nolan has posted to SSRN Tort and Regulation. The abstract provides:
In this paper I consider the many and varied ways in which the law of tort interacts with regulatory law (by which I mean mandatory regulatory norms, rather than voluntary codes of practice and the like). Examples of these interactions include (1) the indirect influence of regulatory norms on substantive tort law, whereby for example regulatory norms inform decisions on breach of duty in negligence or substantial interference in private nuisance; (2) the more direct influence of regulatory norms on tort via mechanisms such as a tort of breach of statutory duty, a doctrine of negligence per se, a regulatory compliance defence or a rule of regulatory pre-emption; and (3) various other forms of potential or actual interaction. Although I draw on all areas of tort law in the paper, my particular focus is on the law of negligence, the law of private nuisance and the law of product liability. The overall message of the paper is twofold: first, that the relationship between tort and regulation is complex and multifaceted; and second, that as a matter of general principle tort law should not automatically defer to regulatory norms and outcomes but should instead incorporate them into its own analytical frameworks.
Thursday, December 22, 2022
Torts profs are heavily represented. From the letter by NCJI President, Christopher Nace:
The Officers and Trustees of the National Civil Justice Institute are proud to bestow the Institute’s 2023 Civil Justice Scholarship Award to Professor John C. P. Goldberg (Harvard Law School), Professor Benjamin Zipursky (Fordham Law School), and Professor Diego A. Zambrano (Stanford Law School).
It is our distinct privilege to honor Professor Goldberg and Professor Zipursky for their book, Recognizing Wrongs (Harvard University Press, 2020), in which they explain how their “civil recourse” concept makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity.
We are also privileged to honor Professor Zambrano for his article, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101 (2019), in which he explores how federal expansion may be contributing to the decay of state courts and has reinforced a plaintiff-defendant divergence between the two systems.
Finally, the Institute also recognizes with High Distinction Professor Jonathan Cardi (Wake Forest University School of Law), Professor Valerie Hans (Cornell Law School), and Professor Gregory Parks (Wake Forest University School of Law) for their article, Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases, 93 So. Cal. L. Rev. 507 (2020). After conducting one of the first comprehensive experimental examinations of how race affects judgments on personal injuries, the authors found that the dollar awards for the injuries suffered by black plaintiffs in hypothetical cases were lower than awards for the same injuries experienced by white plaintiffs.
We are very proud to recognize this important legal scholarship, and the academics responsible.
Wednesday, December 21, 2022
Greg Keating has posted to SSRN Irreparable Injury and the Limits of the Law of Torts. The abstract provides:
Tort law safeguards security by requiring reparation for harm wrongly done. The fact that reparation is the institution’s default remedy limits tort law’s powers. Some harms are simply irreparable. Death is the most vivid case in point. No amount, or form, of compensation can restore the dead to the lives they have lost. No remedy can return them to the position that they would have occupied had they not died. Faced with this stark truth early modern tort law did not award any damages for wrongful death and contemporary tort law still stops short of awarding damages for the value to those who are wrongly killed of the lives that they have lost. Wrongful death doctrine exposes tort law’s Achilles’ heel. On the one hand, premature death is the harm that we most wish to be protected against. On the other hand, premature death is the harm against which tort law is least able to protect us. Tort law relies on reparation to enforce its obligations, both prospectively and retrospectively. Tort fails prospectively because it does not price, and therefore does not deter, the harm of wrongful death. It fails retrospectively because money damages cannot udo the harm of death. Direct regulation of risk is required to remedy the incompleteness of tort law. This chapter examines the two most relevant regulatory norms—the “safe level” and “feasibility” standards— against the background of tort law’s limitations.
Monday, December 19, 2022
Tim Lytton has posted to SSRN Private Third-Party Verification of Product Claims: Lessons from Kosher Certification. The abstract provides:
Food consumers often desire products with attributes that are not discernable from a product’s appearance. Unscrupulous sellers may be tempted to misrepresent the presence of these “credence qualities.” In response, reputable sellers wishing to distinguish truthful product claims from spurious ones can provide verification using third-party certification. Third-party certification marks on product labels attesting to a wide variety of credence qualities are now commonplace. This chapter analyzes the global system of kosher food certification to develop a general model of reliable third-party verification of credence qualities.
Monday, November 28, 2022
Friday, November 18, 2022
Rebecca Crootof has posted to SSRN Implementing War Torts. The abstract provides:
Under the law of armed conflict, no entity is accountable for lawful acts in war that cause harm, and accountability mechanisms for unlawful acts (like war crimes) rarely create a right to compensation for victims. Accordingly, states now regularly create bespoke institutions, like the proposed International Claims Commission for Ukraine, to resolve mass claims associated with international crises. While helpful for specific and politically popular populations, these one-off institutions have limited jurisdiction and thus limited effect. Creating an international “war torts” regime—which would establish route to compensation for civilians harmed in armed conflict—would better address this accountability gap for all wartime victims.
This Article is the first attempt to map out the questions and considerations that must be navigated to construct a war torts regime. With the overarching aim of increasing the likelihood of victim compensation, it considers (1) the respective benefits of international tribunals, claims commissions, victims’ funds, domestic courts, and hybrid systems as institutional homes; (2) appropriate claimants and defendants; and (3) the elements of a war torts claim, including the necessary level and type of harm, the preferable liability and causation standards, possible substantive and procedural affirmative defenses, and potential remedies.
Domestic law has long recognized that justice often requires a tort remedy as well as criminal liability; it is past time for international law to do so as well. By describing how to begin implementing a new war torts regime to complement the law of state responsibility and international criminal law, this Article provides a blueprint for building a comprehensive accountability legal regime for all civilian harms in armed conflict.
Wednesday, November 9, 2022
Heled, Levin, Lytton, & Vertinsky on a Statutory Tort Solution to the Reproductive Wrong of Misrepresentation
Yaniv Heled, Hillel Levin, Tim Lytton & Liza Vertinsky have posted to SSRN Righting a Reproductive Wrong: A Statutory Tort Solution to Misrepresentation by Reproductive Tissue Providers. The abstract provides:
Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.
This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring tort claims, we aim to jump-start more effective government oversight and industry self-regulation. The proposed legislation is also responsive to political dynamics surrounding the abortion debate and, thus, stands a better chance of adoption than have prior proposals.
Friday, November 4, 2022
Andrew Gold & Henry Smith have posted to SSRN Restatements and the Common Law. The abstract provides:
Restatements interact with the common law in multiple ways. Restatements reflect the common law, but they also may do much more; for example, they may accelerate legal reform, and they may freeze the law in place. This chapter considers ways that Restatements can address a concern that Justice Cardozo emphasized: the need for a balance between certainty and flexibility. With that in mind, a central concern is the way that the common law operates as a complex system. The system of the common law is a hybrid of a spontaneous and a made order; it is also, potentially, a loosely connected system rather than the kind of deductive system that some formalists imagine. Taking these features into account, we argue that a key consideration in the drafting of Restatements should be the architecture of the common law, including its conceptual structure. Restatements can seek an “architectural fit,” and in doing so they can strike a workable balance between certainty and flexibility.
Wednesday, November 2, 2022
Andrew Robertson has posted to SSRN Justifying Liabilities and Duties. The abstract provides:
This chapter argues that a thorough consideration of the justifications for the law of obligations requires close attention to liability and duties in addition to rights. Liability provides an important frame of reference for any justificatory exercise in the law of obligations, for two reasons. The first is that, historically and as a matter of practice, the common law of obligations begins with, and focuses primarily on, liability rather than rights and duties. While it is possible, through careful study, to identify rights and duties in the common law, the common law is not imposed on us through the announcement of general rights or duties. The common law is explicated through judgments, and in private law cases those judgments mostly take the form of justifying liability or justifying the denial of liability. A focus on liability as a justificatory frame of reference reminds us of the context in which rights, duties and liabilities are identified, explicated, developed and enforced. It also reminds us of the role of the state and the interaction between the public interest, the goal of promoting social harmony and the conventional morality that underlies the law of obligations.
A second reason to consider liability as a frame of reference is that important questions of justification arise in relation to primary liabilities. Those questions will be left out of account in an analysis that focuses exclusively on rights and duties. This chapter uses the examples of equitable estoppel and the right to performance of a contractual promise to explore the difficulty that is encountered in determining the existence and significance of rights in the common law of obligations, and the difficulty that is encountered in drawing the boundary between right/duty relationships and liability/power relationships. The chapter sketches some ideas about possible justifications for two particularly controversial forms of primary liability: vicarious liability and equitable estoppel. The final part of the paper discusses the need to take account of duties in the analysis of justification in private law. The duty perspective raises the idea of behaviour guidance as a possible justification of the common law of obligations. In order to understand why private law cannot be seen as a set of ‘guidance rules’, we need to turn to the relationship between duties, rights and liability. The paper therefore concludes that a full understanding of justification can only be gained by taking account of liabilities, duties, and rights.
Monday, October 31, 2022
Wednesday, October 26, 2022
Phil Goldberg has published, in Mealey's Personal Injury Report, Is Today's Attempt at a Public Nuisance "Super Tort" The Emperor's New Clothes of Modern Litigation? Download Goldberg Public Nuisance Trends in Mealey's (1)