TortsProf Blog

Robinette on Harmonizing Wrongs and Compensation

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I have posted to SSRN Harmonizing Wrongs and Compensation.  My contribution to the Maryland Law Review's Festschrift for Oscar Gray, the abstract provides:

In his seminal work, Tort Law in America, Ted White describes tort law as vacillating between a focus that is admonitory, based on conduct that is wrongful, and compensatory, providing the injured with resources to allay their injuries. Instead of continuing to vacillate between opposing theories of tort law, this article proposes to blend them. The concept is a tort law that is generally wrongs-based, but has a compensatory bypass.

There are two significant reasons to adapt compensation to a wrongs-based theory of tort law. First, incorporating compensation into tort law would match the motivations of many parties in the tort system and help improve its administration. I practiced tort law for seven years. Some of my clients were interested in vindication, but the majority were motivated by compensation, by which I mean they needed money to pay for their medical bills and/or lost wages. There is a problem, however, with sending both types of plaintiffs into the same tort system. Tort law, particularly negligence, is uncertain, and that uncertainty leads to delay and transaction costs. For plaintiffs interested in vindication, perhaps the time needed to pay close attention to facts and circumstances makes sense. After all, determining whether one has been wronged is a serious inquiry. Those features, however, are counterproductive to compensating the injured. Tort law that was able to vindicate rights in proper cases, but also efficiently compensate in others, would be ideal.

Second, history demonstrates that waves of injuries pressure tort law, and the law responds in a compensatory manner. It is foreseeable that injuries will continue to pressure tort law, and it makes sense to incorporate a mechanism to handle that pressure. Moreover, history provides guidance about the likely character of a compensatory bypass: compensation would become easier to obtain, but in smaller amounts.

Perry on the Unidentified Wrongdoer

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Ronen Perry has posted to SSRN The Unidentified Wrongdoer.  The abstract provides:

The Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, indirect liability of a third party with some control over the unidentified wrongdoer’s conduct, residual indirect liability, and no causation-based liability.

Part II turns to an economic appraisal of the competing models. It argues that in tailoring solutions to strong unidentifiability problems lawmakers should focus on four types of costs: (1) the cost for the victim of identifying the unknown wrongdoer using advanced procedural tools, (2) the cost for a third party of obtaining and retaining information about the wrongdoer’s identity, (3) the cost (and expected impact) of precautions a third party could take to reduce the likelihood of the wrongdoing, and (4) the cost of non-enforcement.

Part II then outlines the selection principle, explains that its application is context, jurisdiction, and time-specific, and applies it to four common cases of strong unidentifiability: intentional violations of bodily integrity, life, or liberty by unknown perpetrators, injuries caused by defective products whose manufacturers are unidentified, anonymous online wrongdoing, and hit-and-run accidents.

Festschrift for Oscar Gray

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The Maryland Law Review has published "A Torts Festschrift for Oscar Gray."  Contributors include Ken Abraham & Ted White, Mark Geistfeld, Don Gifford, Mike Green & James Sprague, and me.  

Justifying Private Rights

Simone Degeling, Michael Crawford, and Nicholas Tiverios have published Justifying Private Rights by Hart Publishing.  The blurb provides:

Many of the most influential contributions to private law scholarship in the latter part of the twentieth century go beyond purely doctrinal accounts of private law. A distinctive feature of these analyses is that they straddle the divide between legal philosophy, on the one hand, and the sort of traditional doctrinal analysis applied by the courts, on the other. The essays contained in this collection continue in this tradition. The collection is divided into two parts. The essays contained in the first part consider the nature of, and justification for, private rights generally. The essays in the second part address the justification for particular private law rights and doctrines. Offering insightful and innovative analyses, this collection will appeal to scholars in all fields of private law and legal theory.

Feb 2021   |   9781509931958   |   296pp   |   Hbk   |    RSP: £80  

Discount Price: £64

Order online at www.hartpublishing.co.uk – use the code UG7 at the checkout to get 20% off your order!

Robinette on Long on IIED

Over at JOTWELL Torts, I review Alex Long's Using the IIED Tort to Address Discrimination and Retaliation in the Workplace.

Mullenix on Reviving a Mass Tort Litigation for Guns

Linda Mullenix has posted to SSRN Outgunned No More?  Reviving a Firearms Industry Mass Tort Litigation.  The abstract provides:

In November 2019, the United States Supreme Court denied certiorari in Remington Arms Co. v. Soto, on appeal from the Supreme Court of Connecticut. In so doing, the U.S. Supreme Court let stand the Connecticut court’s determination that plaintiffs in gun litigation arising out of the 2012 Sandy Hook elementary school massacre could litigate wrongful death claims under Connecticut consumer protection and unfair trade practice statutes. In making that determination, the Connecticut Supreme Court held that the federal Protection of Lawful Commerce in Arms Act (PLCCA) did not preempt the plaintiffs’ claims under state law. The Connecticut court decided that the plaintiffs’ claims came within PLCCA’s third exception to immunity, the so-called “predicate statute” exception. The Remington Arms litigation is important because it may signal a pathway for further firearms litigation against gun defendants in other states pursuant to state consumer and unfair trade practice statutes. This article assesses whether the Remington Arms precedent provides a possibility for reviving a firearms mass tort litigation, which possibility receded in the decade after congressional enactment of PLCCA. Evaluated in the context of well-known hallmarks of developing mass tort litigation, a firearms mass tort remains in a very nascent stage in the life cycle of mass tort litigation. It remains to be seen whether litigation against the gun industry will gain renewed traction as a consequence of the Connecticut Remington Arms litigation.

Robinette & Costa on Section 230

Shannon Costa and I have posted to SSRN Incorporating an Actual Malice Exception to Section 230 of the Communications Decency Act.  The essay is from Southwestern's "New Frontiers in Torts:  The Challenges of Science, Technology, and Innovation" symposium last February.  The abstract provides:

In an initial attempt to shield minors from pornography, Congress enacted the Communications Decency Act (CDA) of 1996. An amendment to the CDA, codified as section 230, originally was designed to encourage web-related defendants to self-regulate by shielding “Good Samaritan” websites from liability. Courts have interpreted the section broadly, creating almost complete civil immunity for interactive computer services (ICS) for the statements of their users—regardless of whether they would have been “publishers or distributors” at common law. Despite the good intentions behind section 230, the broad immunity that it has provided ICSs ultimately prevents holding ICSs accountable for their wrongful behavior: not only defamation, but also conduct such as malicious catfishing.

For at least fifteen years, commentators have proposed amending section 230, but, other than one limited exception, Congress has yet to take action. Recent political attention to section 230, however, provides an opportunity for reform, and this essay proposes such a reform. Although two reform proposals have received a lot of attention—the repeal of section 230 and a “notice-and-takedown-procedure”—we have concerns about both.

Instead, this essay proposes applying the actual malice standard to torts committed by ICSs in a distributor capacity. Expanding an earlier proposal, we would apply actual malice in all cases against ICSs acting as distributors. Moreover, we would apply the actual malice standard to torts beyond defamation. Thus, if an ICS were engaged in tortious conduct involving knowledge or reckless disregard for the truth, the ICS would be accountable. The actual malice standard holds web-related defendants accountable for egregious harm, while protecting them from overly burdensome liability.

Crocker on Reforming Immunity

Katherine Mims Crocker has posted to SSRN Qualified Immunity, Sovereign Immunity, and Systemic Reform.  The abstract provides:

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s death last summer. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in American law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The present moment offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that we should refocus the conversation by reconsidering other aspects of the constitutional-tort system—especially sovereign immunity for government entities—too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.

This Article recommends an incremental yet systemic reform strategy, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity falls hardest on populations that suffer a disproportional share of constitutional harm, including communities of color for police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses will not wreak havoc on individual or government finances, the judicial system, or substantive rights.

Wansley on Liability for Autonomous Vehicles

Matthew Wansley has posted to SSRN The End of Accidents.  The abstract provides:

In the next decade, humans will increasingly share the roads with autonomous vehicles (AVs). The deployment of AVs has the potential to dramatically reduce the frequency and severity of motor vehicle crashes. Existing liability rules give companies developing AVs insufficient incentives to develop that potential. Data from real-world autonomous driving indicates that today’s most advanced AVs rarely cause crashes, but often fail to avoid preventable crashes caused by other road users’ errors. A growing number of scholars have proposed reforms that would make it easier for plaintiffs injured in crashes with AVs to hold AV companies liable. These reform proposals either ignore the issue of comparative negligence or would preserve some form of the defense. If AV companies avoid liability for crashes in which a human road user was negligent, they will not invest in developing technology that could prevent those crashes. This Article proposes a solution: AV companies should be held responsible for all crashes in which their AVs come into contact with other vehicles, persons, or property—regardless of fault, cause, or comparative negligence. Contact responsibility would cause AV companies to internalize the costs of all preventable crashes and lead them to make all cost-justified investments in developing safer technology. Crashes would no longer be treated as regrettable but inevitable accidents, but as engineering problems to be solved.

Engstrom & Rabin on Public Health by Litigation

Nora Engstrom & Bob Rabin have posted to SSRN Pursuing Public Health Through Litigation:  Lessons from Tobacco and Opioids.  The abstract provides:

Over the past half-century, product-related public health crises have claimed millions of American lives. Two of these crises have been especially prominent: tobacco and opioids. In this Article, we zero in on both controversies. Like many before us, we trace how these two addictive and deadly products became widely used by the American public and analyze the myriad ways in which the products—cigarettes and prescription painkillers—are similar. From there, however, we part ways with previous analyses, as we look beyond these surface similarities to the many ways tobacco and opioids are markedly different from one another. This analysis of differences—focusing on the products’ substitutability, social utility, and price sensitivity—ultimately underscores the crushing, and easily underestimated, challenges policymakers face, to the extent they try to curb the opioid epidemic using tried-and-true supply-side mechanisms. We then turn from the crises themselves to the litigation each has generated. From a distance of two decades, we tally the successes and failures of tobacco litigation—which began in the 1950s and crested in the late 1990s—and analyze how that mixed scorecard has informed, and, going forward, ought to inform, the sprawling opioid litigation: the most complex civil action ever tackled by any American court. Finally, moving beyond this comparative analysis, we address both the future and the utility of public health litigation. Many have asked: What is the role of litigation when it comes to promoting public welfare? Harnessing lessons from both tobacco and opioids, our answer to that question offers new insights for how tort litigation complements—and, under certain conditions, can catalyze—broader regulatory strategies.

FL Enacts COVID-19 Immunity

On Monday, Florida became the most populous state to enact COVID-19 immunity.  The law is similar to those passed in other states.  Among other entities, it covers corporations, hospitals, nursing homes, government entities, schools and churches.  There is an exception for gross negligence or intentional conduct.  Law 360 has the story.

NYC Eliminates Qualified Immunity for Police Officers

Last week, the New York City Council enacted legislation eliminating qualified immunity as a defense for city police officers when sued under the new local statute.  Qualified immunity remains a defense if an officer is sued under federal or state statutes.  CBS News has the story.

AALS Torts Section Calls for Newsletter Items and Prosser Award Nominations

We are writing as the Secretary and Treasurer of the
AALS Torts & Compensation Systems section to pass along two important
notices.

*1. Torts and Compensation Systems Section Newsletter*

As most of you know, our section publishes a newsletter each fall listing:
(1) symposia related to tort law; (2) recent law review articles on tort
law; (3) selected articles from Commonwealth countries on tort law; and (4)
books relating to tort law. If you know of any works that should be
included in this year's newsletter, please forward relevant citations and
other information to [email protected]. The deadline for
inclusion in this fall's newsletter is Friday, August 20, 2021.

*2. 2022 William L. Prosser Award*

This is the first call for nominations for the 2022 William L. Prosser
Award. The award recognizes “outstanding contributions of law teachers in
scholarship, teaching and service” in torts and compensation systems.
Recent recipients include Jack Weinstein, Anita Bernstein, Ken Simons,
Marshall Shapo, Steve Sugarman, Aaron Twerski, Mike Green, James Henderson,
Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray,
and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex
Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the
award. Nominators can renew past nominations by resubmitting materials.
Living tort scholars and those who have passed away within the last five
years are eligible for the award. Selection of the recipient will be made
by members of the Executive Committee of the Torts & Compensation Systems
section, based on the recommendation of a special selection committee. The
award will be presented at the annual AALS meeting in Washington, D.C. in
January 2022.

Nominations must be accompanied by a brief supporting statement and should
be submitted no later than Friday, July 16, 2021. Please email submissions
to Elizabeth Weeks, [email protected].

Best Regards,
Nora Freeman Engstrom & Elizabeth Weeks

PA: Joint and Several Liability Still Applies if Plaintiff Is Not Negligent

In 2011, the Pennsylvania General Assembly altered the common law rule of joint and several liability with the Fair Share Act.  That Act restricted joint and several liability to intentional torts or misrepresentations, the release or threatened release of certain hazardous substances, serving alcohol to a visibly intoxicated patron, and, most importantly, to defendants who were found to be 60% or more responsible for the tortious injuries of the plaintiff.  Last week, the Superior Court ruled that the Fair Share Act does not apply in cases in which the plaintiff is not found to be contributorily negligent for her own injuries.  In other words, for wholly innocent plaintiffs, joint and several liability remains in place.  (The opinion is here:  Download KEITH SPENCER Appellant v CLEVELAND JOHNSON TINA GAINER JOHNSON AND PHILADELPHIA)  This argument was put forth by Widener alums Scott Cooper & Lara Antonuk is their contribution to Widener's Mass Tort Litigation symposium in 2013.  (The article, check particularly footnote 143, is here:  Download Cooper-antonuk---ready-for-pub.-6.18.14)

Goldberg & Zipursky on Public Nuisance and Opioid Litigation

John Goldberg & Ben Zipursky have posted to SSRN Opioid Litigation and the Law of Public Nuisance:  A Preliminary Assessment.  The abstract provides:

In recent years, states and cities have filed civil actions against manufacturers and distributors of prescription opioid medications seeking, among other things, reimbursement for the cost of treating individuals who suffer from addiction, overdoses, and related illnesses. In many respects, these suits have followed the pattern set by suits against tobacco companies, as well as gun and paint manufacturers. This Article focuses on one of the most striking similarities: the plaintiffs’ aggressive invocation of the law of public nuisance as a basis for liability.  The question we explore is whether the plaintiff-entities can rely on public nuisance as a ground for prevailing and recovering damages. We conclude, preliminarily, that these suits should fail because they do not fall within the concept of public nuisance as courts have deployed it, and because the admittedly grave problems they aim to address are of a very different kind than those which the law of public nuisance is well-suited to address. In arguing for these conclusions, we do not deny—as some scholars have—that public nuisance is a tort. Rather, we maintain, primarily, that the entities have not alleged the kind of interference with a right common to the public that is required for the commission of this tort. Of course, even if we are correct to conclude that the plaintiffs’ public nuisance claims fail, the opioid defendants might well face liability on other claims brought by these claimants, or on behalf of individuals who have suffered physical injury as a result of becoming addicted to opiate-based medications have tort claims against the manufacturers, prescribers, or retailers of those drugs.  While our analysis of public nuisance tort liability might strike some as “formalistic” in a pejorative sense, we maintain that in-depth doctrinal analysis should not be mistaken for out-of-touch conceptualism. Part of what makes the common law valuable and adaptive is that it has some content and structure. If it did not, it would not qualify as law at all. Our contention is that, notwithstanding the breadth of the public nuisance tort, it is not capacious enough to absorb claims by cities and states seeking compensation for the concededly urgent harms associated with the opioid crisis. To burst the seams of the legal framework while pretending one has remained within it is to lose the institutional stability that renders tort law a form of law and that helps to sustain the authority of judge-fashioned bodies of law. Perhaps some courts will decide this is worth doing. Our point is that, in so far as they do, they probably are exceeding the bounds of ordinary common law reasoning, even on a capacious understanding of it.

NM: Med Mal Noneconomic Damages Cap Is Constitutional

Yesterday, the New Mexico Supreme Court unanimously ruled that the state's $600,000 noneconomic damages cap in med mal cases does not violate the constitutional right to a jury trial.  The Los Alamos Daily Post has the story.

Swan on Tort Law and Feminism

Sarah Swan has posted to SSRN Tort Law and Feminism.  The abstract provides:

Tort law has not been a sympathetic audience for feminist legal scholars. Despite decades of compelling feminist advocacy and scholarship, tort law has largely resisted attempts to orient it towards pursuing goals of social justice or equality. Nevertheless, some feminist redirection has been achieved, mostly through statutory intervention, thus laying the groundwork for further development. This chapter imagines what tort law might look like if it more fully embraced feminist reforms. Focusing on four foundational concepts in tort law – duty, third-party liability, harm, and damages – this chapter uses the tools, insights, and arguments of modern feminist tort scholarship to envision the doctrinal landscape of a tort law rooted in gender justice and social equality. Noting the places where feminist paths have already been forged, this chapter explores how reconceptualizing the duty of care, expanding third-party liability, recognizing a broader range of intimate and harassment-based harms, and eliminating gender and racial bias from damage awards could transform tort from an instrument that perpetuates existing social inequalities into a mechanism of social justice offering recompense and remedy to all who are wrongfully injured.

The piece is forthcoming in Oxford Handbook on Feminism and the Law in the U.S. (Deborah L. Brake, Martha Chamallas & Verna Williams, eds) (2021).

JOTWELL Torts: Engstrom on Campbell et al. on Voir Dire

At JOTWELL, Nora Engstrom reviews the piece An Empirical Examination of Civil Voir Dire:  Implications for Meeting Constitutional Guarantees and Suggested Best Practices by John Campbell et al.

VA: Bill to Eliminate Med Mal Cap Fails

Virginia has a cap on total (not non-economic) damages in med mal cases of $2.45M.  A bill to eliminate that cap didn't make it out of the Senate Judiciary Committee before the legislative session ended last month.  Law360 has details.

Rapp on Tort Law, LGBTQ+ Rights, and Obergefell

Geoffrey Rapp has posted to SSRN LGBTQ+ Rights, Anti-Homophobia and Tort Law Five Years After Obergefell.  The abstract provides:

Tort law’s intersection with the rights of members of minority and historically oppressed groups is complicated, and its status as an instrument for the advancement of rights tenuous. Tort law embraces a “reasonable person” analysis, with tort liability is circumscribed by the attitudes, impressions, beliefs, knowledge, and understanding of the fictional average member of “the community,” and reaches for majoritarian sensibilities to regulate human interaction. Tort law is also shaped by the common law process, and can be slow to evolve to changes in social structures, patterns of human relations, and the needs of members of growing minority groups that have not achieved dominant status. On the other hand, because of the evolving content of reasonableness and the common law process, tort law is equipped to change as society changes.This paper considers how tort law responded to a distinctive and powerful exogenous shock – the Supreme Court’s landmark 2015 decision prohibiting the restriction of same sex marriage, Obergefell v. Hodges.