Torts

The Liability of Judges for Wrongful Imprisonment

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By Samuel Beswick, Assistant Professor of Law, Peter A. Allard School of Law, The University of British Columbia. Last month, the United States Sixth Circuit Court of Appeals and the Federal Court of Australia each gave judgments on lawsuits against sitting judges for abusing their contempt-of-court power. The US case arose after an Ohio Municipal … Read more

Gold, Goldberg, Kelly, Sherwin & Smith – The Oxford Handbook of the New Private Law

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Post by Andrew Gold, John Goldberg, Daniel Kelly, Emily Sherwin, and Henry Smith We have some good news – The Oxford Handbook of the New Private Law has just been published (Oxford; Amazon)!  The Handbook offers exciting developments in scholarship dedicated to the study of private law in general, and to the New Private Law … Read more

Gold – The Right of Redress

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Post by Andrew Gold I’m writing to put in a quick word about my new book, The Right of Redress – now published in the Oxford Legal Philosophy Series. (Here is a poster for the book, which includes a discount code.) Corrective justice theories of private law often focus on a wrongdoer’s obligation to fix … Read more

Oxford Studies in Private Law Theory (Miller & Oberdiek eds.) — Call for Papers

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Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume.  Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law … Read more

Reflections on Obligations in Canada

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Post by Samuel Beswick

On May 5–6, the Peter A. Allard School of Law (University of British Columbia) hosted the inaugural Canadian Law of Obligations conference with the theme of Innovations, Innovators, and the Next 20 Years. The conference was held in honor of Professor Joost Blom QC to mark his retirement from a 45-year career at UBC’s Law School.

Justice Russell Brown of the Supreme Court of Canada, a UBC alumnus and unabashed “tortaholic,” opened the conference with praise of Canada’s legal heritage and the methodological constraints of stare decisis, analogical reasoning, and reasons-based persuasion that are both empowering and humbling features of common law adjudication.

The conference drew scholars from across North America as well as from England and Wales, Hong Kong, Israel, and South Africa. Across the nine panels and four keynote addresses, presentation topics traversed problems concerning public authority liability, the evolving torts of privacy and defamation, remedies for historic wrongs and abolition of historic rights, private law theory, empirical research and causation theory, trusts, and the implications of the good faith principle in contract law (the “tortification of contract,” as Professor Blom put it).

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Harvard Law School’s Private Law Workshop: John C. Harrison, Immunity Rules

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

In the third of our trilogy of sessions on Hohfeld, Professor Harrison this week presented to the HLS Private Law Workshop a view of Calabresi and Melamed’s famous Cathedral article through a Hohfeldian lens. Calabresi and Melamed organized legal entitlements into three types: those protected by property rules, those protected by liability rules, and inalienable entitlements. An entitlement is protected by a liability rule when, if it is interfered with, the law requires only that the defendant pay an objectively determined value for it (generally in the form of compensatory damages).

Liability rules, Harrison contends, are “a false category.” Calabresi and Melamed had taken accident law from tort and eminent domain from the law of property, and grouped the two as examples of “instances in which society uses liability rules.” But their typology obscured the analytically distinct nature of these categories in two ways: by conflating rules about right/duty and rules about power/liability; and by conflating substantive law and remedies.

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Apologies as Tort Reform — Yonathan Arbel

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Post by Yonathan Arbel

When we wrong others, there is often an expectation—perhaps a moral duty—that we apologize. By apologizing, the wrongdoer asserts ownership of the wrong and acknowledges the wrongness of the act and the moral standing of the victim. It is also said that apologies can help restore the social order disrupted by the wrong.

In recent decades, many scholars have suggested that there should be a place in the law for apologies. And so the idea of ‘apology laws’ – laws that promote and protect the use of apologies – was born. These laws, now found in 36 states, are meant to encourage wrongdoers to apologize without fear of legal repercussions, and they typically apply in private law settings, such as torts and medical malpractice. A paradigmatic example is a doctor who makes a mistake during surgery but, in the absence of a ‘safe harbor’, would be reluctant to apologize for fear that admitting the mistake would foster litigation and count as an admission of liability.  An apology law that makes apologies inadmissible as evidence of fault at trial, as most do, promises to overcome this barrier.

In a new paper, Tort Reform Through the Backdoor: A Critique of Law & Apologies, (Forthcoming S. Cal. L. Rev., 2017), Yotam Kaplan and I are challenging the predominant scholarly disposition favoring laws that create safe harbors for apologies. We argue that in commercial settings—involving insurance companies, large firms, hospitals, etc.—using the law to encourage apologies may undermine tort liability and undercut deterrence. This effect is not necessarily negative—many people believe that the tort system is out of control—but it does mean apology laws are de-facto tort reform. That many states that normally oppose tort reform adopted apology laws was the result of clever marketing and concentrated lobbying efforts by tort reformers who co-opted the legal discourse on apologies to their own ends. Perhaps most notably, Barack Obama and Hillary Clinton—neither of whom is a card-carrying tort reformer—advocated actively for apology laws in an article in The New England Journal of Medicine.

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Faulty Facades and Product Liability — Samuel Beswick

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Post by Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School

* At the outset I should disclose that I had a hand in drafting the plaintiffs’ claim as a solicitor at Meredith Connell, New Zealand, in 2012/13.

Although the paradigm case of a tort suit against a product manufacturer involves a claim of personal injury caused by the manufacturer’s allegedly defective product, there is a wealth of litigation concerning products whose defects do not pose a risk of personal injury. For example, currently progressing through the District Court of Minnesota is a class-action product liability lawsuit, which consolidates claims arising in eight states against James Hardie Building Products Inc. in respect of its allegedly defective Hardiplank cladding product. The plaintiffs contend that Hardiplank fails prematurely by allowing moisture ingress, which causes damage to underlying building structures and adjoining property. Their claims sound in negligence, breach of express and implied warranties, and breach of consumer protection legislation. The plaintiffs might find some reassurance in last Friday’s decision of the Supreme Court of New Zealand: Carter Holt Harvey Limited v. Minister of Education [2016] NZSC 95. 

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SIOE 2016 — Dan Kelly

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Post by Dan Kelly

 

The Society for Institutional and Organizational Economics (SIOE) (formerly, the International Society for New Institutional Economics (ISNIE)) is hosting its 20th Annual Conference this week, June 15-17, at Sciences Po in Paris, France.  The conference website includes details on this year’s program and links to abstracts and papers.

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Causation Theory and Tort Law: An Update — Keith Hylton

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Post by Keith Hylton

Causation has generated a great deal of theoretical writing in tort law.  The most recent issue of the Journal of Tort Law (volume 7, Issue 1-2, Jan 2014, published online 10/31/2015) includes a three-article mini-symposium on the “economics of causation.”  The JTL symposium authors are me, Mark Grady, and Richard Wright.  The contributions from Grady and from me consist of new insights on the economic theory of causation, and Wright contributes a critique.

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North American Workshop on Private Law Theory — Eric Claeys

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Post by Eric Claeys, George Mason University

Before we get too far into November, some friend of this blog should say a word about the third North American Workshop on Private Law Theory.  (“NAWPLT”). NAWPLT is an annual workshop organized by Henry Smith, John Goldberg, Andrew Gold, Steve Smith and Paul Miller (McGill), and Dennis Klimchuk (Western Ontario).  The NAWPLT organizers usually select eight or nine papers, diversified to cover each of the four major fields of private law: tort, contract, property, and restitution-plus-remedies.  The papers are also diversified to show off a wide range of methodologies—analytical methods, different traditions of normative philosophy, and on occasion conceptually-respectful economic analysis.   I always enjoy going because NAWPLT is refreshing for me.  As an American scholar, most of the private law scholarship I encounter at conferences tends to be reform-oriented or economic in focus.  At NAWPLT, I get reminded that, in some parts of the English-speaking scholarly community, analytical and philosophical methods are taken seriously and applied well to private law.  

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There Is No General Tort Law — Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

In the discrimination context, the Supreme Court has declared that when Congress creates a federal tort it adopts the background of general tort law.  One reason that it is difficult to apply traditional tort law to discrimination cases is that there is no such thing as “general” tort law.  Tort law may use similar words in different torts, but these words often have different meanings, depending on the tort to which they are attached.  Many tort doctrines differ depending on the underlying pocket of obligation being considered.

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Missing the Mark on Duty, Again. Regents v. Superior Court — Goldberg & Zipursky

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Post by John C. P. Goldberg & Benjamin C. Zipursky

The California Supreme Court has an iconic status in American tort law. It is, after all, the Court that gave us strict products liability. It also led the charge to liberate negligence law from no-duty rules that barred various claims against negligent drivers and landowners.

Perhaps the best known of the Court’s duty decisions is Tarasoff v. Board of Regents (1976). A Berkeley graduate student (Poddar) became obsessed with a young woman (Tarasoff). Eventually, Poddar confronted Tarasoff at her parents’ home and stabbed her to death. The Court held that, although Tarasoff lived off campus and was not an enrolled student, because Poddar had talked about killing Tarasoff with his therapists, they were obligated to take steps to protect her. Like most other Torts professors, we teach Tarasoff as emblematic of the California Court’s then-progressive, pro-plaintiff disposition, and its role as a trailblazer for courts around the country.

Imagine our surprise, then, to read a recent California Court of Appeal decision ruling that, so far as California law is concerned, universities owe no duty to their students to protect them against attacks by other students. More jarring still was that this case—Regents v. Superior Court—featured both another horrific knife attack and the same defendant as in Tarasoff: the Regents of the University of California. As Justice Perluss argued in a persuasive dissent, the Court of Appeal’s holding that UCLA owed no duty of care to its student is untenable. The core issue in the case is not duty, but breach (and perhaps causation).  Breach, of course, is a question for the jury.  

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The History Problem –Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

The history of the discrimination statutes also presents a problem for interpreting them through the lens of tort law.  As mentioned in the last post, the Supreme Court has created different ways of thinking about discrimination claims.  Courts often categorize discrimination cases as falling into one of several different frameworks:  (1) individual, intentional discrimination claims; (2) pattern or practice claims; (3) harassment; and (4) disparate impact.

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Title VII Does Not Look Like a Tort – Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

There are several reasons why it is hard to use tort law to define discrimination concepts.  The first reason is a textual one.  Any judge who espouses a strongly textual philosophy should have a hard time claiming that tort law specifically defines terms in Title VII.  Why?  Title VII is not structured like a typical common law tort.  More importantly, Title VII does not use the language of common law torts.

Most torts are structured in a particular way.  They have a common set of elements that define the primary contours of the cause of action.  For example, negligence is typically defined with four elements: breach of a duty causing injury. 

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The Supreme Court, Discrimination and Torts — Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

Three fairly recent Supreme Court cases illustrate a change in the way that tort law is invoked in discrimination cases:  Gross v. FBL Fin. Servs., Inc., Staub v. Proctor Hosp., and University of Texas Southwestern Medical Center v. Nassar. In these three cases, the use of tort law commands a majority of the Court.  The use of tort law is also tied to textual claims, where certain words or concepts in discrimination law are directly interpreted through the lens of tort law.

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What Does It Mean for Something to Be a Tort? — Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

Whenever I say Title VII is not a tort, I get quite a bit of pushback about this claim.  It makes sense to start this post by explaining what I mean.

There is not one fixed definition of what a tort is.  Tort law can be defined as being “about the wrongs that a private litigant must establish to entitle her to a court’s assistance in obtaining a remedy and the remedies that will be made available to her.” John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 919 (2010). Another common definition of a tort is a “civil wrong, other than breach of contract, for which the court will provide a remedy.” W. Page Keeton, et al. Prosser and Keeton on The Law of Torts 1, 2 (5th ed. 1984).

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Title VII Is Not a Tort — Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

Thank you to John and Henry for inviting me to blog here.

In several posts, I will be blogging about how federal courts are pushing federal discrimination law out of a public law model and into a more private law frame.  There are three major federal discrimination statutes: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).  Taken together, these three statutes prohibit employment discrimination based on factors such as race, sex, religion, age and disability.

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What Commonwealth Jurists Can Learn from the New Private Law — Malcolm Lavoie

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Post by guest blogger, Malcolm Lavoie, University of Alberta Faculty of Law

It is impossible to explain the “new private law” to non-American jurists without first describing a little bit of history: the rise of legal realism in the 20th century, with its hostility to formal doctrine, and the subsequent emphasis the American legal academy has placed on looking beyond private law doctrine to understand what is really going on, in economic, political, or other terms. As alluded to by Henry Smith in a recent post, the dominance of “external” approaches to law in private law scholarship has been a uniquely American phenomenon. In civil law jurisdictions, as well as in the Commonwealth, private law scholarship has retained its focus on legal doctrine, though it is sometimes complemented by functionalist approaches of various stripes. If the central aim of the “new private law” is to encourage approaches to scholarship that “take law seriously”, one might rightly ask what it has to offer to jurists from, say, England and the Commonwealth, where scholars never really stopped taking law seriously.

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A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky

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Post by John C. P. Goldberg & Benjamin C. Zipursky

Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015).  (Thanks to the Volokh Conspiracy and How Appealing for bringing the case to our attention.)  

Facts and Outcome in the Federal Courts. 

Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.

Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut:  (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.

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Tort Damages and Discrimination – Keith Hylton

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Post by Keith Hylton

Tony Sebok’s post on tort damages and discrimination presents a fascinating problem that I’ve often used as a basis for discussion in my torts classes.  If race (or some other feature likely to be discriminated against) is taken into account in an attempt to predict the future earnings of a tort victim, then damages awards will reflect the wider discrimination in society, in a sense making the tort plaintiff who falls into a discriminated-against category a victim twice, once at the moment of injury and again at the moment of compensation.

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Can Tort Damages Discriminate? – Anthony Sebok

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Post by Anthony Sebok

On July 30, 2015, federal district court Judge Jack Weinstein refused to allow a jury to take the race of a plaintiff into account when calculating future earnings loss.  The case, G.M.M. v. Kimpson (discussed here: http://www.nytimes.com/2015/07/30/nyregion/award-in-lead-paint-lawsuit-cant-be-tied-to-ethnicity-judge-rules.html), was a lead paint poisoning case and the plaintiff was a four year-old boy.  The defense put on the stand a forensic economist intended to base his testimony, on part, statistical assumptions about the academic achievement and earnings potential of Hispanics, as a group.  Judge Weinstein flatly refused to allow any testimony based on ethnic group characteristics.

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Causation and Care in Tort Law — Keith Hylton

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Post by Keith Hylton

Causation is a topic that has generated a lot of interest from torts theorists.  Law and economics has been a bit late to the party, but at least they have brought some interesting findings with them.  The innovation offered by law and economics is a set of predictions about the incentive effects of causation rules.  This distinguishes law and economics from traditional moral reasoning because the law and economics approach makes statements about the actual effects of causation rules on tortious conduct.  To law and economics scholars, it is only after clear predictions can be made about incentive effects that we can start to make moral assessments of the law.  From the perspective of economics, it is of little use to offer a moral assessment of some legal doctrine without being able to say anything about its effects on behavior.  A law may seem morally ideal in its expression, but if its effect is to encourage socially destructive behavior, then the law must be considered a moral as well as an operational failure.

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