Category Archives: Torts

Should the Expectations of Consumers Matter?

Sep 27, 2022 Gregory KeatingTorts

Gregory Keating

In Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory, Mark Geistfeld advances a powerful, and often persuasive, challenge to the negligence-centered conception of product lability law advanced by the Restatement (Third) of Torts: Products Liability (1998). In the courts, the Restatement (Third) has provoked controversy, but in the Academy it has become the prevailing orthodoxy. Section 402A of the Restatement (Second) stated a strict liability conception of product liability. The Restatement (Third) takes manufacturing defects to be subject to strict (enterprise) liability, but it asserts that design and warning defects should be governed exclusively by negligence norms. In Strict Products Liability 2.0, Professor Geistfeld sets out to vindicate the view—officially subscribed to by the majority of state courts today—that product liability law is strict and that its strictness extends to cover design as well as manufacturing defects. Whereas the Restatement (Third) sees the strict liability rhetoric of courts as a mere cover for the negligence conceptions that do the real work, Geistfeld argues that courts have been speaking warranty conceptions all along and these warranty conceptions construct a strict liability body of law. His thoughtful, deeply meditated, paper ought to awaken the Academy from its dogmatic slumbers.

For Geistfeld, the issue of the strictness of design defect liability turns on the role played by consumer expectations in determining design defectiveness. Section 402A of the Restatement (Second) had defined a product defect in part as “a condition not contemplated by the ultimate consumer”. In a comment, the Restatement (Second) explained that the product “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Interpreting this language, many state courts had a adopted a “consumer expectation” test of product defectiveness, often in conjunction with a risk-utility test. In Barker v. Lull Engineering Co., for example, the California Supreme Court had articulated a products liability regime containing both risk-utility and consumer expectation tests of defective design. The Restatement (Third) rejects the “consumer expectation” test of product defectiveness “as an independent standard for judging” product design defects. In order to prove a product design defective, plaintiffs must show that the design fails a foresight-based “risk-utility” test. This requires proposing a “feasible alternative design” and proving both that this alternative design would have averted the harm to the plaintiff and that it balances product risks and benefits in a superior fashion. Continue reading "Should the Expectations of Consumers Matter?"

When Regulation Fails?: Public Nuisance Liability as Fallback Option or Policy Plan

Aug 12, 2022 Ellen BublickTorts

Ellen Bublick

On its face, there is a certain hypocrisy to the fact that governments permitted private parties to distribute massive amounts of opioids, stood on the sidelines as overuse and misuse created a deadly toll, and, only after the fact, sued for damages through torts like public nuisance. Why is it that after state legislatures fail to prevent public harms, state attorneys general can swoop in and collect big dollars on legal claims for harms done to the public?  And why do companies, through settlements, accede to attorneys generals’ demands?

In her thoughtful article, The Perils and Promise of Public Nuisance, Professor Leslie Kendrick explores public nuisance claims—claims for unreasonable interference with a right common to the general public. Kendrick pays particular attention to public nuisance actions in the opioid litigation. Kendrick identifies three main critiques of the public nuisance doctrine and then proceeds to dismantle each one. To traditionalists, who suggest that the public nuisance tort has extremely narrow contours, Kendrick outlines the robust history and scope of the tort, invoking no less than Blackstone, to show that the ancient tort was not so limited. Kendrick is undoubtedly right in this critique, as is evident from even a quick perusal of early torts treatises in the United States as well. Continue reading "When Regulation Fails?: Public Nuisance Liability as Fallback Option or Policy Plan"

Mass Tort Endgames

Jul 14, 2022 Alexandra LahavTorts

Alexandra Lahav

There are two strands of tort scholarship. One group, whom I will call “The Philosophers”, seeks to understand tort as an internal system. A second group, “The Institutionalists”, seek to understand tort law as part of the larger legal system that governs harms, in comparison to administrative agencies, criminal prosecutions, and bankruptcy. Lindsey Simon’s article, Bankruptcy Grifters, is an important contribution to this latter strand of scholarship.

Relying on meticulously researched case studies and a deep knowledge of bankruptcy law, the piece clearly explains the difficult and complex use of bankruptcy to resolve mass torts (a feat in itself) and sets an agenda for further research and policy proposals. It should be required reading for torts scholars who don’t much understand how bankruptcy has emerged as an alternative to the tort system and what this development means for the tort system, particularly mass torts which threaten to eclipse all of tort law by sheer numbers. Continue reading "Mass Tort Endgames"

Liability without Wrongdoing

Jun 17, 2022 Sandy SteelTorts

Sandy Steel

Rebecca Stone’s fascinating and superb Private Liability without Wrongdoing addresses a fundamental question: What is the relationship between moral wrongdoing and private law liability?

On the face of it, moral wrongdoing is neither necessary nor sufficient for private law liability in common law jurisdictions.

Not necessary, one might think, because exacting, objective, “reasonable person” standards result in liability when the legal duty-bearer could not have acted otherwise. Further, private law rights and duties are insensitive to background distributive injustice. Therefore, one might think that if a homeless person agrees to pay a high rent to a wealthy landlord for shelter, the homeless person would not morally wrong the landlord if the person breached the legal duty created by the agreement.

And, less disputably perhaps, moral wrongdoing is insufficient: adultery is plausibly morally wrong, but, these days, does not attract private law liability. Consider, too, the wrong of failing to conduct the easy rescue of a drowning stranger because of a concern for spoiling one’s new shoes. Such an omission is generally not actionable in the private law of common law jurisdictions.

How should a philosopher of private law respond to these facts? Continue reading "Liability without Wrongdoing"

Stability and Progress

Apr 8, 2022 Christopher J. RobinetteTorts

Christopher J. Robinette

The tension between stability and progress is an inherent feature of the common law. Stability in the law provides guidance to people in living their lives and reassurance that there is more to law than the personal preferences of those administering it. If, however, the law never changes with society, it will become ill suited to meet people’s needs. We know law changes over time, but how does it do so without being destabilizing?

Professors Kenneth Abraham and G. Edward White (hereafter “AW”) attempt to answer that question with regard to tort law in their latest book. AW present an illuminating study of legal change grounded in compelling tort history. The book is derived from five articles AW recently co-authored. Each article describes an episode of lost tort history that “departs from the principal focus of tort law scholarship over the last century, liability for accidental bodily injury and property damage.” (P. 3.) Two of the episodes are about tort law generally and three involve intangible harm. After publishing the articles, AW determined that a theme linked all five. Continue reading "Stability and Progress"

Facilitating the Information-Forcing Function of Tort Law

Mar 22, 2022 Nora Freeman EngstromTorts

Nora Freeman Engstrom

Most believe that tort law, at its root, is about dollars and cents. The defendant pays; the plaintiff pockets a specified sum. It is through this financial transfer that tort law’s broader aims—deterrence and compensation—are achieved. Yet, in Information for the Common Good in Mass Torts, recently published as part of the twenty-sixth annual Clifford Symposium, Elizabeth Chamblee Burch and Alexandra D. Lahav complicate that simple story. In the piece, Burch and Lahav argue that, besides damages, tort law very often involves the transfer of something just as valuable if less quantifiable: information.

To see tort litigation as a source of information is to see tort through a different lens. Seen through this lens, in fact, much of what we know—or think we know—about what tort law does or how it works becomes subject to reexamination. Continue reading "Facilitating the Information-Forcing Function of Tort Law"

Making Sense of Proximate Cause

Feb 8, 2022 Donal NolanTorts

Donal Nolan

Negligence poses special challenges for legal scholars and practitioners. The broad sweep of the cause of action is made possible by reliance on concepts that operate at a high level of abstraction. This explains why negligence is so adaptable, and hence so adept at responding to new social problems. But the use of abstract concepts also poses problems of understanding, and produces high levels of doctrinal instability. Few areas of negligence law illustrate the difficulties more graphically than the issue generally referred to in the US as ‘proximate cause’, and in the Commonwealth as ‘remoteness’ or ‘scope of liability’.

When faced with the difficulties that beset proximate cause, it is tempting for the torts scholar to throw up her hands in despair, or to dismiss the need for conceptual analysis, on the ground that ‘It’s all policy anyway’. But Mark Geistfeld is having none of it, and in this article, Proximate Cause Untangled, he sets himself the tough task of ‘untangling’ the doctrine. His analysis is illuminating and thought-provoking, and provides a plausible explanation for key features, not only of American law, but of the law of many Commonwealth jurisdictions. And while his core thesis is straightforward, his argument is so richly layered that even readers who are not persuaded by that thesis are bound to find much of value in his contribution. Continue reading "Making Sense of Proximate Cause"

Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law

Jan 3, 2022 Anthony SebokTorts

Anthony Sebok

Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions.

David Dana’s article offers a bold prescription to courts about how to approach public nuisance, including the opioid litigation. Dana’s argument should, in theory, make sense of November’s mixed bag of decisions. His argument operates at two levels, first about the relationship between public nuisance and democracy, and second about the specific wrongful conduct which the tort of public nuisance should address. Continue reading "Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law"

Seeing Negligence for What It Is

Nov 24, 2021 John C.P. GoldbergTorts

John C.P. Goldberg

1Ls are often taught that the tort of negligence differs from its counterpart in morality by not requiring blameworthy or culpable misconduct. As Holmes famously put it, whereas “the courts of Heaven” will make allowances for the defects of a “hasty and awkward” person, no such generosity is extended to defendants facing a negligence suit in a common law court. But is it correct to suppose that the moral wrong of negligence necessarily involves culpability or blame? In his marvelous essay Looking and Seeing, Professor Nico Cornell engages an array of recent work in the moral philosophy of negligence to argue, in effect, that Heaven’s courts are as demanding as their earthly counterparts.

Cornell begins with a discussion of Moore v. Dashiell, a run-of-the-mill, mid-twentieth century negligence suit. On a clear, dry day, Dashiell, driving his car, stopped to pick up two hitchhikers: Moore and a friend. Shortly thereafter, with Dashiell driving at a lawful speed on a straight and level road, the car struck a large mule. Moore was seriously injured and sued. At trial, Dashiell testified that, just before the collision, he was turning the dial on his car radio to find a station, but was looking at the road as he did. (There was no point in looking at the radio, he explained, because its markings did not accurately identify the wavelengths at which stations’ signals would be picked up.) He further testified that he saw two cars approaching from the other direction, but never saw the mule. Dashiell’s testimony notwithstanding, verdict was entered for Moore and the Maryland Supreme Court affirmed. Continue reading "Seeing Negligence for What It Is"

Accountability and Addictive Wrongs

Oct 26, 2021 Gregory KeatingTorts

Gregory Keating

In Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, Nora Engstrom and Robert Rabin set out to isolate the essential similarities and differences between the tobacco and opioids public health crises, and to extract lessons for future crises. In both the extent of the harm that they have done—and in their slow-motion train wreck extension across decades—both crises are vast. Indeed, they have lasted so long that they are part of the background noise of our lives. Yet, there is still shock value in Engsrom and Rabin’s short summaries of just how devastating these two crises have been—and still are. We all seem to have grown accustomed to appalling baseline levels of death and devastation. Engstrom and Rabin drive this point home simply and powerfully at the beginning of their fine article.

“Since 1999, opioids have claimed nearly 450,000 American lives, including nearly 50,000 in 2019 alone, dwarfing the carnage caused by either car crashes or gun violence. . .. Opioids are on track to claim the lives of another half-million Americans within the next decade. That’s like wiping out all of the men, women, and children in Atlanta in one fell swoop.” (P. 287.) Deaths “of course, only tell a sliver of the story. . . the lives of millions more are diminished and upended. Roughly, 2.1 million Americans suffer from an opioid-use disorder, over four million Americans misuse opioids each month, and an opiate dependent American child is born every fifteen minutes.” The economic costs of all this addiction and suffering are equally staggering; they are estimated to exceed “$500 billion annually, which works out to nearly 3% of U.S. gross domestic product.” (Pp. 287-88, emphasis in original.) Continue reading "Accountability and Addictive Wrongs"