Category Archives: Torts
Dec 10, 2020 Jennifer WrigginsTorts
Merle H. Weiner,
Civil Recourse Insurance: Increasing Access to the Tort System for Survivors of Domestic and Sexual Violence, 62
Ariz. L. Rev. 957 (2021), available at
SSRN.
The U.S. torts system features a large gap between intentional tort doctrine and actual remedies for intentional torts. Doctrine pronounces many injuries tortious and compensable—intentional torts including domestic violence and sexual violence are widespread—yet civil lawsuits for these torts continue to be rare. The reasons for this gap are not a mystery; they all relate to money. Merle Weiner’s important and well-researched article takes effective aim at this situation, meshing insights from civil recourse theory about the purpose of the torts system with empirical information about what survivors of these torts actually want (hint: it’s mostly not money). She uses these insights to shape the idea of a new type of insurance, ‘civil recourse insurance,’ that would much better support the purposes of the tort system and survivors’ goals than the current torts enforcement structure. Civil recourse insurance would be a type of legal expense insurance and would provide a policyholder with legal representation when a covered incident occurs.
The article takes civil recourse theory seriously in its assertions that the overarching purpose of tort law is to further accountability, empowerment, respect, deterrence, and even at times revenge, rather than to provide financial compensation. She applies these theses to the situation of domestic violence and sexual abuse survivors. For the most part, victims of these wrongs do not seek financial compensation. Instead, they more often seek accountability, empowerment, recognition, respect and deterrence. These kinds of remedies are not provided by the torts system as it exists because it is enforced by lawyers who seek financial compensation under contingent fee agreements requiring either insurance coverage or assets to make litigation worthwhile. Insurance exclusions for intentional acts, coupled with judgment-proof defendants, make tort litigation for these wrongs impracticable in our current system. But legal actions seeking accountability, empowerment, respect and deterrence would be possible under Weiner’s proposed ‘civil recourse insurance.’ The policyholder may want to file a lawsuit even if it will be uncollectible; may want assistance participating in the criminal justice system; or may want to have her or his harm recognized in a way that acknowledges wrongdoing. This new kind of insurance, modeled on a popular and successful type of insurance held by 40% of German households, would provide insureds with the resources to pursue these forms of recourse. Continue reading "Intentional Tort Remedies Grounded in Civil Recourse Theory: How Torts Can Fulfill its Promises Through a New Kind of Insurance"
Nov 4, 2020 John C.P. GoldbergTorts
Unlike its counterpart at the local IHOP®, the menu of standard tort remedies makes for a quick read. There are damages (in several ‘flavors’), injunctions (typically ordering a halt to tortious activity), declaratory judgments, and … that’s about it. In her fascinating and provocative article The Knowledge Remedy, Alexandra Lahav advocates for a new item to be included in the injunctions portion of the menu. In certain toxic tort cases, she maintains, courts can and should order a defendant to cover the cost of independent research designed to determine whether a substance for which it is responsible is capable of causing the type of injury for which the plaintiff is suing.
Lahav’s opening example, based on an actual case, conveys the basic idea. A farmer notices that his once healthy livestock are dying, as are some local, furry woodland creatures. The farmer has his suspicions. It was not so long ago that a nearby factory commenced operations, and it was only a little after that that the creek that runs through the farm, and from which the critters drink, began to foam up in an odd way. And so the farmer hires a lawyer, who sues the factory’s owner for private nuisance and obtains evidence that the factory has been dumping into the creek a chemical compound that was never vetted for safety by the EPA. Eventually, the litigation settles. In addition to agreeing to install filters, the owner agrees to fund scientific studies to determine what sorts of illnesses in animals and humans the compound is capable of causing. Continue reading "Remedies as a Remedy for Uncertainty"
Aug 31, 2020 Gregory KeatingTorts
In Reconceptualising Strict Liability for the Tort of Another Christine Beuermann—a Lecturer in Law at the University of Newcastle—shines new light on strict liability for the wrongdoing of others. In the United States, we generally classify these as vicarious liabilities and non-delegable duties, and we usually conceptualize them in terms of the liability of principals for the acts of their agents. Perhaps surprisingly, these liabilities are at once ancient, very active at present, and poorly understood. Professor Beuermann’s book supplies a badly needed, original, and illuminating framework for thinking about these forms of liability. The book both offers an answer to longstanding theoretical puzzles, and guidance in deciding cases that presently vex the courts. It repays a reader’s careful study by reorienting the reader’s thinking.
Vicarious liability may well be the oldest form of tort liability extant in contemporary tort law. Legal historians often trace it back to Roman law, which held masters liable for the legal wrongs of their slaves, husbands liable for the wrongs of their wives, and fathers liable for the wrongs of their children. Blackstone distanced himself from Roman law’s instantiations, but he saw in them the roots of a more modern and general liability of masters for the torts of their servants. Over time, that liability transformed into the liability of employers for the torts of their employees committed within the scope of their employment. If the broad outlines of the history are clear, both the doctrine and the justification are not. Oliver Wendell Holmes thought that vicarious liability was wrong in principle, if too entrenched to uproot. Modern corrective justice theorists also tend to see the doctrine as anomalous because it is not fault-based. Other contemporary scholars have been more receptive to justifying the doctrine by reference to policies of accident prevention and loss-spreading, or by reference to “a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” Whatever their virtues, these justifications have not been particularly helpful to courts struggling to decide the wave of sexual assault cases that have recently arisen. Why, exactly, is sexual assault a characteristic risk, say, of being a teacher but not of being a school janitor? Continue reading "Authority, Vulnerability, and Strict Liability"
Jul 27, 2020 Kenneth W. SimonsTorts
Kenneth S. Abraham & G. Edward White,
Conceptualizing Tort Law: The Continuous (and Continuing) Struggle __
Maryland L. Rev. __ (forthcoming 2020), available at
SSRN.
Like Gaul, tort law is divided into three parts: torts of intent, negligence, and strict liability. At least, that is what most torts professors teach and what many scholars, judges and practitioners suppose.
In an engaging, lively, and perceptive article, Professors Abraham and White remind us that this tripartite division is descriptively inadequate for characterizing the variety of individual torts recognized today. They further claim that this plethora of distinct torts is a disorganized, fragmented mess. They then surprise the reader with a provocative conclusion: tort law is incapable of principled organization. The authors provide solid evidence of their descriptive thesis. Their critiques of the inevitability of this unprincipled disorganization are more controversial, for reasons that I will later suggest. Continue reading "Is Tort Law Hopelessly Fragmented?"
Jun 18, 2020 Ellen BublickTorts
Aaron D. Twerski, An Essay on the Quieting of Products Liability Law, 105 Cornell L. Rev. 101 (forthcoming, 2020), available at SSRN. Over and over, legal scholars have revealed situations in which different legal rules do not produce the different legal outcomes they portend. When states limit juries’ power to award punitive damages, juries instead award increased damages under a compensatory damage head. Catherine M. Sharkey, Crossing the Punitive-Compensatory Divide, in Civil Juries and Civil Justice 79, (Bornstein, Wiener, Schopp & Willborn eds. 2008). When states require juries to apportion responsibility between intentional and negligent tortfeasors, jurors may preserve negligence liability by apportioning more civil responsibility to a negligent party than an intentional one. Ellen M. Bublick, Upside Down – Terrorist, Proprietors, and Civil Responsibility for Crime Prevention in the Post – 9/11 Tort-Reform World, 41 Loy. L.A. L. Rev. 1483 (2008). Legal rules matter, but not as much as we may think. Other normative values intercede.
In An Essay on the Quieting of Product Liability Law, Restatement (Third) of Torts: Products Liability Reporter Aaron Twerski examines one of the most fevered controversies of recent products liability law— “whether liability for defective product design should be covered by risk-utility balancing or the consumer expectation test.” (P. 102.) Twenty years after the debate, Professor Twerski examines the difference between the risk-utility test applied in most states and the consumer expectations test followed in 17 jurisdictions. After much case analysis, Twerski concludes that the answer to the difference question in the two sets of jurisdictions is: not much. In 15 of the 17 jurisdictions that retain a consumer expectations test, Twerski could not find a single case in which the plaintiff did not introduce evidence of a reasonable alternative design. (P. 101, Pp. 111-120.) California and Florida are the outliers. (P. 120.) In California, reasonable alternative design (RAD) evidence is barred completely. (P. 121.) Continue reading "Tort Rules Versus Tort Practice: The Products Liability Controversy That Wasn’t"
Mar 30, 2020 Nora Freeman EngstromTorts
In The Curious Incident of the Falling Win Rate, Alexandra Lahav and Peter Siegelman highlight a remarkable—but heretofore overlooked—fact: Between 1985 and 1995, the plaintiff win rate in adjudicated civil cases in federal courts fell precipitously, from 70 percent to 30 percent. In subsequent decades, although the plaintiff win rate has fluctuated, it has generally hovered at or below 40 percent, significantly off its 1985 peak. (P. 1371.) From there, Lahav and Siegelman put their discovery in context and explore potential explanations for the observed trend. In this Jot, I’ll endeavor to explain why their Essay—on the face of it, not about the tort system—in fact, supplies an important piece of the tort-decline puzzle. Then, I’ll offer a fuller account of the Essay itself. Finally, I’ll share a few questions the paper stimulates.
First, how is this Essay about the civil justice system in general—and the federal civil justice system, no less—a tort law piece? It’s a fair question since only around 2 percent of tort claims are litigated in federal court. But, the tort system has long been the most controversial corner of the civil justice system, and it’s still one where myths and misinformation abound. Continue reading "Supplying a Key Piece of the Tort-Decline Puzzle"
Feb 4, 2020 Benjamin C. ZipurskyTorts
Richard H. Fallon, Jr.’s Bidding Farewell to Constitutional Torts is an important article at many levels. The provision by a leading constitutional scholar of a thoughtful and rigorous overview of the field, recent Supreme Court decisions within it, and new trains of scholarship criticizing those decisions is itself of great value. But there is much more here, and some of it is surprising. One might have expected a robust defender of the rule of law such as Fallon to excoriate the Supreme Court’s repeated expressions of skepticism about the principle that “where there’s a right, there is a remedy.” Instead, Fallon shares much of the Court’s skepticism and, in principle, shares its view that, in a range of scenarios, it is sensible to permit anticipated social costs to defeat the ability of victims of constitutional rights violations to hold those who have victimized them accountable. While the article ultimately defends the landmark Bivens decision itself, and a certain notion of state accountability to victims before courts of law, this too is something of a surprise in a piece purporting to “bid farewell” to the entire field.
In a manner consistent with his sensitivity to a range of constraints on legal interpretation, Fallon subdivides his article into three parts: (1) a doctrinal descriptive section; (2) the articulation of normative considerations relevant to the establishment of an attractive framework of liability rules for government actors and a proposal for such a framework; and (3) an analysis of which institutions are well-suited to adopt and implement that framework. Each of these inquiries is thoughtful, defensible, and important. Continue reading "Getting Reacquainted with Constitutional Torts"
Dec 19, 2019 Anthony SebokTorts
Ori J. Herstein, Nobody’s Perfect: Moral Responsibility in Negligence, Canadian Journal of Law & Jurisprudence, Vol. XXXII, No.1 (Feb. 2019), Pp. 109-125.
The sad story of Menlove, the defendant in the English case Vaughn v. Menlove is well known to all first-year torts students. Menlove was born, according to his lawyer, with the “misfortune of not possessing the highest order of intelligence,” and, as a result did something quite imprudent with flammable material that no person of average or typical intelligence (or judgment) would have done, resulting in a fire that damaged the plaintiff, his neighbor.
Menlove’s defense on appeal was that he had acted “to the best of his judgment,” and it was unfair to call him a wrongdoer, given that he had acted prudently, given the cognitive and behavioral handicaps under which he operated. Of course, his defense was rejected and, as Holmes said memorably in The Common Law, while “the courts of Heaven” might forgive Menlove, the common law courts would not, since “his neighbors . . . require him . . . to come up to their standard,” not his. This is what is now known as the reasonable person standard, which holds that negligence in the law is measured against an objective standard of care under the relevant circumstances. Continue reading "I Pity The Fool: Ori Herstein’s Defense of the Klutz"
Nov 21, 2019 John C.P. GoldbergTorts
Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018).
Tort compensation is often said to be governed by the make-whole principle – damages should compensate the successful plaintiff for all the losses she suffered as a result of the tort. Even if there is such a principle, it seems to have exceptions. In Rationalising Recovery for Emotional Harm in Tort Law, Eric Descheemaeker focuses on an apparent exception that applies to suits for interferences with possessory rights. For example, in standard cases of conversion, the plaintiff is not entitled to recover compensation for emotional distress caused by the wrongful interference with her property rights. Examining English authorities, Descheemaeker offers a surprising result. Although courts purport to disallow distress damages in these cases, they actually do allow them. English tort law is more principled in hewing to the make-whole ideal than it appears to be.
Rationalising Recovery is not in the first instance concerned with the question of when emotional distress serves as a “predicate injury” – i.e., the injury that the defendant was duty-bound to avoid causing. Nor is it concerned with cases in which the plaintiff sues for having been made to suffer the sort of psychiatric injury that, under English law, is treated as a personal injury on par with a broken leg. Rather, it focuses on the availability of “parasitic” emotional distress damages – compensation for fear, horror, grief, anger, frustration, worry, or other negative emotions arising out of a distinct injury that grounds the victim’s tort claim. Continue reading "Compensating Distress With A Stiff Upper Lip"
Oct 15, 2019 Ellen BublickTorts
Gregory C. Keating,
Is Tort Law “Private”?, in
Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek, eds.) (forthcoming Oxford University Press), available at
SSRN.
Tort law is no stranger to controversy. What duty does an employer owe to children sickened by workplace carcinogens brought home on parents’ clothing? What damages appropriately punish actors for willful and malicious conduct, or for non-economic harm? How far should liability extend when actors make dangerous products available to others who, in turn, choose to use or abuse them? But all of these freighted disputes pale in comparison to the larger question—what is tort law, or perhaps, what is tort law for? Although the questions seem intractable, Greg Keating’s recent article, Is Tort Law “Private”?, methodically guides readers through the theoretical claims.
The dividing lines have been staked out for some time. The instrumentalist camp sees tort law as one of many means for achieving optimal deterrence. Meanwhile a “contemporary revival” of traditional views sees tort as private law. Professor Keating wastes no time dismantling both assessments. Private law theorists miss the extent to which “modern tort law emerged as a response to the law having accidental injury thrust upon it as a pressing problem.” (P. 2.) Moreover, tort law’s “core domain is not optional,” but instead “protects persons against various forms of impairment and interference by others as they go about their lives as members of civil society.” (Id.) Continue reading "What Tort Law Is"
