TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, April 9, 2020

Goldberg on Recognizing Wrongs

Harvard Law Today includes an interview with John Goldberg about the book he and Ben Zipursky co-authored, Recognizing Wrongs.

April 9, 2020 in Books, Scholarship | Permalink | Comments (0)

Friday, April 3, 2020

Cupp on Animals as Plaintiffs

Richard Cupp has posted to SSRN Considering the Private Animal and Damages.  The abstract provides:

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have, in dramatic fashion, moved from academic debate to high-profile litigation. Focusing on two recent cases, this short article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse’s owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications in seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern over animal welfare is rapidly increasing, and more needs to be done to protect animals. But efforts like Vercher and Naruto represent a societally harmful approach to animal protection. Such cases will probably continue to fail in the short term, but analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high – success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the potential for misguided rulings creating dangerous animal legal personhood through such lawsuits is real.


April 3, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, April 1, 2020

Billauer on Using the Law as a Public Health Response

Barbara Pfeffer Billauer has posted to SSRN The 2018-2019 Measles Epidemic:  Using the Law as a Public Health Response.  The abstract provides:

Measles rates increased dramatically during the 2018-2019 season, both in the US and globally. This phenomenon is reflective of a general decline in world-wide vaccination. In the US, the outbreaks targeted the Ultra-Orthodox Jewish communities, as it did in Israel. This article explores various reasons for this sudden surge and evaluates various legal responses, demonstrating the power of the law in quashing epidemics and reaffirming the constitutionality of mandating vaccination, even in the face of objections such as violation of religious freedom, autonomy and liberty.

April 1, 2020 in Scholarship | Permalink | Comments (0)

Monday, March 30, 2020

Robinette & Wachtel on Raising Compulsory Auto Insurance Minimum Amounts in PA

Dani Wachtel (Widener Commonwealth Class of 2020) and I have posted to SSRN Raising Compulsory Automobile Insurance Minimum Amounts:  A Case Study from the United States.  Published in Insurance Review (Poland) as a contribution to a symposium, the abstract provides:

This article discusses a decision both European Union Member States and states in the United States must make: whether to raise their compulsory automobile insurance minimum amounts. The authors review a case study from the United States, the Commonwealth of Pennsylvania, and conclude a proposed increase in the compulsory minimum amounts should pass the legislator. The purpose of compulsory automobile insurance is to compensate victims of automobile accidents. Due to inflation, the minimum amounts in Pennsylvania no longer compensate adequately. Moreover, the data do not support the contention that an increase in the minimum amounts will cause large increases in premiums and uninsured rates. The authors conclude that compulsory minimum amounts should be periodically reviewed, as they are in the European Union, and that arguments about large increases in premiums and uninsured rates should be subjected to a careful review based on data.

March 30, 2020 in Legislation, Reforms, & Political News, Scholarship | Permalink | Comments (0)

Friday, March 27, 2020

Lens on Medical Paternalism & Stillbirth

Jill Lens has posted to SSRN Medical Paternalism, Stillbirth, & Blindsided Mothers.  The abstract provides:

Pregnant women know that some things that can go wrong in their pregnancies. They know of the chance of miscarriage, the reason most women do not even publicly share their happy news until after twelve weeks. They also know of the chance of certain chromosomal abnormalities, including fatal ones, as doctors’ disclosure of and screening for these abnormalities has become routine in prenatal care. But empirical studies confirm that pregnant women are ignorant of the chance of stillbirth, the death of the unborn child in the woman’s womb after twenty weeks of pregnancy but before birth. Women are ignorant that stillbirth means the woman will have to give birth to her dead baby. Women remain ignorant of the chance and reality of stillbirth because of medical paternalism—doctors think pregnant women do not need to and should not know of the chance of stillbirth.

This Article argues that a woman has a right to know of the chance of stillbirth before it happens to her child, a right enforceable through an informed consent medical malpractice tort claim. The application of modern informed consent law to define this right is novel, but not difficult. The risk of stillbirth is easily material and no evidence supports the myth that disclosure will cause pregnant women anxiety. Doctors are not protecting anyone, except maybe themselves, by failing to disclose stillbirth. To the contrary, numerous countries other than the United States have reduced their stillbirth rates through initiatives that include requiring doctors to disclose the risk of stillbirth to women and to educate women on the known, simple preventative measures. A tort claim enforcing a woman’s right to disclosure of stillbirth could have a similar effect in the United States.

March 27, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, March 25, 2020

Abraham on Long-tail Civil Liability

Ken Abraham has posted to SSRN The Long-tail Liability Revolution:  Creating the New World of Tort and Insurance Law.  The abstract provides:

Very few developments have ever transformed either tort or insurance law. One development -- as important in our time as the adoption of liability for negligence was in the 19th century or the rise of strict products liability was in the 20th century -- transformed both. That is the rise of long-tail civil liability. A long-tail claim involves tortious or other liability-creating conduct that causes latent bodily injury or property damage that then manifests itself only many years after the harm-causing conduct occurred. Exposure to asbestos, and the storage of hazardous waste that slowly leaches into an aquifer, are paradigm examples. Beginning about fifty years ago, long-tail liability, and claims against liability insurers for insurance coverage of long-tail liability, have generated the vast majority of cutting-edge issues facing these two related fields. It is precisely the length of the tail on certain tort claims that is responsible for most of the fundamental developments in these fields over the past fifty years. Without long-tail liability, tort and insurance law, and many of the fundamental structural features of these fields, would look today much like they looked fifty years ago, and indeed, fifty years before that. But because of long-tail liability, features of both fields that simply did not exist fifty years ago are now central to these fields.

Almost all of this involved common law change. In an era dominated legally by federal legislation and the administrative state, the long-tail liability revolution was the exceptional instance in which judge-made, state-law rules governing tort law and insurance were central. The long-tail liability revolution took decades to occur, largely because it occurred through the common law process. It is also an example of what the legal system may face in the 21st century, if and when common law litigation over injury and loss caused by many new technologies that are coming onto the current scene begins to occur. This Article is an effort to understand how the long-tail liability revolution occurred, by analyzing the influence of this new form of liability on tort and insurance law, as well as the consequences that these changes in the law have produced.

March 25, 2020 in Scholarship | Permalink | Comments (0)

Tuesday, March 24, 2020

Abraham & White on Conceptualizing Tort Law

Ken Abraham & Ted White have posted to SSRN Conceptualizing Tort Law:  The Continuous (and Continuing) Struggle.  Their contribution to a special issue of the Maryland Law Review honoring Oscar Gray, the abstract provides:

Today all tort lawyers, scholars, and teachers understand that there are three bases of liability in tort: intent, negligence, and strict liability. That is ordinarily how we think about tort liability, and how we organize tort law in our thinking. But that way of thinking actually does not capture, and has never captured, all of tort law. A quick look at any of the Restatements of torts, or at the leading treatises and casebooks, reveals that this tripartite division is only partly reflected in their organizational structure. Many torts typically are treated in piecemeal, atomistic fashion, as if they fall outside of this tripartite structure of organization altogether. In addition, very different matters are addressed under the three divisions. Something else, or something additional, is going on in tort law, but exactly what is not clear, and never becomes clear.

In fact, the untidy, fragmented organizational structure of contemporary tort law is the legacy of a lost history that not only helps to explain tort law’s puzzling organization, but also to reveal the underlying disordered character of tort law itself. This Article uncovers the ways in which the history and the very nature of tort liability have combined to defeat repeated efforts at coherent conceptualization of this body of law. We first examine the challenge that the treatise and casebook writers faced late in the 19th and early 20th centuries, as they attempted to organize and classify the different features of the new subject of tort law after the ancient, procedure-based “forms of action” and the writ system they accompanied were abolished along with the prohibition against party testimony. We then venture into the archives of the American Law Institute, in which the now-obscure evolution of the first Restatement of Torts in the 1920s is recorded, as that project first attempted, but then largely abandoned, an effort to develop a new, coherent organization of tort law in the first draft of the Restatement. That first draft revealed an incipient vision of tort law’s structure which appeared to be developing, but this vision sputtered and then disappeared, both from future drafts and from conventional histories of tort law. What ultimately took the place of that vision was the puzzling and fragmented organization of tort law that has come down to us today, all the way from that first Restatement. We then turn to the modern period, showing the ways in which the fragmented organization adopted by the first Restatement has persisted and been replicated, with treatises, casebooks, and both the second and third Restatements of torts largely accepting and adopting the organization of tort law that found its way into the first Restatement.

March 24, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, March 18, 2020

Perry on the Law and Economics of Online Republication

Ronen Perry has posted to SSRN The Law and Economics of Online Republication.  The abstract provides:

Jerry publishes unlawful content about Newman on Facebook, Elaine shares Jerry’s post, the share automatically turns into a tweet because her Facebook and Twitter accounts are linked, and George immediately retweets it. Should Elaine and George be liable for these republications? The question is neither theoretical nor idiosyncratic. On occasion, it reaches the headlines, as when Jennifer Lawrence’s representatives announced she would sue every person involved in the dissemination, through various online platforms, of her illegally obtained nude pictures. Yet this is only the tip of the iceberg. Numerous potentially offensive items are reposted daily, their exposure expands in widening circles, and they sometimes “go viral.”

This Article is the first to provide a law and economics analysis of the question of liability for online republication. Its main thesis is that liability for republication generates a specter of multiple defendants which might dilute the originator’s liability and undermine its deterrent effect. The Article concludes that, subject to several exceptions and methodological caveats, only the originator should be liable. This seems to be the American rule, as enunciated in Batzel v. Smith and Barrett v. Rosenthal. It stands in stark contrast to the prevalent rules in other Western jurisdictions and has been challenged by scholars on various grounds since its very inception.

The Article unfolds in three Parts. Part I presents the legal framework. It first discusses the rules applicable to republication of self-created content, focusing on the emergence of the single publication rule and its natural extension to online republication. It then turns to republication of third-party content. American law makes a clear-cut distinction between offline republication which gives rise to a new cause of action against the republisher (subject to a few limited exceptions), and online republication which enjoys an almost absolute immunity under § 230 of the Communications Decency Act. Other Western jurisdictions employ more generous republisher liability regimes, which usually require endorsement, a knowing expansion of exposure or repetition.

Part II offers an economic justification for the American model. Law and economics literature has showed that attributing liability for constant indivisible harm to multiple injurers, where each could have single-handedly prevented that harm (“alternative care” settings), leads to dilution of liability. Online republication scenarios often involve multiple tortfeasors. However, they differ from previously analyzed phenomena because they are not alternative care situations, and because the harm—increased by the conduct of each tortfeasor—is not constant and indivisible. Part II argues that neither feature precludes the dilution argument. It explains that the impact of the multiplicity of injurers in the online republication context on liability and deterrence provides a general justification for the American rule. This rule’s relatively low administrative costs afford additional support.

Part III considers the possible limits of the theoretical argument. It maintains that exceptions to the exclusive originator liability rule should be recognized when the originator is unidentifiable or judgment-proof, and when either the republisher’s identity or the republication’s audience was unforeseeable. It also explains that the rule does not preclude liability for positive endorsement with a substantial addition, which constitutes a new original publication, or for the dissemination of illegally obtained content, which is an independent wrong. Lastly, Part III addresses possible challenges to the main argument’s underlying assumptions, namely that liability dilution is a real risk and that it is undesirable.

March 18, 2020 in Scholarship, Web/Tech | Permalink | Comments (0)

Monday, March 16, 2020

Weisbord on Postmortem Defamation

Reid Weisbord has posted to SSRN Postmortem Defamation in a Society Without Truth for the Living.  The abstract provides:

Defamation law limits the private action for reputational injury to plaintiffs who are alive at the time of disparagement. In a novel reform proposal, Professor Don Herzog argues that we should extend defamation liability to disparaging statements about dead people. This Essay evaluates Herzog’s theory of postmortem reputational harm by focusing mainly on two counterarguments not addressed in his proposal: The first is that, since the election of President Trump, the modern political discourse has become so detached from the truth and callous about death that it is difficult to envision a moral obligation to protect postmortem reputational interests. The second distinguishes the consequentialist doctrine of testamentary intent from Herzog’s moral theory of postmortem defamation. This Review Essay concludes that, while society should indeed strive to recognize a moral obligation to protect decedents against reputational harm, we cannot do so without first restoring our commitments to truth-telling and respecting the solemnity of death.

March 16, 2020 in Scholarship | Permalink | Comments (0)

Tuesday, March 10, 2020

Lindenfeld on Clear Evidence

Eric Lindenfeld has posted to SSRN Clear Evidence Clarified.  The abstract provides:

In 2009, the Supreme Court in Wyeth v. Levine articulated a standard of federal preemption for failure-to-warn claims in the brand name drug context. Specifically, the Court ruled that a defendant could only be afforded the benefit of federal preemption if it could present “clear evidence” that the warning which plaintiffs argued should have been included on the label would have been rejected by FDA. Over the next decade, courts took wildly divergent approaches to Levine’s clear evidence standard, creating uncertainty amongst plaintiffs and defendants alike. Courts disagreed, for example, on whether FDA denial of the warning must be actual or hypothetical. Moreover, courts applying the clear evidence standard disagreed on the relevance and import of similar drug label rejections, years-old label rejections for the same drug, scientific literature, independent FDA studies, emails, correspondence, or materials buried in thousand-page submissions. The confusion spawned a labyrinth of conflicting rulings and decade worth of confusing and inconsistent precedent. It has also generated a significant amount of scholarship, including scholarship by this author, calling on the high court to revisit and rearticulate the standard.

Recognizing, perhaps, that clarification of the clear evidence standard was long overdue, in May 2019, the Supreme Court issued a ruling in Merck Sharp & Dohme Corp. v. Albrecht, with major impact on the product liability landscape. Most significantly, the Court rejected the use of hypothetical preemption, clarifying that clear evidence requires that defendants show that FDA actually and expressly rejected the warning which plaintiffs argued was necessary under state tort law standards. The Court’s newly articulated five-part test also establishes that in order to receive the benefit of federal preemption, defendants must demonstrate that they provided FDA all material and relevant information. While certain nuances were left unaddressed by the Court, and certain interpretive issues have been hotly debated amongst the first wave of commentators, the newly stated rule provides much needed clarification on the clear evidence inquiry. This clarification is especially important given that the standard’s application is most common in high stakes, consolidated litigation involving thousands of lawsuits and some of the most innovative and complex drugs and devices ever sold.

This paper proceeds in five Parts. Part I provides a background on the federal regulatory regime governing prescription drugs, including the mechanisms available to manufactures and FDA to supplement a brand name drug’s label. Part II briefly lays the groundwork of the evolution of federal preemption principles in the brand name preemption context, including the foundation of the clear evidence standard. Part III explains the conflicting applications of the traditional clear evidence standard, and then progresses into the genesis and holding of the Supreme Court decision in Albrecht. Part IV then analyzes the Supreme Court’s holding, carefully detangling and examining the language of the newly stated rule, as well as forecasting its prospective interpretation and application. Having concluded that the newly stated rule, at the minimum, dramatically limits defendants’ ability to assert the clear evidence standard. Part V analyzes its potential policy implications. The paper concludes that Albrecht’s new rule is a positive step for consumer safety, offers consistency, will not overburden FDA, and is not overly-draconian.

March 10, 2020 in Scholarship | Permalink | Comments (0)

Monday, March 9, 2020

Priel on Structure and Function in Tort Law

Dan Priel has posted to SSRN Structure, Function, and Tort Law.  The abstract provides:

A popular view among tort theorists is that an explanation of tort law must take account its “structure,” since this structure constitutes the law’s “self-understanding.” This view is used to both criticize competing functional accounts of tort law, especially economic ones, that are said to ignore tort law’s structure, and, more constructively, as a basis for explaining various tort doctrines. In this essay, I consider this argument closely and conclude that it is faulty. To be valid, one needs a non-question begging way of identifying the essence of tort law. I argue that law’s “self-understanding” can only make sense if it means the understanding of certain people. Examining those, I conclude that the claim of structuralists is false, for there are many people who take its function to be central. I then further show that if one wishes to understand the development of tort law’s doctrine one must take both structure and function into account. I demonstrate this claim by examining the development of the doctrine dealing with causal uncertainty and vicarious liability.

Forthcoming in the Journal of Tort Law.

March 9, 2020 in Scholarship | Permalink | Comments (0)

Monday, March 2, 2020

Arlen on Med Mal and Empirical Data

Jennifer Arlen has posted to SSRN Reality Check:  How Malpractice Facts Changed Malpractice Liability Theory.  The abstract provides:

Empirical legal studies has transformed economic analysis of malpractice liability. Until recently, economic analysis of malpractice liability has been based on the traditional model of accidents. This model supports the conclusion that malpractice liability may not be needed if health insurers, not physicians, bear treatment costs. Moreover, this analysis implies that even when liability is welfare-enhancing, it need not be mandatory if patients are informed about the costs and benefits of liability. Empirical analysis of medical errors reveals that we cannot rely on the simple model of accidents to analyze optimal malpractice liability because patient safety depends on two different care decisions, only one of which is properly captured by the traditional model. Expanding the model to account for the two distinct ways that physicians protect patients reveals that malpractice liability is needed even when doctors want to select the right treatment. It also reveals why contractual malpractice liability is inefficient even when patients are informed about the costs and benefits of liability.

March 2, 2020 in Scholarship | Permalink | Comments (0)

Friday, February 28, 2020

Abraham & White on Rethinking the Development of Modern Tort Liability

Ken Abraham and Ted White have posted to SSRN Rethinking the Development of Tort Liability.  The abstract provides:

The standard story of the development of modern tort liability is straightforward, but it turns out to be seriously misleading. The story is that, in the second half of the nineteenth century, negligence liability replaced the pre-modern forms of action as the principal basis for the imposition of liability for accidental bodily injury and property. Suits for negligence began to be brought, and insurance against liability for negligence was introduced. The tort system, and the liability insurance system that had arisen to accompany it, were then quiescent for the next half-century. Around 1970 tort liability began to expand substantially. For several decades there have been contentions that at that point there was an “explosion” of tort liability.

The problem with this story is that it trades on a misleading caricature of what was occurring in the tort system before 1970. Tort law doctrine was indeed largely quiescent during the middle four or five decades of the twentieth century, just as the story suggests, until the well-known doctrinal expansions of 1965 to 1985 began. But tort liability was not quiescent at all. The magnitude of payments made to tort victims increased exponentially between 1920 and 1970 – by some measures, at a much greater rate than after 1970 -- and the magnitude of premiums paid for liability insurance increased in the same exponential manner. In addition, after liability insurance was introduced late in the nineteenth century, it did not simply become a behind-the-scenes source of financing for tort defendants, the way a passive guarantor stands behind a debtor. Rather, between 1920 and 1970, the courts confirmed, created, and extended liability insurers’ duty to defend their policyholders in tort suits and their duty to accept reasonable offers to settle tort suits against their policyholders. Liability insurers’ active performance of those duties created an unrecognized dynamic cycle that intensified the growth of tort liability, bringing it to the point where it stood in 1970. This Article rethinks the conventional story, by examining the important developments in tort liability and liability insurance that preceded the “explosion” of tort liability, and offers historical, political, and intellectual reasons why the misleading conventional story took root.

February 28, 2020 in Scholarship | Permalink | Comments (0)

Monday, February 17, 2020

Gilles & Friedman on Issue Class Actions

Myriam Gilles & Gary Friedman have posted to SSRN The Issue Class Revolution.  The abstract provides:

In 2013, four Supreme Court Justices dissented from the decision in Comcast v. Behrend establishing heightened requirements for the certification of damages class actions. In a seemingly off-handed footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes, by certifying a class under Rule 23 (c)(4) on “liability” issues only, and “leaving individual damages calculations to subsequent proceedings.” The dissenters were on to something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across a number of substantive areas, after decades of judicial hostility. This article offers a bold and original vision for the issue class procedure, promising scale efficiency while sidestepping the doctrinal land mines that dot the class action landscape. It is a vision rooted in sober pragmatism and an account of the economic incentives confronting entrepreneurial law firms as they consider investing in aggregate litigation under Rule 23(c)(4).

February 17, 2020 in Scholarship | Permalink | Comments (1)

Friday, February 14, 2020

Baker on Uncertainty and the Insurance Runoff Market

Tom Baker has posted to SSRN Uncertainty>Risk:  Lessons for Legal Thought from the Insurance Runoff Market.  The abstract provides:

Insurance ideas inform legal thought: from tort law, to health law, to theories of distributive justice. Within legal thought, insurance is often conceived as an ideal type in which insurers distribute determinable risks through contracts that fix the parties’ obligations in advance. This ideal type has normative appeal, among other reasons because it explains how tort law might achieve in practice the objectives of tort theory. Significantly for tort theory, this ideal type supports a restrictive vision of liability-based regulation, on the grounds that uncertainty poses an existential threat to insurance markets.

Prior work has criticized this restrictive vision on normative grounds. This article criticizes that vision on empirical grounds. The article describes an emerging secondary insurance market – the insurance runoff market – that transfers liabilities under insurance policies issued many years in the past. Having started with old asbestos and hazardous waste liabilities, the market now extends to other liabilities that have not worked out well for the companies that insured them, including workers compensation, savings-linked life insurance, pension and annuity guarantees, and long term care insurance.

Runoff specialists reprice these legacy insurance liabilities with hindsight, consolidate them, and take calculated risks that encourage capital to enter the runoff market. That market transforms the uncertainties of the past into today’s tradeable risks, bringing into the open a dynamic that pervades insurance markets: namely, the promises that are made in all insurance policies get bundled and reconceptualized into sets of liabilities that are valued and revalued, further combined and redefined over time.

Through the lens of the runoff market we can see many ways that insurance organizations manage uncertainty, revealing the resilience in insurance markets and the flexibility and innovation that produce that resilience. The runoff market counsels us to give much less weight to arguments that expanding liability will undermine insurance markets. Insurance already involves so much uncertainty, and insurers have so many ways to manage it, that the most likely result will always be that they will continue to muddle through.

February 14, 2020 in Scholarship | Permalink | Comments (0)

Thursday, February 13, 2020

Gilead on Simplifying Negligence

Israel Gilead has posted to SSRN Simplifying the Complexities of Negligence Law--A Joint Academic/Judicial Proposal.  The abstract provides:

Over a century, Common Law judges, academics, and practitioners have struggled with the complexities of negligence law. All agree that negligence liability is imposed on a defendant whose unreasonable conduct caused foreseeable harm to the plaintiff, and who owed a duty of care to the plaintiff. But views differ considerably as to the meaning and role of each element (conduct, harm causation, duty), the test, and the relevant considerations that should be applied to each, the interrelation between these elements, and the meaning and role of the foreseeability requirement in each element.

Against this background, the author has argued for years that the above complexities can be easily solved by a simplified model of negligence. Recently the author’s model has been embraced by Israeli Justices and judges. The article presents the proposed model, explains how it solves the described complexities, and fends off criticism. It then demonstrates the model’s operation by applying it to the 2018 CSS’s decision in the Rankin case. A glimpse at the Third Restatement on Torts shows that it steers in the same direction, as evidenced by an analysis of the Palsgraf case and the unforeseeable plaintiff question. Following a short overview of leading British cases from Donoghue to the 2018 decision in Robinson, it is argued that a shift to the proposed model would be a natural evolution that can be easily achieved. In contrast, it is argued that Canadian law has moved in another direction, for incorrect reasons. The model is then compared with another reform recently suggested in the literature. Finally, fault-based liability in continental Europe is viewed from the perspective of the proposed model.

February 13, 2020 in Scholarship | Permalink | Comments (0)

Wednesday, February 5, 2020

JOTWELL Torts: Zipursky on Fallon on Constitutional Torts

At JOTWELL, Ben Zipursky reviews Richard Fallon's Bidding Farewell to Constitutional Torts.

February 5, 2020 in Scholarship, Weblogs | Permalink | Comments (0)

Monday, February 3, 2020

Selbst on AI and Negligence

Andrew Selbst has posted to SSRN Negligence and AI's Human Users.  The abstract provides:

Negligence law is often asked to adapt to new technologies. So it is with artificial intelligence (AI). But AI is different. Drawing on examples in medicine, financial advice, data security, and driving in semi-autonomous vehicles, this Article argues that AI poses serious challenges for negligence law. By inserting a layer of inscrutable, unintuitive, and statistically-derived code in between a human decisionmaker and the consequences of that decision, AI disrupts our typical understanding of responsibility for choices gone wrong. The Article argues that AI’s unique nature introduces four complications into negligence: 1) unforeseeability of specific errors that AI will make; 2) capacity limitations when humans interact with AI; 3) introducing AI-specific software vulnerabilities into decisions not previously mediated by software; and 4) distributional concerns based on AI’s statistical nature and potential for bias.

Tort scholars have mostly overlooked these challenges. This is understandable because they have been focused on autonomous robots, especially autonomous vehicles, which can easily kill, maim, or injure people. But this focus has neglected to consider the full range of what AI is. Outside of robots, AI technologies are not autonomous. Rather, they are primarily decision-assistance tools that aim to improve on the inefficiency, arbitrariness, and bias of human decisions. By focusing on a technology that eliminates users, tort scholars have concerned themselves with product liability and innovation, and as a result, have missed the implications for negligence law, the governing regime when harm comes from users of AI.

The Article also situates these observations in broader themes of negligence law: the relationship between bounded rationality and foreseeability, the need to update reasonableness conceptions based on new technology, and the difficulties of merging statistical facts with individual determinations, such as fault. This analysis suggests that though there might be a way to create systems of regulatory support to allow negligence law to operate as intended, an approach to oversight that it not based in individual fault is likely to be a more fruitful approach.

February 3, 2020 in Scholarship, Web/Tech | Permalink | Comments (0)

Tuesday, January 28, 2020

CFP: Conference on Indigenous Private Law

The Journal of Commonwealth Law, in cooperation with the Faculties of Law at the Université de Montréal and the University of Cape Town, will host a symposium devoted to exploring the issues inherent in Indigenous private law. We call for papers specifically on Indigenous Private law issues. What norms govern matters relating to Property, Persons and Family, or Succession for example? Beyond that, is there an Indigenous law of Contracts or Torts, or a law relating to (commercial) associations? We invite perspectives from around the Commonwealth and are open to different theoretical frames of reference or methodologies of inquiry. We are also open to papers which discuss how State laws relate to Indigenous private law issues, or the regulation of the Indigenous economy.

The conference will be held at the Université de Montréal on May 8, 2020, and the papers will be published in the Journal of Commonwealth Law, a peer-reviewed journal devoted to exploring legal issues from a multi-jurisdictional perspective. We seek contributions from both established and new scholars from around the Commonwealth, Ireland and the United States.

For more details:  Download CFP Indigenous Private Law Conference

January 28, 2020 in Conferences, Scholarship | Permalink | Comments (0)

Monday, January 27, 2020

Azmat on Civil Recourse Theory

Ahson Azmat has posted to SSRN Tort's Indifference:  Conformity, Compliance, and Civil Recourse.  The abstract provides:

Leading accounts of tort law split cleanly into two seams. Some trace its foundations to a deontic form of morality; others to an instrumental, policy-oriented system of efficient loss allocation. An increasingly prominent alternative to both seams, Civil Recourse Theory (CRT) resists this binary by arguing that tort comprises a basic legal category, and that its directives constitute reasons for action with robust normative force. Using the familiar question whether tort’s directives are guidance rules or liability rules as a lens, or prism, this essay shows how considerations of practical reasoning undermine one of CRT’s core commitments. If tort directives exert robust normative force, we must account for its grounds—for where it comes from, and why it obtains. CRT tries to do so by co-opting H.L.A. Hart’s notion of the internal point of view, but this leveraging strategy cannot succeed: while the internal point of view sees legal directives as guides to action, tort law merely demands conformity. To be guided by a directive is to comply with it, not conform to it, so tort’s structure blocks the shortcut to normativity CRT attempts to navigate. Given the fine-grained distinctions the theory makes, and with the connection between its claims and tort’s requirements thus severed, CRT faces a dilemma: it’s either unresponsive to tort’s normative grounds, or it’s inattentive to tort’s extensional structure.

The piece is forthcoming in the Journal of Tort Law and was Larry Solum's Download of the Week.

January 27, 2020 in Scholarship | Permalink | Comments (0)