Monday, October 15, 2018
Friday, October 12, 2018
Stephen Smith has posted to SSRN The Structure of Remedial Law. The abstract provides:
Notwithstanding its practical and, at least in the common law, historical importance, remedial law as a legal category has attracted little attention. The kinds of broad questions that courts and commentators regularly ask about the scope, nature, and aims of substantive law subjects such as contract law and tort law have not been asked about remedial law. This paper addresses this gap. It focuses on four fundamental questions about remedial law’s structure: (1) What is a remedy? (2) Why does the law provide remedies? (3) When are remedies available? and (4) What kinds of remedies are available?
Thursday, October 11, 2018
Bernard Bell has posted companion pieces to the Yale Journal on Regulation's "Notice & Comment." His introduction captures the theme:
On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”). Order, Dkt. 17-1201, 2018 WL 4650382. (The docket sheet is available here.) The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars a negligence claim against the TVA. Many readers of this blog probably spend little mental energy on the FTCA, or the interaction between tort liability and Administrative Procedure Act (“APA”) judicial review. (And you probably expend even less contemplating the TVA or any other government corporation.) This series of two posts previews Thacker and discusses the complementary relationship between ex post tort liability and ex ante judicial review.
Wednesday, October 10, 2018
Antonio Brown allegedly flew into a violent rage back in April, throwing furniture off a 14th story balcony:
The Pittsburgh Steelers star WR has been sued by Ophir Sternberg -- who claims his 22-month-old son was walking around the pool at a high-end apartment complex with his grandfather when suddenly "large objects started to fall from the building many floors above them."
Sternberg claims the items included 2 very large vases, a heavy ottoman and other pieces of furniture -- which landed within a mere foot or 2 from the toddler and his grandfather.
Suit was filed for both assault and IIED. TMZ Sports has the story. Thanks to Shannon Costa for the tip.
Thursday, October 4, 2018
Back in July, I posted that the 3rd Circuit held TSA screeners were not law enforcement officers for purposes of the Federal Tort Claims Act. As a result, claims related to their conduct were barred by sovereign immunity. Now the court has decided to review the 2-1 decision en banc on February 20, 2019. U.S. News has the story.
Tuesday, October 2, 2018
In February, Fordham Law School held a symposium titled “Civil Litigation Reform in the Trump Era: Threats and Opportunities.” The articles are now available:
· “Searching for Salvageable Ideas in FICALA” [Fairness in Class Action Litigation Act of 2017] by Fordham Prof. Howard Erichson
· “Jurisdiction in the Trump Era” by UC Hastings Prof. Scott Dodson.
· “Rights and Retrenchment in the Trump Era” by U. Penn. Prof. Stephen Burbank and UC Berkeley Prof. Sean Farhang
· “The Looming Battle for Control of Multidistrict Litigation in Historical Perspective” by UC Berkeley Prof. Andrew Bradt
· “What We Don’t Know About Class Actions but Hope to Know Soon” by U. Penn. Prof. Jonah Gelbach and Stanford Prof. Deborah Hensler
· “Asbestos Trust Transparency” by Mark Behrens
Monday, October 1, 2018
Abilify, a drug used to treat schizophrenia and bipolar disorder, is the subject of a mass tort suit claiming it leads to destructive behaviors. The drug was brought into the U.S. market by Otsuka America and Bristol-Myers Squibb in 2002. Prior to any warnings in the U.S., European and Canadian warning labels stated that Abilify could unleash "destructive behaviors." On May 3, 2016, the FDA required an addition to Abilify's labels warning of “compulsive or uncontrollable urges to gamble, binge eat, shop, and have sex.” Complaints allege failure to warn and failure to adequately test the drug. The Daily Beast has the story.
Thursday, September 27, 2018
Ken Simons has posted to SSRN Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality. The abstract provides:
What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? This essay addresses these issues with a particular focus on legal and moral duties of compensation. First, the essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private necessity principles that apply to appropriations of private property also apply to actors who intentionally infringe or violate rights of bodily integrity. The essay then turns to the privilege of public necessity, which generally is not, but perhaps should be, accompanied by a duty to compensate, and its relationship to rights of self-defense. The next section explores mistake, justification, and excuse, and considers the question of whether an innocent victim should receive compensation from a reasonably mistaken defender. The final section explains that the notion of conditional fault helps make sense of a strict liability duty to compensate.
Friday, September 21, 2018
Daniel Schwarcz has posted to SSRN Is U.S. Insurance Regulation Constitutional?. The abstract provides:
Insurance regulation is ostensibly the primary domain of the states. In practice, however, the most important and powerful entity in insurance regulation is not a state at all, but a non-profit corporation known as the National Association of Insurance Commissioners, or NAIC. Much of the NAIC’s power lies in its production of various “handbooks” and “manuals” that have the force of law because they are incorporated by reference in state insurance codes. Under this statutory scheme, when the NAIC updates or changes its various manuals, handbooks, or accounting forms, it also changes state insurance regulation. Because the NAIC is a private entity, it produces these various materials that have the force of law without being bound by any safeguards that ordinarily accompany the production of regulation, whether at the state or federal level. Moreover, the NAIC uses its unique accreditation program to directly pressure state legislatures to delegate this authority to it. This Article argues that this scheme violates basic separation of powers and non-delegation principles embedded in every state Constitution. Under any reasonable version of these principles, the delegation of state regulatory authority to a private entity that directly pressures legislatures to make this delegation and whose actions are not reviewable through any formal judicial or administrative process is unconstitutional. Recognizing this conclusion has the potential to improve state insurance regulation by increasing the accountability of state regulators and the NAIC. But it also carries the risk of undermining state insurance regulation by frustrating efforts to promote uniform national standards. However, the Article suggests that state legislatures can enact reforms that simultaneously remedy the unconstitutional structure of state insurance regulation while preserving the many practical benefits that flow from delegating production of regulatory standards to a single, national entity like the NAIC. In particular, they can establish through an interstate compact an entity that is truly independent from state insurance regulators and that is empowered to review the NAIC’s production of regulatory materials that have the force of law.
Monday, September 17, 2018
Friday, September 14, 2018
Michael Duff has posted to SSRN How the U.S. Supreme Court Deemed the Workers' Compensation Grand Bargain 'Adequate' Without Defining Adequacy. The abstract provides:
During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained tort liability while eliminating many or all affirmative defenses. The Minnesota Employees’ Compensation Commission and the National Civic Federation (NCF) catalyzed the national conversation on workers’ compensation from 1909-1911, and it was an NCF lawyer who was substantially responsible for a draft that became the first workers’ compensation statute upheld by the U.S. Supreme Court as constitutional. Contrary to the view held by some, the foundational Supreme Court opinions constitutionally authorizing the workers’ compensation “Grand Bargain” — statutory benefits for tort damages — set no workers’ compensation benefit floor. The article parses the opinions to emphasize the point, and then goes on to explore the context of what seems a strange omission. Ultimately, the article concludes that the Court “deferred,” sub silentio, to the private bodies of experts who had been investigating, reporting, and deliberating upon the European systems. The difficulty with the Court’s approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages. The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers’ compensation benefits. This absence of an explicit benefit floor should give pause to proponents of schemes seeking to export the workers’ compensation model to other legal regimes.
Thursday, September 13, 2018
Mike Rustad & Tom Koenig have posted to SSRN Towards a Global Data Privacy Standard. The abstract provides:
On May 25, 2018, the General Data Protection Regulation (GDPR) went into effect in the twenty-eight countries of the European Union and the EFTA countries, effective creating European-wide data protection law modernized for the age of the Internet. One of the key aspects of the GDPR is that it applies to non-European entities that processes personal data of EU consumers. Unlike the Data Directive of 1995 that it supplanted, the GDPR applies to U.S data controllers outside the EU. Many academic and industry commentators claim that the GDPR will drive a wider gulf between U.S. and EU data protection law because of the GDPR’s aggressive extraterritorial rules.
This Article rebuts the widespread assertion that recent EU updates to its data protection law will drive a disruptive wedge between EU and U.S. data privacy laws. Instead, the European General Data Protection Regulation (GDPR) creates convergences between EU/U.S. data protection law that overshadows the divergences. The GDPR is said to be a foremost example of the Brussels Effect because it unilaterally imposes EU privacy law on the United States. We acknowledge a Brussels Effect on U.S. privacy law but there is also an overlooked D.C. Effect reflected in many GDPR provisions. The European Commission imported many privacy rights first developed in the U.S. into this wide-ranging EU-wide legislation. U.S. privacy law had already recognized the duty of the processor to obtain consent, a data subject’s right to access, data minimization, and the right to notice in the aftermath of a data security breach.
The GDPR adopts deterrence-based fines and other long-established U.S. tort law remedies. U.S. tort concepts such as collective redress, wealth-based punishment, arming data subjects with the right to initiate public enforcement are recognized for the first time in European history in this comprehensive statute. Under the GDPR, the EU Commission adopted privacy by design and security breach notification obligations, innovations first instituted in the U.S. The net effect is a bilateral transatlantic privacy convergence, rather than a divide, which is rapidly evolving into a global data protection standard. Nations around the world, some U.S. states, and the major U.S.-based data processors are instituting policies conforming to the GDPR. We argue that the GDPR has the potential to not only bring an end to the transatlantic data privacy wars, but to become the foundation of a worldwide “gold standard” for information privacy.
Wednesday, September 12, 2018
Martha Chamallas has posted to SSRN Will Tort Law Have its #MeToo Moment?. Presented at AALS in January and forthcoming in the Journal of Tort Law, the abstract provides:
Using tort law’s treatment of claims for domestic violence and sexual assault as examples, this essay identifies prominent features of a feminist historical approach to law to demonstrate how gender inequality is reproduced over time, despite changes in legal doctrine. When informed by feminist theory, history can function as a critique of past and present regimes of inequality, highlighting the various techniques of exclusion and marginalization that emerge to prevent law from redressing serious, recurring injuries suffered disproportionately by women. The essay explores two such techniques: sexual exceptionalism that treats gender-related torts differently than other harms and the adoption of ostensibly neutral rules that have a disparate impact on women and marginalized groups. The essay speculates as to whether the #MeToo movement can provide the momentum to produce a break from the past, particularly with respect to third-party claims holding employers and other institutional defendants responsible for sexualized harms.
Tuesday, September 11, 2018
KATV in Little Rock is reporting about a Talk Business & Politics-Hendrix College poll on the issue of whether the state constitution should be amended to cap attorney fees, limit damages in personal injury, property damage, or wrongful death lawsuits, and give the legislature the authority to control the rules of court procedure. The results? 25% of voters are in favor and 47% are opposed. More details are available here. It would be interesting to know if the advocacy of a Christian group against tort reform has had an effect.
Monday, September 10, 2018
Rob Verchick has edited two podcasts on climate change tort litigation for the Center for Progressive Reform. He describes them as follows:
Friday, September 7, 2018
Malinda Seymore has posted to SSRN Adopting Civil Damages: Wrongful Family Separation in Adoption. The abstract provides:
Summer 2018 has been rocked by the Trump Administration’s new immigration policy of family separation at the U.S./Mexico border. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course; in legal adoption, the biological parents have been provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents when consent is invalid because of fraud, coercion or deceit. In actuality, courts are very reluctant to undo an adoption. How, then, to deter adoption agencies and workers from wrongfully separating birth parents and their children? Adoption agencies are not just social welfare institutions, but also businesses motivated by money. Lawsuits, as a cost of doing business, can affect their bottom line. The adoption industry has been responsive in the past to lawsuits from adoptive parents seeking money damages, which suggests that lawsuits from birth parents that affect the bottom line could incentivize better behavior from adoption agencies. This article explores possible tort causes of action available to birth parents, including a proposed new tort of wrongful family separation, with the long-term objective of changing adoption agency behavior, potentially transforming adoption practice.
Wednesday, September 5, 2018
The AALS Torts & Compensation Systems Section has announced that the 2019 William L. Prosser Award is bestowed upon Kenneth Simons. Congratulations to Ken! From the UC Irvine announcement:
Friday, August 31, 2018
Nora Freeman Engstrom has posted to SSRN two pieces about trials. First, The Diminished Trial. The abstract provides:
Civil trials, many have noted, are going the way of the dodo bird. Federal courts conducted half as many civil trials in 2016 as they did in 1962, even while disposing of over five times as many civil cases. A similar trend is apparent in the states. Of course, this trajectory has not escaped scholarly attention. Barrels of ink have been spilled investigating, eulogizing, and variously, mourning or lauding, the “vanishing trial.” But, this is far from the whole story. This Article shifts the conversation to a different, though related, phenomenon: not the disappearance of the civil trial, but rather, its downsizing. I take as my point of departure two puzzling trends. First, since 1983, “protracted” trials, which is to say trials that last over 20 days, are way down. There were more than 100 such trials per year in the late 1980s, but in 2016, we only saw only 13. Second, over the same timespan, really short trials, which is to say trials lasting one day or less, are up. Indeed, starting in 2009, and every year since, the majority of all federal civil trials have wrapped up in only one day. This paper seeks to highlight these trends, which have so far escaped scholarly attention, and also to conduct a preliminary investigation into the potential causes and consequences.
Second, The Trouble with Trial Time Limits. The abstract provides:
Civil trial rates are at an all-time low. Meanwhile, “trial time limits” — judicially imposed limits on the time litigants have to present their evidence at trial — seem to be at an all-time high. We have fewer trials than ever, yet we’re taking aggressive steps to curtail the few that we’ve got. This Article zeroes in on this paradox. It excavates time limits’ origins, tracks their rise, examines their administration, and raises deep questions about their fairness and utility. Trial time limits have, so far, been variously ignored or, alternatively, lauded, as a way to promote juror comprehension and as a tool to make trials cheaper and more efficient. Indeed, one court has gone so far as to call these restrictions “essential” to sensible docket management. This Article challenges that conventional story and cautions against time limits’ regular or reflexive application. In so doing, this Article seeks to begin a broader inquiry into how the American civil trial of the twenty-first century is not only disappearing; the scattered trials that remain are also changing, in subtle and hard-to-quantify but profoundly important ways.
Wednesday, August 29, 2018
Nora Freeman Engstrom has posted to SSRN When Cars Crash: The Automobile's Tort Law Legacy. The abstract provides:
Everyone understands that the invention of the automobile has had a profound effect on daily life in America. It has transformed our workplaces, altered our neighborhoods, and radically changed our environment. But cars have never been perfectly safe, and, as the years have passed, injuries and fatalities have mounted. This Article contends that, just as motor vehicles have remade our culture, these injuries and deaths — some 3.5 million fatalities and counting — have catalyzed fundamental changes in the contours, purposes, and limits of our law.
Tuesday, August 28, 2018
Tim Lytton has posted to SSRN Exposing Private Third-Party Food Safety Auditors to Civil Liability for Negligence: Harnessing Private Law Norms to Regulate Private Governance. The abstract provides:
In many industries, companies rely on private third-party audits to monitor their suppliers’ adherence to various standards. These audits are frequently paid for by the entity being audited, which creates a conflict of interest that incentivizes auditors to reduce the burden of audits by cutting corners and inflating audit scores. This article presents a case study of food safety audits in the fresh produce sector. It explains why large commercial buyers of fresh produce rely on private third-party audits paid for by growers despite the conflict of interest, and it argues that exposing auditors to civil liability for negligence would improve the rigor and reliability of these audits. The article concludes with a more general analysis of how the private law norms of duty and reasonable care imposed by civil liability can improve private governance.