Monday, May 16, 2022
Cathy Sharkey has posted two pieces to SSRN. First, Common Law Tort as a Transitional Regulatory Regime: A New Perspective on Climate Change Litigation. The abstract provides:
This book chapter explores how common law (state or federal) tort law evolves to fill regulatory voids. Particularly in areas that pose emerging, and incompletely understood, health and safety risks, common law tort liability holds out the potential for a dynamic regulatory response, one that creates incentives to develop additional information about potential risks and stimulates innovation to mitigate and/or adapt to these risks. In this temporal model, common law tort plays an essential role in transition, allowing for experimentation with various risk-minimization methods and remedial approaches until optimal approaches emerge which could then be enshrined in more uniform regulations.
The chapter identifies and assesses this dynamic, information-forcing role for common law tort liability in the realm of climate change litigation. In this model, common law tort, rather than a relic of the past, emerges as relevant to the future of environmental risk regulation, as indeed superior to legislation and/or regulation in terms of addressing newly-emergent risks. Moreover, the model suggests that the interaction between common law tort and federal statutes and regulations will remain interactive and dynamic over time.
The chapter then uses climate change litigation as a case study to shed light on the expansion of common law public nuisance to fill a regulatory void in this area, revealing the modern relevance of common law tort in environmental law. The chapter concludes with a preliminary evaluation of the extent to which experimentation among states and municipalities with regard to various adaptation measures fits the optimal model of common law tort in transition, with a final gesture toward forces at play that may stymie the common law’s evolutionary impulses.
Next, Personalized Damages. The abstract provides:
In Personalized Law: Different Rules for Different People, Professors Omri Ben-Shahar and Ariel Porat imagine a brave new tort world wherein the ubiquitous reasonable person standard is replaced by myriad personalized “reasonable you” commands. Ben-Shahar’s and Porat’s asymmetrical embrace of personalized law—full stop for standards of care, near rejection for damages—raises four issues, not sufficiently taken up in the book. First, the authors equivocate too much with regard to the purposes of tort law; ultimately, if and when forced to choose, law-and-economics deterrence-based theory holds the most promise for modern tort law. Second, the damage-uniformity approach clearly dominates the status quo of “crude” personalization. Third, via a deterrence lens that eschews “misalignments” in tort law, a personalized standard of care necessitates personalized damages. Fourth, the true benefit of an ideal personalized damages regime might be further uncovering the root cause of racial and gender disparities in status quo tort damages. Paradoxically, ideal personalization might then reinforce the damage-uniformity approach.
Wednesday, May 11, 2022
Sandra Sperino has posted to SSRN The Causation Canon. The abstract provides:
It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon—the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish “but for” cause.
This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.
The Supreme Court claimed the new causation canon represents “ancient” and “long-held” principles of common law. The Supreme Court’s claims about the causation canon are easily disprovable with only a cursory re-view of Supreme Court cases from the past 40 years. This is not a case of a contested or difficult historic record.
With the causation canon the Court did not simply apply the common law to statutes. Instead, it created its own new federal causation standard that is not consistent with any state’s common law or even the Restatement of Torts. The Court significantly changed the common law and then magnified the significance of the change by imposing it as a default statutory interpretation canon that will apply across both federal civil and criminal statutes.
This new canon represents a significant change in the way the Supreme Court has used the common law, and it does not fit comfortably within claims made about textualism generally or substantive canons specifically. Creating a new federal common law of factual cause and imposing that newly created law as a default standard significantly raises the profile of this area of statutory interpretation and demands greater scholarly inquiry.
Tuesday, May 10, 2022
Kip Viscusi and Rachel Dalafave have posted to SSRN The Broad Impacts of Lighter Safety Regulations. The abstract provides:
The Consumer Product Safety Commission’s regulation of disposable lighters was targeted at preventing injuries due to use of lighters by children not over 4 years of age. Based on a difference-in-differences analysis of national data for 1990-2019, this article estimates that the regulation reduced all injuries to the target population by 71%, burn injuries by 74%, and injuries severe enough to warrant admission to the hospital by 85% overall and by 84% for burn injuries. Unlike the counterproductive performance of safety cap regulations, this safety device enhanced safety levels in the target population group. The safety improvements from lighter safety devices outweigh any lulling effect of viewing products as being “childproof.” The regulation had a broader safety impact beyond the target population group, as it also reduced all types of injuries by at least 50% for children in the 5-17 age group. Total annual risk reduction benefits were $940 million-$1,465 million. A benefit-cost analysis based on a retrospective assessment of the regulation finds a more favorable impact than was anticipated.
Wednesday, May 4, 2022
Sarah Swan has posted to SSRN Running Interference: Local Government, Tortious Interference with Contractual Relations, and the Constitutional Right to Petition. The abstract provides:
Local governance is a participatory sport. Businesses bring preemption claims; constituents and other entities enforce municipal laws; and individuals and interest groups enthusiastically engage in significant grassroots petitioning and lobbying. The boundary between the governed and those doing the governing is at its most porous here, with constituents and leaders often moving in and out of such roles. Citizens can easily access leaders, and leaders show a high level of receptivity to resident requests.
This public participation in local governance is usually applauded. However, when constituents complain about a municipality's ongoing contract with a private party, they may find themselves in a very different position. Instead of being praised for their political participation, they might face a lawsuit for tortious interference with contractual relations. Tortious interference with contractual relations is an unruly tort at the best of times, but it becomes even more so in the context of local government, when what otherwise be commended as contributing to participatory democracy or exercising the constitutional right to petition is instead portrayed as unlawful interference. A recent case from a Florida appellate court affirming that an environmental activist owes $4.4 million in damages for disparaging a public-private partnership illustrates the tort's many problematic features and its poor fit within the context of local government.
Fortunately, the clash between tortious interference and the right to petition can be resolved, as numerous other courts have found, with a robust application of the Noerr-Pennington rule. Especially when combined with more capacious anti-SLAPP legislation and the new narrowed version of tortious interference set forth in the recent Restatement (Third)of Torts, the Noerr Pennington doctrine properly protects the rights of petition crucial to local government functioning, while still retaining a small sphere of potential liability for egregious wrongdoing.
Thursday, April 28, 2022
Linda Mullenix has posted to SSRN The Short Unhappy Life of the Negotiation Class. The abstract provides:
On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division approved a novel negotiation class certification in the massive Opiate MDL. Merely one year later September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.
This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry.
The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster’s negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class.
The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace.
The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorney generals raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory.
The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster’s embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule.
It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model.
Wednesday, April 27, 2022
Matthew Shapiro has posted to SSRN Procedural Wrongdoing. The abstract provides:
Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct—their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the benefits and minimize the costs of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of the effects of litigation conduct, but rather in terms of parties’ motivations, forbidding parties to act with certain motives or for certain purposes. According to these rules, which this Article labels motivation-sensitive restrictions, the very same litigation conduct can either constitute procedural wrongdoing or not, depending on a party’s motivations for engaging in it.
This Article provides a comprehensive analytical account of civil procedure’s motivation-sensitive restrictions. In doing so, it contends that the restrictions have ambiguous normative consequences for civil justice. On the one hand, the restrictions can foster a thin but nevertheless valuable form of procedural civic virtue, prodding parties to attend to important public values even as they pursue their own private ends through the civil justice system. On the other hand, precisely because they focus on parties’ subjective purposes, the motivation-sensitive restrictions risk inflaming public discourse about civil justice by inviting participants in policy debates to transmute their disagreements into moralized accusations of abuse or bad faith. We can try to mitigate these latter, discursive effects by emphasizing the relatively modest demands imposed by the motivation-sensitive restrictions—the fact that such rules require parties only to abjure certain illicit purposes rather than to become purely public-regarding in their litigation behavior.
This Article’s account of civil procedure’s motivation-sensitive restrictions also sheds new light on leading theories of civil justice, which have largely glossed over the doctrinal infrastructure for addressing procedural wrongdoing. In contrast to the “private enforcement” model espoused by most civil procedure scholars, the motivation-sensitive restrictions (modestly) limit the purposes parties may pursue through civil litigation but make no systematic attempt to ensure that parties promote rather than subvert governmental regulatory policy, belying common portrayals of plaintiffs as stand-ins for the state—“private attorneys general.” But the restrictions also expose an underappreciated public dimension of prominent theories of private law, insofar as they curb party autonomy by requiring parties to attend directly to public values when taking certain actions during civil litigation. Civil procedure’s motivation-sensitive restrictions, in short, reveal the civil justice system to be both more private and more public than how it’s generally understood.
Monday, April 25, 2022
Sandy Steel has posted to SSRN Culpability and Compensation. The abstract provides:
This paper examines the role of moral culpability in relation to legal duties to compensate. It explains why duties to compensate generally arise independently of culpability, but why culpability considerations still play a role in determining the incidence and extent of compensatory liability.
Despite the prevalence of culpability-independent liability in private law, I describe various doctrines which nonetheless appear either to require culpability to establish liability or justify an expanded liability by reference to it. The paper offers various explanations of these doctrines. In some cases, they are probably mistaken. In other cases, the appearance that the doctrine makes liability hinge upon culpability is misleading. In still others, culpability justifies an expanded liability in virtue of defeating or diminishing an objection to liability that would otherwise exist. That objection may be one that, as Cane has argued, points to the social interest in conditioning liability upon culpability. But it may also be an objection that an individual defendant could reasonably make to bearing the particular form of liability in the absence of elevated culpability. I conclude with some sceptical observations on views which would elevate moral culpability to a positive sufficient ground of compensatory liability in private law, alongside responsibility.
Friday, April 22, 2022
Cathy Sharkey has posted to SSRN Products Liability in the Digital Age: Online Platforms as 'Cheapest Cost Avoiders'. The abstract provides:
Products liability in the digital age entails reckoning with the transformative shift away from in-person purchases from brick-and-mortar stores toward digital purchases from e-commerce platforms. The epochal rise of the online storefront has vastly expanded the prevalence of direct-to-consumer sales, implicating a panoply of potential harms to consumers and raising the question of how liability rules should respond, especially in light of the development of international e-commerce and cross-border sales.
Consideration of liability for online platforms as “cheapest cost avoiders” reveals the mechanism by which courts’ decision to impose liability on new entities derives from the regulatory needs of society, and hence the desire to pin responsibility on entities in the best position to have readily avoided harm arising from the imposition of excessive risks. Products liability is a microcosm of how the common law evolves over times, specifically, here, to respond to new societal risks—posed by the automobile, mass-produced goods, and now, digital e-commerce. At each juncture in its development, judges relied explicitly on deterrence, prevention of harm, or CCA rationales to address new forms of risks and prevent them from materializing into harms, and in doing so, recognized new harms and/or expanded tort liability.
Tuesday, April 19, 2022
Tom Galligan has posted to SSRN Continued Conflation Confusion in Louisiana Negligence Cases: Duty and Breach. The abstract provides:
Negligence has five elements: duty, breach, cause-in-fact, scope of risk, and damages. Logic dictates that courts, lawyers, scholars, and law students should keep them separate. But they consistently fail to do so. Courts continue to conflate or collapse elements; they combine duty and scope of risk and they combine duty and breach. In combining duty and breach courts purport to determine duty based on the facts of the particular case but, in fact, they are really deciding a question of breach-whether the defendant exercised the care of a reasonable person under the circumstances. In conflating duty and breach courts are turning a mixed question of fact and law—breach—into a question of law. Concomitantly, those courts are taking the breach question away from the factfinder—often the jury--and improperly making it a judicial decision. Even Justice Oliver Wendell Holmes, Jr. notoriously combined duty and breach in his writings and in his articulation of the short-lived stop, look, and listen at grade-crossings “rule.” Sadly, Louisiana courts have frequently followed Justice Holmes’ perilous lead and combined duty and breach in a number of significant instances. The most unfortunate line of jurisprudence manifesting this conflation of duty and breach is the Louisiana Supreme Court’s “open and obvious” risk cases. Herein, building on my prior work on separating duty and scope of risk, I review the jurisprudence from Holmes to the Louisiana open and obvious cases to other Louisiana decisions manifesting the same error. I propose that henceforward courts and scholars clearly separate duty and breach thereby properly allocating the breach decision to the factfinder, unless reasonable minds could disagree.
Monday, April 18, 2022
Heidi Li Feldman has posted to SSRN Public Nuisance Liability and the Irrelevance of the Second Amendment. The abstract provides:
In 2005, the U.S. Congress bestowed on gun makers and sellers broad immunity from civil lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA). Congress explicitly based this immunity on the need to protect Second Amendment rights, pitting defenders of those rights against victims of criminal gun violence seeking to hold gun merchants accountable for their role in such violence. But a contest between civil liability for gun makers and sellers and respect for Second Amendment rights is neither inevitable nor necessary. As a new effort to ground civil liability in state legislation shows, the theory underlying the litigation that precipitated PLCAA has nothing to do with the rights secured by the Second Amendment. It may be politically expeditious or commercially advantageous for the gun industry to link the two, but the link is not legally sound.
States have begun to consider and pass statutes that codify the public nuisance theories of civil liability that animated a wave of litigation against gun industry actors in the late 1990s and early 2000s. New York has already enacted such legislation. A similar bill has been introduced in California. The New York law identifies precise ways in which the conduct of gun makers and sellers can, in combination with unlawful use of their products, constitute a public nuisance. It therefore invites renewed attention to the issue that Congress identified as the central basis for PLCAA: whether there is any threat to Second Amendment rights from litigation premised on the theory that manufacturers who create an overabundance of guns with excessive criminal appeal create a public nuisance. By codifying the precise elements of a cause of action based on this theory, New York’s statute makes it easy to show it does not.
Tuesday, April 12, 2022
Ben Zipursky & John Goldberg have posted to SSRN A Precedent-Based Critique of Legal Positivism. The abstract provides:
The doctrine of vertical precedent requires that courts, except for a jurisdiction’s highest court, must follow an on-point precedent or distinguish it. Lawyers are typically taught that distinguishing a precedent requires a court to articulate why the current case is justifiably treated in a different manner than the precedent. Exclusive legal Positivists are troubled by the phenomenon of distinguishing, because the notion of justification built into the idea of distinguishing precedent appears to call for substantive normative reasoning by lower courts. To respond to this apparent problem, Raz has suggested a model of legal reasoning that treats “distinguishing precedent” as a kind of legal change rather than as law-application. This article contends that the Razian strategy cannot work because it simply gets the law wrong: lower courts are not generally empowered to amend the law. An undistorted description of the practice must recognize that courts engage in small-scale moral reasoning when they distinguish vertical precedents. The last half of the article utilizes several Indiana cases on the affirmative duties of landowners to illustrate the power and authenticity of our anti-positivistic account.
Friday, April 8, 2022
Thursday, April 7, 2022
Christopher French has posted to SSRN Insuring Intentional Torts. The abstract provides:
Conventional insurance law lore provides intentional torts are not, and should not be, covered by insurance. There are four primary justifications for this: 1) injuries or losses must be fortuitous (i.e., accidental) to be covered by insurance, 2) most insurance policies contain express intentionality exclusions that preclude coverage for injuries or losses expected or intended by the insured, 3) wrongdoers should not be permitted to benefit from their own intentional misconduct by allowing insurance to cover their liabilities for such misconduct, and 4) it is against public policy to allow insurance to cover injuries or losses caused intentionally because allowing such coverage would undermine society’s interest in deterring and punishing intentional misconduct. On the other hand, there are other competing public policies that weigh in favor of allowing insurance to cover intentional torts: 1) the enforcement of contracts, and 2) the compensation of innocent victims.
This Article analyzes the competing public policies and arguments in favor of and against allowing insurance to cover intentional torts. In doing so, it discusses numerous lines of liability insurance that expressly cover various types of intentional torts. It then explores whether the theoretical foundation underlying the public policy against allowing liability insurance to cover intentional torts – that intentional misconduct is effectively deterred and punished by disallowing coverage – is supported by empirical evidence. Ultimately, the Article concludes that the compensation of innocent tort victims and the enforcement of contracts outweigh the limited deterrent impact of disallowing coverage. Consequently, the Article makes the novel proposal that, contrary to the conventional wisdom, the default rule should be that liability insurance can cover intentional torts unless there are compelling reasons why the specific type of intentional tort at issue should be deemed insurable. The Article further proposes that, contrary to the current law, insurers be granted subrogation rights against their insureds under certain lines of liability insurance for injuries intentionally and directly caused by their insureds.
Tuesday, April 5, 2022
Keith Hylton has posted to SSRN Selling and Abandoning Legal Rights. The abstract provides:
Legal rights impose concomitant legal burdens. This paper considers the valuation and disposition of legal rights, and legal burdens, when courts cannot be relied upon to perfectly enforce rights. Because courts do not perfectly enforce rights, victims suffer some loss in the value of their rights depending on the degree of underenforcement. The welfare implications of trading away and abandoning rights are examined. Victims do not necessarily trade away rights when and only when such trade is socially desirable. Relatively pessimistic victims (who believe their rights are weaker than injurers do) trade away rights too cheaply. Extremely pessimistic victims abandon their rights. Implications for the enforceability of waivers, discrimination in courts, and legal ethics are discussed.
Tuesday, March 29, 2022
Ellie Bublick has posted to SSRN her contribution to the Journal of Tort Law's "The State of Tort Theory" symposium, Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured. The abstract provides:
How do courts root themselves in traditional tort principles and policies and also develop tort common law in ways that befit contemporary values? This essay argues that judges should weave classic tort aims of harm prevention and redress with contemporary norms of equality of persons, to provide a fuller accounting to people foreseeably risked and harmed by projects undertaken for financial gain. In essence, common law courts must re-ask the crucial question of who is a neighbor in a shrinking world in which risks and consequences can be traced somewhat farther. The article commends a few recent decisions that compel legal regard for a broader cohort of injured people and promote care for their wellbeing. It also encourages scholars to engage more deeply with the state court decisions that determine tort law’s reach.
Monday, March 28, 2022
Danielle Keats Citron has posted to SSRN How to Fix Section 230. The abstract provides:
Section 230 is finally getting the clear-eyed attention that it deserves. No longer is it naive to suggest that we revisit the law that immunizes online platforms from liability for illegality that they enable. Today, the harm wrought by the current approach is undeniable. Time and practice have made clear that tech companies don't have enough incentive to remove harmful content, especially if it generates likes, clicks, and shares. They earn a fortune in advertising fees from illegality like nonconsensual pornography with little risk to their reputations. Victims can't sue the entities that have enabled and profited from their suffering. The question is how to fix Section 230. The legal shield enjoyed by online platforms needs preconditions. This essay proposes a reasonable steps approach borne out of more than 12 years working with tech companies on content moderation policies and victims of intimate privacy violations. In this essay, I lay out concrete suggestions for a reasonable steps approach, one that has synergies with international efforts.
Thursday, March 24, 2022
Alberto Bernabe has posted to SSRN Teaching at the Intersection of Torts, Race, and Gender. The abstract provides:
Recent social movements concerned with racial relations and bias have inspired changes in law school education. In some schools, the changes involved creating specific courses while in others, professors have been encouraged to incorporate relevant materials into already existing courses. At first glance, Torts might not seem to be a particularly apt course for exploring issues of race and gender. However, a more careful look at the subject matter of the course reveals multiple topics in which race and gender play a critical role in the development and application of the doctrines. In this article I discuss how to integrate materials to explore the intersection of issues of race and gender into a first year Torts course and suggest specific cases and materials to build such a course.
Tuesday, March 22, 2022
Monday, March 21, 2022
Scott Skinner-Thompson has posted to SSRN Anti-Subordination Torts. The abstract provides:
In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.
But thanks to innovative scholars attentive to power disparities in the law and society, an ever-growing body of scholarship analyzes, critiques, and suggests reforms to tort law based on the racial, gender, ableist, socio-economic, and sexuality-based disparities or stereotyping assumptions that exist within the doctrine and its application. Professor Martha Chamallas’s scholarship has been at the vanguard of this important trend and it’s a joy to celebrate her ground-breaking work in this Festschrift, although a tall order to do it justice.
Her intellectual and moral leadership have helped us realize that tort law—no less than constitutional law, civil rights, or criminal law—is a context where power and identities play a critical role in determining whose lives will be valued, whose injuries will be remedied, and what injustices will be rectified. Or not. This work has implications not just for how tort law is interpreted and applied in courts, but also how it is taught in school. In fact, several of Professor Chamallas’s scholarly endeavors focus specifically on bringing these insights to bear on law school curriculum.
As detailed herein, her substantive contributions to tort scholarship and theory are manifold but include at the top of the list (my list, anyway): (1) critiquing the degree to which harms often (but not exclusively) associated with women are unrecognized or devalued in tort law, (2) unearthing the ways in which the injuries of racism have been ignored, and (3) articulating how constitutional equality principles might be used to reform some of the discriminatory practices of tort law.
All told, I suggest that Professor Chamallas has helped engender an anti-subordination approach to tort law. As characterized here, this anti-subordination approach to tort law does not just simply attempt to redress formal inequalities in doctrine or its application, putting people on formally equal footing in the eyes of the law. Rather, this approach moves the law in favor of prioritizing (with special solicitude) the injuries disproportionately inflicted on marginalized communities and, potentially, being mindful of (instead of ignoring) identity differences to create contextually sensitive rules that may level up those that have historically been subjugated or ignored.
Monday, March 14, 2022
Tony Sebok has posted to SSRN Going Bare in the Law of Assignments: When is an Assignment Champertous?. The abstract provides:
This Article is a response to David Capper’s The Assignment of a Bare Right to Litigate, in which he reviews the evolving approach to champerty in Ireland and the United Kingdom. Capper’s paper makes two claims. First, that maintenance is less offensive to the law of champerty than the assignment of “bare” claims. Second, the law of champerty can, and ought to, distinguish the assignment of bare claims from other types of assignment and that the historical trend of allowing the assignment of choses of action should not be extended to bare assignments.
I offer a perspective on the parallel evolution from the point of view of the United States. In connection with Capper’s first claim, I note that in the United States there is great resistance to the first claim – in many jurisdictions the evils of maintenance are conflated with the purported evils of the assignment of “bare” or “naked” choses in action. In connection with Capper’s second claim, I argue that Capper’s proposal misidentifies the public policy concern that should ground a limitation on the assignment of claims. As I read the English cases, especially Lord Denning’s opinion in Trendtex Trading Corp. v. Credit Suisse, only a concern about abuse of process should warrant the refusal of courts to enforce economically-motivated assignments. The degree to which they are “naked” or “bare” has nothing to do with whether the assignments violate public policy, and analysis based on this concern should be abandoned.