Category Archives: Torts
Jan 10, 2014 Anthony SebokTorts
Nils Jansen, The Idea of Legal Responsibility, O.J.L.S. (forthcoming, 2014) available at SSRN.
Prof. Nils Jansen’s new article, The Idea of Legal Responsibility, is an ambitious work of tort theory. Jansen engages some of the most basic questions of private law. The article’s rewards are found on two levels. First, the argument it propounds—that responsibility in tort can be usefully (if not exclusively) framed in terms of restitution– is intriguing and offers another take on corrective justice. Second, the framework around which Jansen builds his argument – the evolution of the law of restitution in scholastic and early modern European private law– is one that may be unfamiliar to many common lawyers. Jansen’s article make a persuasive case that contained within this history are lessons that transcend the common and civilian divide.
Professor Jansen’s thesis is deceptively simple: He argues that the best justification for tort liability in many modern legal systems on both sides of the Atlantic is a principle of “responsibility” that has its roots in the doctrine of unjust enrichment. Early in the article Jansen asserts that the question that all tort theorists in both the common law and civilian legal cultures must answer is, “why be responsible for another’s loss” and that the answer to this question lies in the “moral principle against unjust enrichment” (P. 3). Yet by the end of the article, Jansen restates his position so that it seems that unjust enrichment is useful today because it helps illustrate the “constitutionalisation” of tort law, a modern phenomenon where the priority of basic human rights determines the variety of tort doctrines that dominate today’s legal landscape. This tension is interesting and worth considering. Continue reading "Why Answer?"
Nov 26, 2013 Catherine SharkeyTorts
Thomas Merril and David Schizer—a property law theorist and tax law expert— deliver an ostensibly new framework for analyzing tort liability-regulation tradeoffs, standing on the shoulders of the pioneer in this area in the 1980s, Steven Shavell. In The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, Merrill and Schizer offer a fairly modest strategy for regulating water contamination from hydraulic fracturing (also commonly known as “fracking”), a practice that is “transforming the energy landscape of the United States.” But their proposals lay the groundwork for a more ambitious project: to reassess the balance between tort liability and regulation in areas that pose emerging, and incompletely understood, health and safety risks. Fracking exemplifies the widespread trend of new, controversial practices with highly uncertain risks. Tort law emerges as a backstop to best practices regulation: tort liability rules provide “a form of protection for those injured by technological innovations, while information gradually accumulates that may eventually lead to more protective ex ante regulation.”
Hydraulic fracturing is a controversial process whereby energy companies pump fluid into shale formations at high pressure to crack the rock and release the gas and oil trapped inside. Merrill and Schizer are not shy about their overall support for the “fracturing boom,” which holds the potential to “increase the competiveness of the United States in the global economy, reduce our reliance on energy imports and enhance our energy security.” At the same time, they acknowledge the potentially high price of fracking: increased air pollution, traffic and congestion (all risks associated with conventional oil and gas drilling) and, most significantly, potential contamination of groundwater (a unique risk associated with fracturing). Continue reading "Tort as Backstop to Regulation in the Face of Uncertainty"
Oct 28, 2013 John GoldbergTorts
Scott Hershovitz, Tort as a Substitute for Revenge, in Philosophical Foundations of the Law of Torts (John Oberdiek ed., forthcoming 2014) available at SSRN.
Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.
In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice. Continue reading "Did You Get The Message"
Sep 27, 2013 Gregory KeatingTorts
Sean Hannon Williams’ Lost Life and Life Projects tackles “wrongful death damages from the perspective of individual justice accounts of tort law.” Wrongful death damages—or, more accurately, their inadequacy—have long troubled tort scholars. Lately, as Williams shows, their shortcomings have been a particular sore point for economically oriented tort scholars.
The early common law of torts did not recognize any damages at all for wrongful death. Tort actions were personal and they died with the victim. Legislatures soon responded to this gap by passing two different kinds of statutes. One kind—survival statutes—enabled the estates of those wrongfully killed to recover the damages to which the dead would have been entitled had they not died (e.g., damages for medical treatment prior to death). The other kind—wrongful death statutes—addressed relational harm. Wrongful death statutes permit intimate relatives of the victim to recover for harm that they have suffered from her death (e.g., loss of financial support). Neither statute addressed the harm to the victim of her own premature, wrongful death. Only recently has there been any movement to remedy this gap by awarding damages for the victim’s lost “enjoyment of life.” Williams’ project is to bolster the case for such damages, in the name of justice to those who have lost their lives. Continue reading "Redressing the Harm of Death"
Aug 12, 2013 Ellen BublickTorts
Gideon Parchomovsky and Endre Stavang, Contracting Around Tort Defaults: The K4K Principle and Accident Costs (working paper, 2013), available at Docstoc.
When two sophisticated parties jointly decide that, in the case of accident, each will bear its own costs and insure against its own losses, why should anyone care? The Restatement Third of Torts, for one, does not. Restatement Third of Torts: Apportionment of Liability §2 (1999) (“When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm.”). In their article, Contracting Around Tort Defaults, Gideon Parchomovsky and Endre Stavang, however, sound a cautionary note about potential social costs of private contractual agreements to opt out of tort liability. If potential tort liability prods actors to adopt socially optimal levels of precaution, when parties disclaim that liability through contract, will actors “under-invest in precaution and fall short of the optimal level of care,” with deleterious impacts not on the contracting parties themselves but on third parties? In short, will we have less tort liability but more tort?
The backdrop for Parchomovsky and Stavang’s question is an important one—oil and gas industry contracts that pervasively opt out of the tort system through a broad system of exculpatory agreements, sometimes referred to as “knock for knock” clauses. Courts determining the applicability of these agreements often focus their inquiries on the intent of the contracting parties to waive liability for negligence. Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789 (Tex. 2012), opinion supplemented on reh’g (Mar. 29, 2013) (“In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument.”) Parchomovsky and Stavang’s critique suggests that the effects of waivers on nonparty potential victims should also be taken into account. Could the industry’s pervasive system of exculpatory clauses, which ensures that liability falls short of even the cost of physical harms from negligently caused accidents, have caused insufficient industry precautions and led to major accidents like the Deepwater Horizon spill? While the authors don’t offer a definitive answer, they do identify the potential for industry contracts to result in moral hazard problems and suboptimal precautions which increase hazards to third persons. Continue reading "Avoiding Liability But Not Tort"
Jul 12, 2013 Martha ChamallasTorts
Recently, there has been a flowering of family law scholarship critically examining what Janet Halley calls “family law exceptionalism,” the tendency in the law to treat the family as a special realm wholly divorced from market relations and to steer family matters, regardless of their economic nature, into family law. Although she never uses the term “family law exceptionalism,” Elizabeth Porter’s new article on parental immunity and negligent supervision cases follows in this vein. The article is an indictment of what she regards as the exceptionally favorable treatment of parents under current tort law. Professor Porter argues for ending the special rules favoring parents, applying ordinary negligence principles in parental liability cases, and ultimately sending more cases to the jury.
As Porter reminds us, it is a particularly appropriate time to re-examine the rules governing parental liability. On the cultural front, the steady stream of tragic cases (whether Newtown, Columbine or countless accidental shootings) has reignited perennial questions about the extent of parental responsibility to control dangerous children and whether parents should be held accountable to victims for their failures as parents. On the doctrinal front, the new approach to duty endorsed by the Restatement (Third) of Torts—which calls for presuming a general duty of care and abandoning that presumption only in exceptional cases when there are strong countervailing reasons of principle or policy— has the potential to reopen questions about the scope of parental liability.. Porter’s article suggests that if courts heed the Third Restatement they may well conclude that parental liability cases are not so exceptional after all, ushering in what would be a major, very concrete change in tort doctrine. Continue reading "The Exceptional Case of Parental Negligence"
Jun 10, 2013 Scott HershovitzTorts
Every year, I ask the students in my torts class whether any of them came to law school because they wanted to practice tort law. So far, only one has said yes. And she planned to join her father’s personal injury practice, so that was something of a special case.
This is not surprising. An awful lot of my students do not know what tort law is, at least not at the start. And those that know what tort law is tend to associate it with the lawyers that advertise on late-night television. Though most first-year students do not know what they want to do, they do know that they do not want to be one of those lawyers, whom they take to occupy the bottom rung of a profession that is not held in all that high esteem anyway. It is a constant struggle to get my students to see that there is more to tort law than those late-night lawyers.
But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are worth. And perhaps most important, they increase access to justice, offering representation to clients with meritorious claims who would otherwise not seek lawyers or find ones willing to pursue their low-value claims. Continue reading "Late-Night Law Firms"
May 6, 2013 Nora EngstromTorts
Joanna Shepherd, Justice in Crisis: Victim Access to the American Medical Liability System, Emory Legal Studies Research Paper 12-222 (2012) available at SSRN.
When we think about access to justice, we don’t tend to think about personal injury victims. Indeed, I recently completed a review of legal needs surveys from seventeen states, conducted between 2007 and 2012. Attempting to measure the citizenry’s “level of access to the civil justice system,” the surveys generally asked about all manner of legal issues: consumer problems, housing problems, health problems, employment problems, family problems, and problems obtaining public benefits. Yet out of these seventeen studies, only four inquired about accidents.
Why this omission? It’s not that accidental injuries are too rare to merit inclusion. To the contrary, Deborah Hensler’s classic work, Compensation for Accidental Injuries in the United States, shows that accidents happen with unnerving frequency. Roughly one in six Americans sustains an accidental injury that results in measureable economic loss each year, and some accidents are serious. One-third of accident victims’ injuries impose “significant costs on them and on society.” Likewise, Barbara Curran’s groundbreaking 1977 study, The Legal Needs of the Public, found that “tort problems” (including those involving property damage) were more common than problems involving marital issues, job discrimination, wage collection, landlord-tenant disputes, and other consumer problems, combined. Continue reading "Bridging the Gap in the Justice Gap Literature"
Apr 19, 2013 Benjamin C. ZipurskyTorts
Nancy Moore’s Intent and Consent in the Tort of Battery: Confusion and Controversy is something every Torts professor should read. This is not only because it is interesting and well written and engages with canonical cases. It is also because it will teach many professors to question something they thought they knew: the meaning of “intent” in the tort of battery. While the references to Vosburg and the Restatement (Second) on battery may seem a bit old-fashioned to some, such a judgment would be ill-founded. Many aspects of battery law are ambiguous, incoherent, vague, and contradictory; moreover, from informed consent in medical malpractice to unwanted touchings in sexual harassment to the ever-spreading role of comparative fault, it is no longer adequate to pretend that intentional tort law can reasonably be relegated to the subject of schoolboy pranks.
While Moore discusses both intent in battery and (relatedly) the interplay of intent, consent, and mistaken defendant beliefs about consent, the lion’s share of her attention goes to intent itself. Restatement (Second) § 13(a) requires a plaintiff bringing a battery claim to show that the defendant acted “intending to cause a harmful or offensive contact with the person of the other or a third person.” According to Moore, courts have disagreed over the scope of this phrase, and, in particular, over whether it is sufficient that the defendant have intended to make contact (so long as that contact does turn out to be harmful or offensive), or whether it is necessary that the defendant have intended to make contact and have intended to harm or offend the plaintiff. She calls the former the “single intent rule” and the latter the “dual intent rule.” Continue reading "Moore on Intent and Battery"
Apr 3, 2013 Keith HyltonTorts
With such a title, how could a tort scholar not want to read the new working paper by Laposata, Barnes, and Glantz? The Restatement plays a very prominent role in tort law; many courts cite its provisions. The thought that the tobacco industry may have influenced its development is unsettling.
The authors present a fair amount of worrisome evidence of efforts by tobacco lawyers to influence the Restatement, especially the Second Restatement, under the direction of Reporter William L. Prosser. The evidence is largely circumstantial. Drafts of various parts appear to change after tobacco lawyers intervene. The final draft of Restatement §402A, on products liability, includes an explicit exemption for “good tobacco.” Continue reading "Lobbying and the Restatement of Torts"
