Wednesday, August 4, 2021
Tuesday, July 27, 2021
Barbara Pfeffer Billauer has posted to SSRN The Bionic Plaintiff and the Cyborg Defendant: Liability in the Age of Brain-to-Computer Interface. The abstract provides:
Human-enhancing devices via machine interface are rapidly approaching mass marketability. These devices include, for example, exoskeletons that allow functionality for those neurologically impaired are powered hydraulically, mechanically, or electrically. Newer devices, recently approved by the FDA, power such devices via brain waves transmuted into electrical signals. This Brain to Computer Interface (BCI) technology has been utilized in advanced designs, such as controlling a stylus or robotic arms, and more mundane contraptions, such as wheelchairs, via brain waves signaling intention. All are governed under Class II FDA designation for devices posing low and moderate risks.
Of concern are studies that have recorded the existence of a readiness potential that precedes brainwaves involved in conscious movement, recordable shortly before intent to move -- or even awareness of such intent -- is acknowledged by the user. This raises the question regarding whether BCI technology can mobilize devices based on unconscious or subconscious thoughts – creating the possibility of “unintended” harm, calling into question the legal definition of “intent” needed to prove assault and battery. The BCI devices also render it nearly impossible to divine relative contribution of fault in the event of an accident: was it due to the intent (conscious or not) of the user- or product malfunction, the subject, perhaps, of a product liability suit against the manufacturer? It appears the technology is poised to throw the tort system into disarray.
Here I postulate that FDA Class III regulation is warranted for BCI devices. This would assure greater oversight and protection – not just for the user- but for bystanders and the public at large for devices allowing remote movements engineered by pure thought. I further suggest that enhanced testing is warranted – and that failure to pursue such testing might render the manufacturer liable in tort breaching pre-emption bars, thereby furnishing double protection: deterrence via lawsuit, plus FDA oversight. This double protection, I suggest, is warranted in such potentially dangerous situations. Finally, I highlight the difficulties in assessing fault and recklessness in law when actions are committed without full awareness.
Monday, July 26, 2021
Thomas Russell has posted to SSRN Car Crashes, Personal Injury Litigation, and Frivolous Defenses in Alberta and Colorado. The abstract provides:
This Article is a comparative empirical study of car crash litigation in Alberta, Canada and Colorado, USA.
The first part of the Article compares the rates of car crash injuries and litigation between Alberta and Colorado. The Article assembles data for what sociolegal scholars typically call the dispute pyramid, but I argued that a salmon run is a better metaphor for the winnowing of injuries through lumping, claiming, settling, and litigating.
The Article shows that Albertans have a safer driving culture than do Coloradans. Surprisingly, the data also show that Albertans file car crash lawsuits much more frequently than Coloradans, notwithstanding the American reputation for litigiousness. I suggest that something within the settlement of property damage only cases likely accounts for the difference.
The second part of the article presents a summary of empirical data and argument concerning the pleading of frivolous defenses by American insurance defense lawyers. I compare the pleading of these defenses to the Alberta Rules of Court.
I am especially interested in hearing from Alberta and Canadian lawyers regarding differences between the Canadian tort system and that of the United States.
Friday, July 23, 2021
Alena Allen has posted to SSRN The Emotional Woman. The abstract provides:
The emotional woman is nonexistent in the common law, but the reasonable man is an indelible figure. Conceptions of reasonableness permeate nearly every aspect of the law while emotion is largely absent. The reasonable man determines negligence. Reasonable minds determine whether a contract has been formed. Reasonable doubt stands between freedom and incarceration. The primacy of reason in American jurisprudence is so engrained that it is rarely questioned or critiqued. Although it seems axiomatic to equate socially desirable conduct with reasonableness, this Article dissects how reasonableness became a central tenet of American law and argues that continued adherence to reasonableness as the optimal standard for evaluating conduct entrenches value-laden androcentric norms. It further argues that, in practice, reasonableness is an ill-defined construct masquerading as an objective standard. As such, instead of arguing for a reasonable woman standard of care, this Article departs from the standard feminist critique and argues that reasonableness itself is inherently androcentric. Thus, it argues that reasonableness is not the optimal standard for evaluating tortious or criminal conduct. Using current social science research, this Article argues that emotion is crucial to sound decision-making and proffers the emotional woman standard as a superior alternative to the reasonable man. Lastly, this Article discusses implications for how the emotional woman standard furthers existing paradigms of feminist discourse.
Thursday, July 22, 2021
Theodore Rave has posted his article with the late Francis McGovern, A Hub-and-Spoke Model of Multidistrict Litigation, on SSRN. The abstract provides:
Consolidating mass tort cases in federal multidistrict litigation (MDL) has been a successful strategy for efficiently managing, facilitating the maturation of, and resolving nationwide disputes. This has been particularly true for cases involving single-event mass disasters or defective products sold by a single defendant, even when thousands of plaintiffs are involved. But in "mega mass torts"--those involving multiple defendants and multiple products and activities over an extended period of time (e.g., asbestos, silicone gel breast implants, opioids)--comprehensive resolution in an MDL has proven elusive. In these mega mass torts, the MDL judge can become a bottleneck, as there are only so many motions, discovery disputes, and bellwether trials a single judge can decide. But while these types of mega mass torts may be too varied for a single simultaneous trial or global settlement, eschewing aggregation would result in massive losses of efficiency and consistency.
Here we propose a "hub-and-spoke" model of MDL case management for these sorts of mega mass torts that takes full advantage of the nationwide scope of the federal judiciary to relieve pressure at the bottleneck. The idea is to initially consolidate all related cases in a single MDL (the hub) for common discovery and pretrial management. In the course of managing the hub MDL, the hub MDL judge will identify sensible groupings of parties and claims to recommend to the Judicial Panel on Multidistrict Litigation for strategic disaggregation as test cases. Those test cases will then be remanded to other federal judges (the spokes) to allow the litigation to move forward through further pretrial development, bellwether trials, and potential piecemeal settlements. The spoke cases can proceed in parallel with the cases still in the hub MDL to speed the process of maturation, much in the same way that a computer can handle complex tasks faster through parallel processing than through serial processing. The hub MDL judge may also retain jurisdiction over a common issue or party to provide a ready forum for a potential global resolution should the information generated in the spokes make one possible.
In this article, we discuss the problem of bottlenecks in mega mass tort litigation. We then describe the hub-and-spoke model, the advantages it offers over other approaches to mega mass tort litigation, and the ways in which it can increase the chances of finality in mega mass tort cases through a variety of settlement structures. Finally, we analyze an example of the hub-and-spoke model in action in the ongoing National Prescription Opiates MDL.
Friday, July 16, 2021
Lisa Pruitt has posted to SSRN Commentary on Boyles v. Kerr (Texas 1993) for Feminist Judgments: Rewritten Torts Opinions. The abstract provides:
This paper comments on Professor Cristina Tilley's rewritten feminist opinion in Boyes v Kerr (Texas 1993). The Texas Supreme Court in Boyles v. Kerr rigidly refused to extend the state’s negligent infliction of emotional distress (NIED) precedents to permit recovery when the plaintiff was a young woman (Susan Kerr) whose emotional distress was the consequence of her lover (Dan Boyles, Jr.,), in collaboration with three friends, surreptitiously videotaping the pair having sex and then sharing the video with his fraternity brothers at the University of Texas. But the feminist rewrite of Professor Tilley (writing as Justice Tilly) makes clear that the salient doctrines were and are more than capacious enough to have permitted Kerr’s NIED recovery. In fact, the myriad opinions in Boyles, as well as their extensive discussion of NIED’s history and precedents, reveal a highly malleable claim, the evolution of which reveals clearly gendered themes and trends.
Tuesday, June 22, 2021
Andrew Gold has posted to SSRN his review of Stephen Smith's Rights, Wrongs, and Injustices: The Structure of Remedial Law. The abstract provides:
This paper is a draft review of Stephen Smith’s recent book -- Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford University Press, 2019). The book offers a groundbreaking and deeply insightful theory of the remedies in private law. On Smith’s account, remedies are judicial rulings, and they are issued because they provide people with new reasons for action. This review will focus on a jurisprudential puzzle that lies at the center of the book. Rights, Wrongs, and Injustices provides an original account of the authority in court orders. I will suggest that the book is right that the authority in court orders is distinctive, but wrong in its analysis of what grounds that authority. Considering this question, however, sheds significant new light on the law of remedies and on private law as a whole.
Friday, June 11, 2021
Jon Penney has posted to SSRN Understanding Chilling Effects. The abstract provides:
With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding.
I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.
Monday, June 7, 2021
Paul Miller and John Oberdiek have posted Introduction to Civil Wrongs and Justice in Private Law. The abstract provides:
This introduction to Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds., Oxford University Press, 2020) provides a thematic overview of the significance of civil wrongs to debate over conceptual and normative questions in private law theory, as well as a discussion of the contributions to the volume. The volume includes chapters by the editors and María Guadalupe Martinez Alles, Ahson Azmat, Nicolas Cornell, Christopher Essert, Lee Fennell, Kimberly Kessler Ferzan, Andrew Gold, John Goldberg, Ori Herstein, Larissa Katz, Gregory Keating, Liam Murphy, David Owens, James Penner, Jeffrey Pojanowski, Matthew Shapiro, Adam Slavny, Stephen Smith, Findlay Stark, Victor Tadros, and Benjamin Zipursky.
Friday, June 4, 2021
Lynn Baker, Ronen Avraham & Tony Sebok have posted to SSRN The MDL Revolution and Consumer Legal Financing. The abstract provides:
Third-party consumer legal funding, where financial companies advance money on a nonrecourse basis to assist individual plaintiffs with living expenses, is an increasingly popular and controversial part of American litigation. And consumers with mass tort claims pending in Multi-District Litigations (MDLs) constitute the fastest growing sector of those seeking assistance from this billion-dollar funding industry. Policy makers, mass tort plaintiffs’ lawyers, and scholars have increasingly raised concerns about exorbitant interest rates and have called for regulations to protect vulnerable consumers from “predatory lending.” To date, however, the policy debate has largely relied on anecdotes and speculation because funders have not been forthcoming with facts. This Article begins to fill that important informational void.
We were given unique, unrestricted access to the complete archive of 225,293 requests for funding from 2001 through 2016 from one of the largest consumer litigation financing firms in the U.S., and we are the first to explore the anatomy of litigant finance in mass tort cases. We find that the Funder systematically offers mass tort claimants larger advances and more favorable terms along multiple dimensions than it does for consumers with motor vehicle accident claims. Our data analyses involving both categories of claimants offer reassurance about numerous asserted abuses in the funding industry and lead us to recommend that restrictions not be imposed on the availability or cost to consumers of this funding. Rather, we propose that existing market competition be enhanced by the adoption of laws that would ensure greater simplicity, transparency, and consistency in the pre-funding disclosures made to consumers and by removing the prohibitions that most states’ Rules of Professional Responsibility currently impose on lawyers’ ability to provide financial assistance to their clients.
Thursday, June 3, 2021
Lynn Baker & Charles Silver have posted to SSRN In Defense of Private Claims Resolution Facilities. The abstract provides:
This contribution to a Symposium in honor of Francis McGovern's life and accomplishments is a natural occasion on which to assess some of the normative arguments for and against private claims resolution facilities (CRFs). He was one of the most prominent figures in the world of multi-claimant litigation and settlements. We were privileged to work alongside him in various matters and to consider him a friend. We miss him dearly.
The Article begins, in Part II, by describing three core models of private CRFs that are commonly observed in mass tort settings, often in combination: individual settlements by in-house counsel, victim compensation funds, and group settlements (inventory and global). Our view is that variations in the design of CRFs often have functional explanations as responses to the desires and needs of the parties. When the parties differ in their preferred arrangements, the design of a CRF will inevitably reflect inequalities in bargaining power between the parties. That is expected, as each CRF is the product of compromise. With regard to each of the three core models, this second Part will discuss when and why the defendant might prefer it, then go on to discuss its benefits and costs to the plaintiffs (and plaintiffs’ counsel). Part III then addresses two criticisms that scholars have levied against one or more of these types of private CRFs: that private CRFs deny claimants corrective justice, and that judicial supervision is needed to protect claimants’ autonomy and to police agency failures on the plaintiffs’ side. We argue that the first criticism is mistaken because it wrongly contends that corrective justice requires the use of courts, and that the second is erroneous because market forces should encourage plaintiffs’ attorneys to protect claimants’ autonomy as fully as claimants want and tend to reduce agency costs to an efficient level in multi-claimant settlements no less than in single-client matters. The Article concludes in Part IV with some final thoughts on the limited potential of judicial review to improve private CRFs.
Thursday, May 27, 2021
Andrew Kent has posted to SSRN Lessons for Bivens and Qualified Immunity Debates from Nineteenth-Century Damages Litigation Against Federal Officers. The abstract provides:
This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially-created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to the institution which should weigh the costs and benefits of allowing constitutional tort suits against federal officers for damages, especially in areas like national security or foreign affairs in which the political branches might be thought to have constitutional primacy. Scholarly writing and litigation briefs critical of the Court’s treatment of Bivens now frequently focus on damages suits under common law or general law against American government officers in the early republic, reading them as giving Bivens a quasi-originalist pedigree. This historical writing about officer damages suits claims that courts in the early republic: acted independently of Congress to impose significant restraints on federal officers; protected persons from federal overreach no matter their citizenship and territorial location, and even during wartime; and refused to grant anything like qualified immunity that might have softened the blow of strict personal liability and promoted government efficiency. Common law damages suits against federal officers are said to have remained routinely available until after Bivens was decided when, in the 1988 Westfall Act, Congress barred state-law tort suits against federal officers acting within the scope of their employment.
Through case studies of litigation against federal officers involved in customs enforcement and maritime seizures, this Essay qualifies and revises these claims. In those two contexts, I show that there was substantial political branch endorsement of personal damages liability of federal officers in the early republic, but as material and legal conditions changed over the nineteenth century, Congress moved away from officer suits as a means of ensuring accountability of federal officers and compensation of persons harmed by official illegality. Further, in high stakes contexts for the young republic—wartime prize seizures and peacetime anti-piracy seizures—the Supreme Court did in fact apply immunity doctrines to protect officers and incentivize vigor. Finally, alien enemy disability to sue in U.S. courts during wartime must be acknowledged as a significant limit the protective reach of the officer damages suit. I conclude with thoughts about the implications of this somewhat revised view of the history of damages litigation against federal officers.
Tuesday, May 18, 2021
Today at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts: Intentional Torts to Persons. Reporters Ken Simons and Jonathan Cardi shepherded the project to completion; Ellen Pryor served as a Reporter from 2014-2015. The ALI's press release is here.
Friday, May 14, 2021
Philip Peters has posted to SSRN On the Cusp of the Next Medical Malpractice Insurance Crisis. The abstract provides:
Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.
How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.
The industry’s financial statistics today eerily resemble those leading into the 2002 crisis. However, some important differences also exist. Perhaps most importantly, the coronavirus pandemic introduces a variable that makes the current transition from a soft market to a hard one unique. In addition, industry representatives have recognized the signs of a hardening market earlier in the transition than they have in the past and that may enable them to engineer a less painful transition from a soft market to a hard one.
The stakes are high. After each of the three prior crises, physicians, hospitals, and insurers descended on state capitals and lawmakers responded with waves of restrictive tort reform.
This Article explains how we have come to sit on the cusp of a fourth medical malpractice crisis and examines the factors that will determine how soft our landing will be.
Wednesday, May 12, 2021
John Goldberg has posted to SSRN Taking Responsibility Personally: On John Gardner's From Personal Life to Private Law. He presented at the AALS Torts panel in January and the piece is forthcoming in the Journal of Tort Law. The abstract provides:
This essay, written for a panel honoring the late John Gardner, explores a tension in his book’s highly engaging and illuminating account of the relationship between “personal life” and “private law.” For the most part, the book sets out to explain how private law’s doctrines help us to act as we ought to act by reproducing, with greater specificity, the rules and norms of morality. At crucial moments, however, it suggests that private law serves its function by departing dramatically from morality. In particular, it argues that private law’s conferral of broad discretion on victims of legal wrongs to decide whether and how to pursue claims against wrongdoers has no moral counterpart. I suggest, to the contrary, that personal life does contain analogues to private law’s powers and liabilities. I further maintain that Gardner’s reluctance to recognize them reflects a problematic understanding of interpersonal responsibility as monadic answerability to reason rather than dyadic answerability to another.
Tuesday, May 11, 2021
Cathy Sharkey has posted to SSRN Public Nuisance as Modern Business Tort: A New Unified Framework for Liability for Economic Harms. The abstract provides:
This Article focuses on public nuisance’s innovative use as a means of recovering purely financial losses between non-contracting parties (i.e., “strangers”), in particular where the economic loss rule potentially bars recovery. The Article proposes a new approach to reconciling the torts of negligence and public nuisance, centered on the “channeling” or enforcement rationale: namely, deputizing a class of significantly impacted individuals or entities who can sue to force the tortfeasor to internalize the social costs of its activities. Where the prospect of physical bodily injuries and property damage is attenuated, this cost-internalization function is especially important to deter excessively risky conduct likely to lead to significant financial losses. Moreover, the calculus may be shifting in an age of global financial crises, escalation of digital and informational harms, and growing sense that the societal harms of the 21st century involve risky conduct leading to purely financial harms. Where there are diffuse, widespread harms raising concomitant concerns of under- and over-deterrence, a new “channeling” paradigm is necessary to guide courts in fashioning the metes and bounds of public nuisance as the quintessentially modern business tort of the 21st century.
Friday, May 7, 2021
Stephen James Bogle has posted to SSRN Private Law Theory and the Past. The abstract provides:
Private law theory plays a role (for better or worse) in the practice of law, whether that be in education or providing criticism, or contextualizing within a broader frame what private law does and why it does what it does. Yet some say that private law theory neglects history while others say that it does not fully capture history’s possibilities. In this paper, I explore what it means to use history in theorizing by exploring how analytical philosophy has engaged with history since the 1960s, suggesting three possible historical avenues of private law theory.
Monday, May 3, 2021
Ronen Avraham & Kimberly Yuracko published an important op-ed in The Washington Post late last week entitled "The use of race- and sex-based data to calculate damages is a stain on our legal system." Steve Lubet has more at The Faculty Lounge. In addition to the contribution of Judge Jack Weinstein, mentioned in the op-ed, Martha Chamallas and Jenny Wriggins have done significant work in this area.
Friday, April 30, 2021
Bob Rabin has posted to SSRN Stephen Sugarman and the World of Responsibility for Injurious Conduct. This piece is from a festschrift for Steve put on by the California Law Review. Bob also spoke yesterday at a moving celebration in honor of Steve's career. The abstract provides:
For a festschrift celebrating the scholarship of Professor Stephen Sugarman, I was asked to discuss his contributions to the area of accident law. Professor Sugarman’s published work runs across the spectrum of responsibility for injurer-based harm, embracing intentional misconduct, fault-based recovery, strict liability, no-fault compensation schemes, and social insurance. In addition to this wide-ranging and cogent analysis of approaches to liability and compensation, Sugarman has complemented his system-based work with perspectives from the vantage points of history, public policy formation, and jurisprudential assessment of tort and tort alternatives.
My coverage unfolds as follows. I begin with Sugarman’s landmark initial excursion into the world of tort law in which he advocated the replacement of tort with a social insurance scheme. Next, I discuss his more focused tort replacement studies in the world of no-fault liability. Then, I examine his critiques of tort doctrine and his interdisciplinary approaches to the system, which include historical and jurisprudential perspectives. I conclude on a personal note.