Archive for the ‘Tort Law’ Category
The Increasing Use of Compensation Funds
posted by Gerard Magliocca
I’ve taught Torts for many years, but I’ve never found a research subject in that area that grabbed my attention. One possibility, though, is the growing trend to create a fund (usually run by Ken Feinberg) to compensate victims of a disaster in exchange for their decision to forego litigation. This was done for 9/11, for the BP oil spill, for the stage collapse at the Indiana State Fair this summer, and for other situations.
There are several interesting features to what is, in essence, an ad-hoc move to a workers-compensation/no fault system for these alleged wrongs. First, why do lawmakers sometimes choose to create a fund and sometimes not? Second, do these funds work well? Third, to what extent does the existence of a fund undermine (at least with a jury) litigation claims by people who refuse to submit their claims to the fund? Fourth, should these funds be converted from a voluntary to a mandatory system?
Perhaps someone has written a good article on this development already. If so, please let me know.
December 7, 2011 at 10:55 am
Posted in: Tort Law
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My Holiday Card to Concurring Opinions Readers
posted by Kyle Graham
TORTS
Final Examination
Professor Graham
Holiday 2011 Semester
PROFESSOR’S INSTRUCTIONS:
1. You have three hours to complete the exam,
which consists of a single question.
2. This is a closed-book exam.
3. Assume that the facts as given are true, and take place in the fictitious State of Confusion.
4. Good luck!
QUESTION ONE
On Christmas Eve 2011, Santa Claus landed his sleigh atop the roof of the Adams household. After squeezing down the chimney, he left gifts for the Adams family, ate the milk and cookies that had been left out for him, and then shimmied back up the chimney to the roof.
As Santa prepared to board his sleigh, he slipped and fell on an icy shingle. Santa tumbled down the roof and crashed into the bushes below, hurting his back. Mr. Adams had seen the ice on his roof earlier that day, but decided not to clear it off; the task seemed like a lot of work, it was cold outside, and there was a good football game on TV. As Santa lay injured in the bushes, a partially unwrapped gift—a Chia Pet—inexplicably fell from (or was disgustedly tossed out of) a window at the Adams residence, and clobbered Santa on the head.
The tumult caused Santa’s reindeer to panic and fly off without him. The out-of-control reindeer and sleigh crashed into and pulverized the chimney at the nearby Batista household. Meanwhile, the Chen and Davis children had been “nice” this year, but received no presents due to Santa’s injury and the runaway sleigh. Believing that Santa considered them “naughty,” the Chen and Davis kids suffered serious emotional distress.
Later that night, one of the gifts that Santa had left for the Adams family, a Sniggie® blanket (like a Snuggie, only cheaper), spontaneously burst into flames. The ensuing fire burnt the Adams house down to the ground.
Finally, the events related above caused some scales to topple onto a woman standing at a train station in Brooklyn.
Identify and evaluate the torts implicated by the foregoing facts, taking care to consider, inter alia:
1) Whether Santa is best classified as an invitee, licensee, or trespasser at the Adams household, assuming that the State of Confusion continues to adhere to these categories;
2) Whether the doctrine of res ipsa loquitur applies to the defenestrated Chia Pet;
3) Whether Santa would be liable for the chimney damage in a “fence out” jurisdiction;
4) Whether any duty existed to protect the Chen and Davis children from the harms that they suffered; and
5) Whether Santa can be held strictly liable as a “distributor” of the defective Sniggie® blanket.
Happy Holidays!
December 6, 2011 at 1:13 pm
Posted in: Humor, Tort Law, Weird
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Messerschmidt v. Millender: What’s Next, After the Supreme Court Rules?
posted by Kyle Graham
Not Quite Messerschmidt, But You Get The Idea
The United States Supreme Court will hear oral argument tomorrow in Messerschmidt v. Millender. In this § 1983 case, the Court will consider the circumstances in which a law enforcement officer who prepares or executes an overbroad and/or insufficiently particularized search warrant is entitled to qualified immunity from damages.
Orin Kerr has posted an analysis of the case over on SCOTUSblog; I have little to add to his thoughtful commentary. As Professor Kerr appears to, I anticipate that the Supreme Court will find that on the facts before it, the police officers in question are entitled to qualified immunity, and reverse the United States Court of Appeals for the Ninth Circuit.
But what if it doesn’t? The case will return to the district court, and that’s when the really interesting (and under-examined) legal issues will arise. A very large share of the appellate caselaw that involves claims brought under § 1983 concentrates upon whether a defendant or defendants are entitled to qualified immunity. There is a relative dearth of precedent concerning matters such as damages and, especially, causation. On any remand in Messerschmidt, however, possible causation and damages problems with the plaintiffs’ case may loom large, as they did in the last warrant case decided by the Supreme Court, Groh v. Ramirez.
In Groh, as some of you may recall, a law enforcement officer (an ATF agent, to be precise) goofed by failing to list the items to be seized in the search warrant itself (in the space on the warrant reserved for identification of these items, he simply typed in the premises to be searched). These items were identified in the affidavit, however, which also stated probable cause for the search. On these facts, the Groh majority held that qualified immunity was not available to the officer.
Once the case was remanded back to the district court, the United States (Groh was a Bivens case) emphasized that the error in question really wasn’t the cause of significant damages. To understand this argument, recall that in tort law, a plaintiff must show that the defendant’s negligence was a “but for” cause (also known as a “cause-in-fact”) of the plaintiff’s injury. The key word is “negligence,” to be distinguished from “conduct.” The Third Restatement of Torts illustrates this point using a hypothetical driver who hits a pedestrian while driving 57 miles per hour in a 50-mile-per-hour zone. According to the Restatement, if the pedestrian sues the driver for negligence, her claim will falter for lack of causation, unless the driver would not have hit the pedestrian (or would have caused less damage) if he had been driving at the 50-mile-per-hour speed limit. (Significantly, in the Restatement’s ‘non-negligent’ counterfactual, the driver is operating his vehicle at a speed that’s at the very cusp of negligence.)
Similarly, on remand in Groh, after pointing out that conventional tort rules regarding causation apply in § 1983 cases, the United States argued that in a perfect world that resembled what actually happened—except that there was no drafting error with the warrant—a search warrant for the premises still could and would have been issued and executed, in precisely the same way that the flawed warrant was. Therefore, according to the United States, the plaintiff in Groh should receive only nominal damages, since the agent’s error, properly isolated, did not cause any actual damages.
Groh settled prior to trial, so we don’t know how that argument worked out for the United States. Nevertheless, it seems likely that if the Supreme Court affirms the Ninth Circuit in Messerschmidt, the defense will make a similar argument on remand. The principal damage item in Messerschmidt appears to be the alleged emotional distress associated with the officers’ entry. (Here, keep in mind that the warrant was executed at around 5:00 a.m.) As in Groh, the defense will stress that the same entry presumably would have occurred pursuant to a properly tailored warrant, meaning that the plaintiffs’ primary damage item wasn’t really caused by the problem with the warrant.
This argument has its strengths and weaknesses (or at least, limitations), which I will avoid for now. Perhaps the more important point is that while we all focus a great deal on qualified immunity, other elements of a § 1983 cause of action remain precedential terra incognita, or nearly so, as to many of the different types of claims catalyzed by the statute. It takes time to “fill in” the law surrounding a legal theory, and there simply haven’t been enough published decisions regarding many § 1983 theories for this to have occurred.
Moreover, certain attributes of a cause of action tend to be “filled in” faster than others. My suspicion is that but-for causation is typically either the last, or one of the last elements of a claim to develop a substantial body of useful caselaw-created rules. The delay owes to the fact that but-for causation is doubly shielded from appellate review. A jury normally determines the “cut-off” line between negligence (or otherwise improper conduct) and non-negligent behavior; and as the Restatement hypothetical illustrates, it is this cut-off that serves as the baseline for their subsequent causation determination. In effect, an appellate court tasked to review a but-for causation determination by a jury must peer inside a black box that is itself hidden inside another black box. Little wonder, then, that there exist few useful but-for causation guideposts in the caselaw.
December 4, 2011 at 6:02 pm
Posted in: Civil Rights, Criminal Procedure, Supreme Court, Tort Law
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Summers v. Tice: The Rest of the Story
posted by Kyle Graham
Most law students encounter Summers v. Tice in their introductory Torts courses. If you are (or were) among these students, you probably recall the basic facts: two negligent hunters, two simultaneous (or nearly so) shotgun discharges, one injured companion (shot in the right eye [necessitating its removal] and upper lip), only one culprit, but no way for the plaintiff to tell who shot him. Given these circumstances, the Summers court flipped the burden to each of the two defendants to exonerate himself, rather than allowing the plaintiff to founder on the shoals of but-for causation and the preponderance standard of proof.
The California Supreme Court’s opinion in Summers is pretty short, and I’ve long been curious about the defenses that the defendants (Harold Tice and Ernest Simonson) raised in this case. So I went to the California State Archives a while back and read through the case file.
An interesting story emerged. Whereas Simonson did not put on a very aggressive defense at trial, Tice did. Simonson conceded that both he and Tice had fired shots that could have caused Summers’ injury. Tice, by contrast, testified that Simonson, and Simonson alone, had shot the plaintiff, and that in fact Tice had not fired his gun for minutes prior to the fateful blast. To the same effect, Tice produced two deputy sheriffs as witnesses. These men testified that when they interviewed Simonson shortly after the accident, Simonson had told them that he was “the one” who had fired the shot (though on cross-examination, one of the deputies hedged a bit on this point).
Moreover, Tice argued that but for the plaintiff’s own negligence, he could have identified his assailant. Specifically, Tice testified that he had been using No. 6 shot, whereas Simonson had been using No. 7½ shot. The two pellets are of slightly different size, and capable of distinction. Summers himself testified that, although the shot had been given to him after its removal, he could not find it when he looked for the pellets at his home. These facts, if accepted, place a very different spin on the case. One could no longer say that the defendants were in a better position than the plaintiff was to identify who fired the injurious shot, which of course was a key ingredient to the Summers decision.
Unfortunately for Tice, he apparently did not strike the trial judge (it was a bench trial) as a particularly persuasive witness. The judge made findings of fact that “the defendants, and each of them, were guilty of gross negligence in firing a gun in the general direction of the plaintiff”; that Tice’s testimony that he had not fired his gun for minutes prior to the accident was untrue; and that both defendants were using No. 7½ shot.
These findings of fact paved the way for the California Supreme Court’s decision above, following a short-lived reversal by the Court of Appeal.
The lesson, if there is one: Credibility matters.
Summers v. Tice, kind of
December 1, 2011 at 6:50 pm
Posted in: History of Law, Tort Law
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“Mad Men” Meets Prosser?
posted by Kyle Graham
I recently visited the American Law Institute archives, maintained by the University of Pennsylvania. There, I dove into the ALI records that relate to the development the Restatement (Second) of Torts. The documents I saw reveal a great deal about the creation of this treatise, and the atmosphere in which it was prepared.
For example, have you ever wondered what the scholars responsible for the Restatement drank, when they met back in the 1950s? Me neither, but I was nevertheless impressed by this beverage menu for a 1956 meeting of the Second Restatement’s advisory committee. If nothing else, it establishes that the committee had the good sense to repair to an establishment that offered both manhattans and martinis by the gallon.
But, one might think, the fact that these drinks were available at the meeting doesn’t mean that they were consumed there. Well, before taking a position on this question, it might be wise to review this schedule for the session, which indicates that drinks were to be served before lunch, at lunch, and at the close of each day’s discussions.
(Images courtesy the University of Pennsylvania University Archives and Records Center, American Law Institute Archives [Restatement (Second) Category; Restatement (Second) Torts Record Group, Box 25, File Folder 25-2])
December 1, 2011 at 3:21 am
Posted in: History of Law, Tort Law
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Recommended Reading: Gregory Keating’s Fairness Theory, New Papers on Rylands and Nuisance
posted by Danielle Citron
Professor Gregory Keating has two new pieces up on SSRN, both illuminating and important. A quick overly-brief primer: Keating’s fairness theory provides the “moral logic” for treating strict enterprise liability as the modern default rule for tort law. It requires an enterprise to compensate individuals injured by its risky, yet profitable activities if the victim does not benefit from those activities to the same extent that the enterprise does. In that sense, strict liability exacts a just price for an enterprise’s freedom to engage in profitable activities where the victim did not similarly enjoy such a liberty but nonetheless suffered injury. In the abstract included below for Recovering Rylands: An Essay for Bob Rabin (forthcoming DePaul Law Review), Keating celebrates and builds upon Robert Rabin’s article “The Historical Development of the Fault Principle,” providing a moral and historical account of Rylands v. Fletcher’s strict liability alternative to fault liability while recognizing its practical limitations. After the jump, I will include the abstract for Keating’s Nuisance as a Strict Liability Wrong. Here is the abstract for Recovering Rylands:
This paper, written for a Clifford Symposium Festschrift for Robert Rabin, comments on his lovely, widely admired, and yet still underappreciated paper The Historical Development of the Fault Principle: A Reinterpretation. Rabin’s paper teaches us something essential about the character and structure of modern tort law at the moment of its genesis, and it reminds us of the even more general truth that what the law does not cover is at least as important as what it does cover. The Historical Development of the Fault Principle is constructed around a simple, but powerful, distinction between fault as a breach of duty and fault as a cause of action. Negligence as a cause of action is an institution, a system of related rules, concepts, principles and policies. This simple but penetrating observation transforms the question of just what is at stake in the conventional thesis that the late nineteenth century was the heyday of “universal fault liability.”
Whether or not fault liability was “universal” at the end of the nineteenth century turns, Rabin teaches, not on whether tort liability for accidental injury is constructed around fault or strict liability. The “universality” of fault liability is, rather, a question about the percentage of the legal landscape for unintentional harm that the institution of negligence liability governs. Building on this point, The Historical Development of the Fault Principle shows that the age of “universal fault liability” is better described as an age where “no duty” predominated. Tort liability – fault liability retreated whenever contract was capable of taking hold of a domain of accidental injury. It retreated both in the presence of contractual relations (in the workplace context) and in the absence of contractual relations (in the product context). Property, contract, and “no duty” all trumped tort. This insight not only changes our understanding of the rise of fault liability; it also provides a powerful rebuttal of the still influential, if waning, view that the common law of torts circa 1870-1905 was economically efficient.
Rabin’s critique leaves intact the thesis that negligence liability itself emerged as a freestanding form of tort liability at the end of the nineteenth century. Prior to that time, negligence was merely the mental element of a number of discrete, nominate torts. Late in the nineteenth century, negligence transforms into a norm of conduct and thereby emerges as a distinctive form of tort liability. This development sets the stage for the expansion of fault liability into the domains of product accidents, landowner liability, and some forms of pure economic and emotional harm. The late nineteenth century thus sets the stage for the “universal fault liability” that it so conspicuously fails to achieve.
Recovering Rylands argues that Rylands v. Fletcher represents a parallel development with respect to strict liability. Rylands generalizes ancient forms of liability in nuisance and trespass into a coherent, general alternative to fault liability. The opinions in the case both articulate strict liability as a general principle of responsibility for harm done and clarify the fundamental perception on which strict liability rests, namely, that harm justifiability inflicted – harm which is unavoidable in the sense that it should be inflicted – can trigger responsibilities of repair. The idea that the justified infliction of harm gives rise to responsibilities of repair stands in sharp contrast to the root premise of fault liability, and accounts for the enduring significance of strict liability as form of legal responsibility for harm done.
After excavating the basis and nature of strict liability in Rylands, the paper traces the ebb and flow of the strand of strict liability that it inspired over the past century and a half. On the one hand, that history shows that fault liability is never universal, though generally dominant. On the other hand, that history suggests that the difficulty of attributing harms to activities without deploying a fault criterion may be a permanent, insurmountable barrier to universal, common law strict liability. Last, but surely not least, Rylands’ articulation of strict liability as a general idea is an essential part of the formative moment of modern tort law that Bob Rabin did so much to help us understand. Adding an account of Rylands is a way of building on his seminal contribution. Read the rest of this post »
October 6, 2011 at 8:18 am
Posted in: Legal Theory, Tort Law
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Assumption of Risk and Product Liability
posted by Gerard Magliocca
Today I taught assumption of risk in Torts and was struck for the first time by a parallel between that doctrine and product liability law. Perhaps others have already noticed the point that I’m about to make, but if so I was unaware of the connection.
In most assumption-of-risk cases, we are asking if a defendant should be found negligent in a circumstance where an activity undertaken by the plaintiff contains an element of danger that is exhilarating. For example, somebody who falls on an ice rink cannot successfully claim that the rink was negligently maintained because it was slippery. Why? Because ice skating would not be enjoyable if it was too safe. A similar rationale applies to many other recreational activities that involve risks that are thrilling.
What are the exceptions to this idea? One would be if the defendant operated the activity in a way that increased the normal risk of harm in a substantial and unanticipated way. A rink with thin ice that people fall through, for instance, is not a risk that a skater would reasonably anticipate. Another is that a leisure activity could simply be too hazardous. Society may conclude that certain sports (e.g. boxing) should be banned no matter how well they are run or how many people want to play. Finally, there might be situations in which the defendant did not adequately warn a plaintiff of the conventional risks of the activity.
These three limits to the assumption of risk are nearly identical to the three types of product liability defect. A manufacturing defect involves a product that does not perform as expected and causes harm. A design defect involves a product that works perfectly well but is judged to be too dangerous. And a warning defect involves an insufficient description of a product’s risk.
I’m not sure what to make of this analogy, but perhaps one body of law can shed light on the other.
September 27, 2011 at 8:03 pm
Posted in: Tort Law
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YLJ Online Symposium: Climate Justice and the Elusive Climate Tort
posted by Yale Law Journal
The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the third installment of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).
In Climate Justice and the Elusive Climate Tort, Professor Maxine Burkett considers AEP from the perspective of climate justice, a field that focuses on the “intersection of race and/or indigeneity, poverty, and climate change.” She argues that by rejecting common law nuisance claims in AEP, the Court precludes a valuable mechanism for ensuring climate justice. Her commentary centers on the Ninth Circuit case Native Village of Kivalina v. ExxonMobil Corp., in which an Inupiat community in Alaska is seeking compensation from world’s largest oil companies for global warming-induced damage to the group’s ancestral homeland. Professor Burkett proposes an interpretation of AEP that potentially would allow the claims in Kivalina to survive. Ultimately, she concludes that in the post-AEP world, lower courts can distinguish “between the injunctive relief sought in AEP and the compensatory relief sought in Kivalina”; while AEP may preclude injunctive relief, the lingering possibility of compensatory damages in climate-change cases suggests that “the disparately impacted may enjoy appropriate recourse.” According to Professor Burkett, courts play a role that regulations cannot usurp: “climate tort claims would be the courts’ distinct contribution to what will hopefully be a diverse and multi-layered commitment to rectifying, at least in part, the losses of the climate vulnerable.”
The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.
September 15, 2011 at 10:18 pm
Posted in: Law Rev (Yale), Tort Law
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Qualified Immunity and Nominal Damages
posted by Gerard Magliocca
James Pfander recently posted an interesting essay on qualified immunity that will be coming out in Columbia Law Review. His idea is that the Supreme Court should hold that if someone sues a government official for a constitutional tort and seeks nominal damages (in other words, $1), qualified immunity should not apply. His argument is that this will lead to more clarity with respect to constitutional rights while protecting officials from liability for their actions when the law is unclear. I am sympathetic to this approach, as I’ve posted many times about my dissatisfaction with the state of qualified immunity doctrine.
Nevertheless, I’m not sure how effective this reform would be. First, how many plaintiffs will be willing to forego the possibility of a monetary settlement? The answer is not zero, but it may not be enough have an impact. Second, a suit for nominal damages still subjects state officials to burdensome discovery, and the desire to shield them from that is one of the rationales for qualified immunity. Thus, I am not sure that the Court would go in the direction that Pfander suggests. Finally, the lower federal courts have generally rejected the position taken by the Essay, which does create an uphill struggle to get the Supreme Court to adopt the opposite view.
July 21, 2011 at 4:25 pm
Posted in: Tort Law
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No More Secret Dossiers: We Need Full FTC or CFPB Investigation of “Fourth Bureau” Reputation Intermediaries
posted by Frank Pasquale
There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the “fourth bureau.” The Federal Trade Commission should conduct an immediate investigation of the “black box” practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of “secret dossiers” about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors.
Once a critical mass of data about a person has been collected for a commercial purpose, she deserves to know what the data is and who is gathering it. Once an educator, employer, landlord, banker, or insurer makes a decision based on that data, the affected individual should be able to challenge and correct it. I have made a preliminary case for such reforms in my chapter Reputation Regulation, in this book. I now think this agenda is more urgent than ever, given the creeping spread of unaccountable data mining in the internet sector to a wild west of reputational intermediaries.
From a Fair Credit Reporting Act to a Fair Reputation Reporting Act
To understand why, it’s helpful to take a step back and look at how poorly regulated even the established credit bureaus are. As Shawn Fremstad and Amy Traub have noted in the Demos report Discrediting America, ample empirical evidence has confirmed that a vast number of traditional credit bureau files are erroneous:
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July 17, 2011 at 11:16 pm
Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Privacy (Law Enforcement), Privacy (Medical), Psychology and Behavior, Technology, Tort Law
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Drip, Drip, Drip: The Statistical “Certainty” of Data Leaks
posted by Danielle Citron
Ponemon Institute’s latest survey showed that 90% of businesses of every size reported at least one data breach in the past 12 months. More than half of the respondents said that they suffered more than two breaches in that same time period. That same number of respondents also noted that they had little confidence that they could prevent another cyber attack in the coming months. 77% found the attacks more difficult to contain while 43% saw an increase in cyber attacks. Only 40% could identify where the breaches originated. The source of the data breaches? According to the report, malicious insiders caused 52% of the incidents while the rest of the breaches were the result of malicious software, either as downloads, embedded on a rogue site, or distributed by social network sites. The Ponemon Institute explains that: “The threat from cyber attacks today is nearing statistical certainty and businesses of every type and size are vulnerable to attacks.”
The problem is widespread and expensive. Since 2005, there’s been more than 534 million breaches, including personal medical records, Social Security numbers, and credit card numbers. According to a 2009 Javelin Research & Strategy study, individuals are four times more likely to be victims of identity theft after receiving a data breach notification letter. Identity theft victims spend more than $1000 in out-of-pocket expenses and hundreds of hours of personal time to clean up their credit reports. It’s a mess.
Many companies say there’s little they can do about it, including firms that can afford sophisticated security systems like Lockheed Martin Tech departments often blame data breaches on the complexity of networks and financial resources. Of course, the risk could be better managed by giving employees better training to preven them from downloading malware to their laptops and mobile devices.
But the Ponemon study and others like it provide support for the notion that our current tort approach to these problems–a negligence regime–is inadequate. Negligence won’t address the signficant number of leaks that will occur despite companies’ exercise of due care over personal data. Security breaches are an inevitable byproduct of collecting sensitive personal information in networked systems. No amount of due care will prevent a substantial amount of sensitive data from escaping into the hands of cyber criminals. Such data leaks constitute the predictable residual risks of what I’ve called ”information reservoirs of danger.” As I’ve argued (and here too), negligence won’t efficiently manage the residual risks of hazardous databases. It would neither induce companies to change their activity level nor discourage marginal actors from collecting sensitive information because such operators need not pay for the accident costs of their residual risk. The high levels of residual risk suggest treating cyber reservoirs as ultrahazardous activities–those with significant social utility and significant risk–that warrant strict liability. Recent Senate and House proposed privacy bills don’t go that far (or even in the ball park) as far I can tell. I will be blogging about the impending Franken geolocation privacy bill that’s soon to drop, though for other reasons, it will have interesting cyber stalking provisions. More soon.
July 1, 2011 at 12:16 pm
Posted in: Privacy, Privacy (Consumer Privacy), Technology, Tort Law
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Review of Reconsidering Law and Policy Debates: A Public Health Perspective
posted by Frank Pasquale
Reconsidering Law and Policy Debates: A Public Health Perspective, edited by John Culhane, is a superb collection of thought-provoking essays which features some of the most well-regarded health law scholars in the US. It also includes contributors from schools of public health, public affairs, and public administration. The chapters are uniformly well-written and instructive. Though I cannot in this brief review give consideration to all of the essays, I will try to highlight contributions related to some of my own areas of interest in the intersection between public health and medico-legal research.
Several authors focus on the difficult questions raised by extreme inequality. For example, Vernellia R. Randall’s Dying While Black in America reflects on the disturbing disparity between white and black death rates in the US. A black American male can expect to live seven years less than a white American male, and black women face a four-year gap. Randall explores a number of potential explanations, including discriminatory policies and practices, lack of language and culturally competent care, inadequate inclusion in healthcare research, and hidden discrimination in rationing mechanisms. Randall argues that these disparities will never be addressed effectively until the legal system develops doctrines that can deter not only intentional discrimination, but also “negligent discrimination in healthcare:”
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June 1, 2011 at 10:08 am
Posted in: Book Reviews, Civil Rights, Health Law, Law and Inequality, Tort Law
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Making fair funds fairer
posted by Kaimipono D. Wenger
The PENNumbra website (online companion to the Pennsylvania Law Review) is spotlighting a recent article by Adam Zimmerman and David Jaros which proposes building class-action-like protection into the high-profile criminal restitution actions that have dominated the news in recent years. In The Criminal Class Action, Zimmerman and Jaros examine cases such as Bernie Madoff, noting that,
The past decade has witnessed the rise of new, massive settlements forged not out of civil litigation but on the periphery of the criminal justice system. Since 2003, prosecutors have demanded that defendants in a variety of high-profile corporate scandals set up multimillion-dollar restitution funds for victims to settle criminal charges. Yet few rules exist for the prosecutors who create and distribute these complex settlements.
May 25, 2011 at 5:17 pm
Posted in: Criminal Law, Securities, Tort Law
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Tort Anniversaries
posted by Danielle Citron
Today, March 24, is the centennial of the date on which the New York Court of Appeals issued its opinion in Ives v. South Buffalo Railway Co., 201 N.Y. 271 (1911). Many criticize Ives for its historical inaccuracy and poor reasoning. So why is such an ignominious opinion deserving of recognition? Because it, and other opinions of similar ilk, helped spawn the legal realist movement and, as many have said, “We are all legal realists now.” And because many students at his law school and the nation’s other best law schools began their study of Torts with Ives.
Tomorrow, March 25, is the centennial of the Triangle Shirtwaist Fire. Shulman, James, Gray and Gifford’s Cases and Materials on the Law of Torts tells the story:
On March 25, 1911, 146 workers, most of them Jewish and Italian immigrant women and girls between the ages of thirteen and twenty-three, died in less than fifteen minutes in a fire at the Triangle Shirtwaist factory near Washington Square in New York City. The fire began shortly before 4:30 p.m. on the eighth floor and it spread quickly, fed by thousands of pounds of rags and other fabric. Most of the deaths occurred on the ninth floor, where the doors to the fire escape were locked shut. The majority of the victims were suffocated or burned to death inside the building, but many others died when they leaped to the pavement below:
“The girls rushed to the windows and looked down at Greene Street, 100 feet below them. Then one poor little creature jumped. There was a plate glass protection over part of the sidewalk, but she crashed through it, wrecking it and breaking her body into a thousand pieces.” New York Times, March 26, 1911, p.1.
The two owners of the company were charged with manslaughter, but acquitted. Twenty-three individual civil suits were brought by the families of the victims, and on March 11, 1913, they culminated in awards that averaged $75 per death.
Nine days after the fire, Local 25 of the International Ladies Garment Workers’ Union organized a rally in memory of the workers. The number of those who marched was variously estimated at between 120,000 and 400,000. Within a month, the governor of New York appointed the Factory Investigating Commission which conducted statewide hearings into the condition of working people. It was co-chaired by Robert F. Wagner, later a United States Senator and a principal author of the Fair Labor Standards Act of 1938 and the National Labor Relations Act (the “Wagner Act”), and Alfred E. Smith, later governor of New York and Democratic nominee for the presidency, and included Samuel Gompers, the president of the American Federation of Labor. The Commission’s work ultimately resulted in the passage of important factory safety legislation, the constitutionality of which the courts upheld. The Triangle Shirtwaist Fire is now regarded as a turning point in the struggle for social justice and workers’ rights. The public reaction to the fire, moreover, combined with the public reaction to the nearly simultaneous release of the Ives opinion, led to an amendment to the New York Constitution designed to permit workers’ compensation legislation.
H/T: DG
March 24, 2011 at 1:57 pm
Posted in: Tort Law
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Thoughts on Snyder v. Phelps and Future Cases
posted by Danielle Citron
Thanks so much to Professor Neil Richards (who generously serves as our First Amendment guest expert) for his thoughts on Snyder v. Phelps. This post aims to build on his insights and contemplates the opinion’s implications for cases of targeted online hate. In Snyder, Justice Roberts, speaking for the majority, underscored that speech on public affairs “occupies the highest rung of the hierarchy of First Amendment values” and thus deserves “special protection.” The majority contrasted speech on “matters of purely private significance,” explaining that it enjoys less rigorous First Amendment protection because restrictions on such speech fail to threaten “meaningful dialogue of ideas” or to risk “‘self-censorship’ on matters of public import.” Seemingly reflecting its intention to chart a wide territory for matters of public import to provide breathing speech for public discourse, the majority provided select, narrow examples of purely private speech, such as an individual’s credit report and videos of someone engaging in sexually explicit acts. The majority found that the Church engaged in speech on public affairs because it critiqued broad policies such as the government’s stance on gays in the military (even though some of its signs did target Matthew Snyder and his family) and because the protest occurred in a “public place adjacent to a public street,” the archetype of a traditional public forum that enjoys special First Amendment protection.
The majority rejected the Snyder family’s argument that the protests constituted personal attack on private individuals because Westboro had long spoken on the subjects addressed in its picketing and because “no pre-existing relationship or conflict” existed between Westboro and the Snyders that might suggest that “Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.” In other words, the Court seems to be saying that Westboro’s speech did not concern a “purely private matter” because the group had long held hateful views (such as “God Hates Fags”) and because it had no personal relationship or conflict with the Snyders before the attack. Herein lies a concern with the Court’s division of the speech universe between speech on public matters and those involving “purely“ private ones. Some severely emotionally-damaging harassment of individuals stems from a perpetrator’s general hateful beliefs and involves victims who are strangers to the perpetrator.
Consider a neo-Nazi group’s online harassment of Bonnie Jouhari. Posters on a white supremacist website targeted Ms. Jouhari, a civil rights advocate and mother of a biracial girl. They revealed her home address and her child’s picture. The site showed a picture of Ms. Jouhari’s workplace exploding in flames next to the threat that “race traitors” are “hung from the neck from the nearest tree or lamp post.” Posters included bomb-making instructions and a picture of a hooded Klansman holding a noose. Ms. Jouhari suffered headaches and anxiety, and her daughter was diagnosed as suffering from severe post-traumatic stress disorder. With the majority’s reasoning in hand, perpetrators of similar attacks might insist that intentional infliction of emotional distress claims should fail because they had long held discriminatory views, which can be understood as political objections to anti-discrimination laws, and had no previous contact with the individuals that they targeted. They might contend that such attacks constituted protest on a matter of public concern, not a purely private matter deserving less First Amendment protection. Justice Breyer, in concurrence, alluded to just such a problem. Breyer asked: “suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.”
March 6, 2011 at 2:44 pm
Posted in: Constitutional Law, Cyber Civil Rights, First Amendment, Tort Law
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The Ugly Persistence of Internet Celebrity
posted by Danielle Citron
Many desperately try to garner online celebrity. They host You Tube channels devoted to themselves. They share their thoughts in blog postings and on social network sites. They post revealing pictures of themselves on Flickr. To their dismay though, no one pays much attention. But for others, the Internet spotlight finds them and mercilessly refuses to yield ground. For instance, in 2007, a sports blogger obtained a picture of a high-school pole vaulter, Allison Stokke, at a track meet and posted it online. Within days, her picture spread across the Internet, from message boards and sport sites to porn sites and social network profiles. Impostors created fake profiles of Ms. Stokke on social network sites, and Ms. Stokke was inundated with emails from interested suitors and journalists. At the time, Ms. Stokke told the Washington Post that the attention felt “demeaning” because the pictures dominated how others saw her rather than her pole-vaulting accomplishments.
Time’s passage has not helped Stokke shake her online notoriety. Sites continuously updated their photo galleries with pictures of Stokkes taken at track meets. Blogs boasted of finding pictures of Stokke at college with headings like “Your 2010 Allison Stokke Update,” “Allison Stokke’s Halloween Cowgirl Outfit Accentuates the Total Package,” and “Only Known Allison Stokke Cal Picture Found.” Postings include obscene language. For instance, a Google search of her name on a safety setting yields 129,000 results while one with no safety setting has 220,000 hits. Encyclopedia Dramatica has a wiki devoted to her (though Wikipedia has faithfully taken down entries about Ms. Stokke).
January 30, 2011 at 6:16 pm
Posted in: Cyber Civil Rights, Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Gossip & Shaming), Social Network Websites, Technology, Tort Law, Wiki
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Bright Ideas: Chamallas and Wriggins on The Measure of Injury
posted by Kaimipono D. Wenger
Today’s Bright Idea comes from Martha Chamallas and Jenny Wriggins. Martha Chamallas is the Robert J. Lynn Chair in Law at the Ohio State University, Moritz College of Law and is the author of Introduction to Feminist Legal Theory, and Jenny Wriggins is the Sumner T. Bernstein Professor of Law at the University of Maine School of Law. Both Martha and Jenny have written extensively about some of the ways in which tort law fails to adequately respond to the experiences of marginalized groups such as women and racial minorities. In The Measure of Injury, published earlier this last year by NYU Press, the authors draw on their expertise (and a stunning array of mind-boggling real-life examples) to systematically demonstrate that tort law undervalues women and racial minorities, both historically and into the present. It’s an incredibly valuable contribution which also makes for a fascinating read. For the Bright Ideas series, we asked the authors a few questions about the book and also about their larger project.
1. As a general observer it seems to me that there is a moderately widespread public perception that race and gender inequalities are largely a thing of the past. What would you say in response to that idea?
The conventional wisdom about tort law certainly is that the field is gender and race neutral. In that respect, our book’s emphasis on gender and race bias cuts against the grain. In writing this book, we had to confront the reality that few people realize that tort law was historically marked by sharp distinctions based on race and gender. This lack of awareness contrasts with general assumptions about other parts of the legal system. There is a widespread perception, for example, that at one time the criminal justice system was racist. Historical inequalities in tort law, however, are just as striking and also merit attention, particularly since their legacies are imprinted in contemporary law. Read the rest of this post »
January 6, 2011 at 10:43 am
Posted in: Book Reviews, Bright Ideas, Feminism and Gender, Race, Tort Law
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Economic Analysis of Tort Law, Why Bother?
posted by Sasha Romanosky
In previous posts (here and here), I suggested that analytical modeling can be useful to better understand data breaches, information disclosure laws and the costs to both companies and individuals because of these laws. I’d like to now expand on those ideas.
To be clear, there are many kinds of models and modeling approaches but what I’m interested in is the economic analysis of tort law. For those not aware, this approach is concerned with the cost of accidents to an injurer and a victim and it analyzes how various policy rules (typically regulation or liability) can minimize the sum of those costs.
The way I’ve come to interpret and apply models (e.g. mathematical equations) is to illustrate how agent’s incentives change under different policy interventions. For example, if companies are forced to notify consumers of a data breach, will they be induced to spend more or less money protecting consumer data? Will individuals take more or less care once notified? Will these actions together increase or decrease overall social costs?
December 22, 2010 at 12:41 pm
Posted in: Cyberlaw, Economic Analysis of Law, Legal Theory, Privacy (Consumer Privacy), Privacy (ID Theft), Tort Law
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The Slow Demise of Defamation and the Privacy Torts
posted by Daniel Solove
The ABA Journal reports that the number of libel suits has been steadily dropping in the United States:
During his 30 years as a lawyer for the New York Times Co., George Freeman says, the “Gray Lady” faced four to five new libel suits per year, on average, and has had maybe eight pending against it at any one time. But that’s all changed.
Currently the New York Times is facing no libel suits, and the parent company faces just one in the U.S. “There’s been a fairly steep decline” in the last few years, he says. “The real question is whether it’s cyclical, as sometimes happens, although never quite to this degree, or whether there are other factors at play.”
The Times is definitely not alone, and the trend appears to have rolled out over two or three decades—not years—according to research from the Media Law Resource Center. The number of trials of libel, privacy and related claims against the media fell from 266 in the ’80s to 192 in the ’90s to 124 in the 2000s. In 2009, only nine such trials were held.
Why is this happening? Is it because there’s much less defamation or invasion of privacy today? I strongly doubt that’s the reason. Instead, I can think of several reasons for the decline in defamation and privacy trials:
1. Defamation lawsuits are very hard to win. Only about 13% are successful. It is thus hard to find lawyers who will take the case.
2. Invasion of privacy lawsuits are also hard to win. The privacy torts are fossilized into the forms they were in circa 1960, and they haven’t evolved to address modern privacy problems. Moreover, courts cling to antiquated notions of privacy that make it hard for plaintiffs to prevail in a data-soaked world.
3. Focusing on trials might be the wrong thing to focus on. Trials themselves are becoming a rarity. Our legal system is overrun with costs, making it an extremely inefficient mechanism to resolve disputes. It is ridiculous that in many cases, the costs of litigating the suit can be greater than the actual money at stake in the lawsuit. Cases get settled just to avoid these costs.
October 11, 2010 at 4:42 pm
Posted in: First Amendment, Privacy, Privacy (Gossip & Shaming), Tort Law
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Skyhook v. Google: Not An Obvious Winner
posted by Lawrence Cunningham
In a David-and-Goliath situation, Skyhook Wireless, the small young Boston innovator of mobile position system technology, yesterday sued Google, alleging tortious interference with contract and other claims under Massachusetts law. Despite a well-pled complaint, unless amended, the allegations don’t appear to satisfy the requirements for contractual interference under Massachusetts law—particularly the requirement of an improper motive.
Skyhook in 2009 formed a contract with Motorola to supply its proprietary positioning system, XPS, in the latter’s phones, including phones designed to run Google’s new smartphone operating system, Android. The suit says XPS complied with Google’s technical requirements that Motorola was bound to meet. But Google, also developing its own positioning system, Google Location Service, appeared to be interested in using that technology in Android products, not XPS.
In mid-July, Motorola was prepared to launch XPS technology in its phones for use with the Android system, but Google told Motorola it wouldn’t accept phones using XPS, the complaint says. It alleges Google did this under the false pretense that XPS wasn’t compatible with Android, though it let another product with similar features be used; it also told Motorola that it would have to notify users that XPS technology could collect data from and about them without specific notification.
Skyhook says Google knew these directives would induce Motorola to capitulate to using Google Location Service rather than XPS, meaning Motorola would breach its contract with Skyhook. That may sound like a sympathetic tale, but it’s hard to see what’s legally improper about what Google allegedly did. A close parallel case in the Massachusetts courts concerned the tortious interference claim the New England Patriots brought a few years ago against StubHub.
September 16, 2010 at 12:50 pm
Posted in: Contract Law & Beyond, Technology, Tort Law
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