Torts Commons^™

Tort Law And Civil Recourse, Mark A. Geistfeld

Michigan Law Review

A Review of Recognizing Wrongs. by John C.P. Goldberg and Benjamin C. Zipursky.

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

Let Us Never Blame A Contract Breaker, Richard A. Posner

Michigan Law Review

Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.

Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman

Michigan Law Review

Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …

What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok

Michigan Law Review

Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation's Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to "reform" tort law throughout the 1980s. There was concern that Americans "egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being." The RAND report argued that the real risk of a torts "explosion" came from the world of mass …

Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang

Michigan Law Review

Part I of this Note reviews recent literature on the need for asymmetric discount rates in cost-benefit analysis. It observes that even though scholars disagree on the precise value of the appropriate discount rate, many agree that future costs and benefits must be discounted at different rates. Part II then constructs a simple model, consisting of two activities competing for the same resource, and analyzes the consequences of asymmetric discounting under this model. This Part proposes that, to maximize the joint social utility, the resource should be time divided between the competing activities rather than permanently allocated to one or …

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart

Michigan Law Review

Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus …

The Distributive Foundation Of Corrective Justice, Hanoch Dagan

Michigan Law Review

There are two, apparently conflicting, approaches to private law theorizing. One approach - by now, dare I say, the prevailing approach - analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the "social values school." Other theorists, those who take a corrective justice approach, insist that the adjective "private" is significant and should be the starting point for any understanding of "private law." They claim that this starting point inevitably generates a radically different understanding of private law. Organized …

Outrageous Fortune And The Criminalization Of Mass Torts, Richard A. Nagareda

Michigan Law Review

The case of the blameworthy-but-fortunate defendant has emerged as one of the most perplexing scenarios in mass tort litigation today. One need look no further than the front page of the newspaper to find examples of mass tort defendants said to have engaged in irresponsible conduct - even conduct that one might regard as morally outrageous in character - but that nonetheless advance eminently plausible contentions that they have not caused harm to others. This issue is not merely a matter for abstract speculation. A now-familiar mass tort scenario involves a defendant that markets a product without informing consumers about …

Identifying And Valuing The Injury In Lost Chance Cases, Todd S. Aagaard

Michigan Law Review

Any plaintiff seeking to recover in tort must prove that the defendant has breached the duty of care. Even after the plaintiff has established the defendant's breach of duty, however, issues of causation and damages remain. These two issues are frequently vexing, both conceptually and in terms of evidentiary demonstration. For example, if a plaintiff proves that a defendant acted negligently, it still may be unclear whether the plaintiff would have been injured even ip the absence of the defendant's negligence. Similarly, in assessing damages, factfinders often :find it difficult to attach a monetary value to a plaintiff's nonpecuniary losses …

Turning From Tort To Administration, Richard A. Nagareda

Michigan Law Review

My objective here is to challenge the notion that the recent mass tort settlements - for all their novel qualities in the mass tort area - are truly sui generis in the law. Rather, I contend that the rise of such settlements in tort mirrors the development of public administrative agencies earlier in this century - that, in both instances, powerful new institutions emerged outside preexisting channels of control to wield significant power over human lives and resources. I argue that courts usefully may draw upon familiar doctrines of judicial review in administrative law to form a conceptual framework for …

Rescuing The Revolution: The Revived Case For Enterprise Liability, Steven P. Croley, Jon D. Hanson

Michigan Law Review

The article proceeds as follows. Part I defines important terms and introduces the two-by-four Products Liability Matrix by explaining the eight possible positions that might be taken with respect to the mutability and liability-standard dimensions of products liability. Part II provides a backdrop for the current products liability debate, first by setting out a capsule history of the evolution of the modem products liability regime, and then by explaining the arguments offered by the "first generation" of products liability scholars to justify expanded manufacturer liability. Part II also illustrates the utility of the Products Liability Matrix by locating many of …

Reforming Products Liability, Suzanne M. Lambert

Michigan Law Review

A Review of Reforming Products Liability by W. Kip Viscusi

Corporate Behavior And The Social Efficiency Of Tort Law, John A. Siliciano

Michigan Law Review

This article examines this dissonance between accepted theory and observed reality, between what the model envisions and what the tort system seems to deliver. After sketching the model in greater detail, the first section of the article reviews restraints within tort law on the achievement of efficient outcomes. The analysis then turns to the broader legal environment, and describes how legally sanctioned means of liability evasion - such as the corporate law doctrine of limited liability and the bankruptcy rules permitting discharge of obligations - may further undermine the practical utility of the social efficiency model of tort. The final …

The Constitutionality Of Punitive Damages Under The Excessive Fines Clause Of The Eighth Amendment, Andrew M. Kenefick

Michigan Law Review

This Note explores whether courts should look beyond the broad language in Ingraham v. Wright and scrutinize punitive damages under the excessive fines clause. Part I sets out the intuitive argument that punitive damages are analogous to criminal fines. Part II analyzes the Supreme Court's decision in Ingraham v. Wright and also reviews the few federal and state court decisions that have dealt with the excessive fines clause in civil cases, most of which have concluded that the clause has no application in a civil setting. This Part asserts that courts cannot rely solely on the Ingraham decision but must …

Apocalypse Now?, Richard L. Marcus

Michigan Law Review

A Review of Agent Orange on Trial: Mass Toxic Disasters in the Courts by Peter H. Schuck

Road Signs And The Goals Of Justice, Joseph Sanders

Michigan Law Review

Review of Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem by Guido Calabresi

Asbestos And The Dalkon Shield: Corporate America On Trial, Joseph A. Page

Michigan Law Review

A Review of At Any Cost: Corporate Greed, Women, and the Dalkon Shield by Morton Mintz and Outrageous Misconduct: The Asbestos Industry on Trial by Paul Brodeur

Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review

Michigan Law Review

This Note finds both the Adams and Swift positions unsatisfactory. Part I contends that Adams misconstrued the legislative history of the FTCA amendments by applying a minimal notice standard and then argues that Swift contravenes the amendments' fairness policy by permitting ambiguous, overreaching documentation requests. Part II contends that courts should interpret section 2675's "presented the claim" language as an accommodation between two competing Congressional objectives: presuit claims settlement and fair treatment of claimants. The Note proposes that until the Department of Justice modifies its current claims regulations, courts should toll the statute of limitations whenever an individual's claim includes …

The Taming Of A Duty--The Tort Liability Of Landlords, Olin L. Browder

Michigan Law Review

For one inclined to reform the first-year curriculum in law schools the most simple and comprehensive solution is to expand the treatment of the law on landlord and tenant, and only then break up into the traditional basic subjects to deal with matters not previously covered. Thereby one could embrace all the traditional first-year subjects except Criminal Law, and a good deal more as well.

The other side of this conceit is that one who approaches the modem law of landlord and tenant from traditional property perspectives encounters particular problems that arise from the margins, or along the frontal thrust, …

The Lawsuit Lottery: Only The Lawyers Win, Michigan Law Review

Michigan Law Review

A Book Notice about The Lawsuit Lottery: Only the Lawyers Win by Jeffrey O'Connell

Probability Theory Meets Res Ipsa Loquitur, David Kaye

Michigan Law Review

This Article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. It does not urge that jurors be instructed in probability theory or be equipped with microprocessors. Rather, it seeks an accurate statement of the res ipsa doctrine in ordinary language. In particular, this Article will show that the conventional formulation of the doctrine is misleading at best, and should be replaced with a more careful statement of the conditions warranting the res ipsa inference. To this end, Section I briefly surveys the legal doctrine, or, more precisely, …

Punitive Damages In Products Liability Litigation, David G. Owen

Michigan Law Review

This article will first explore the doctrine of punitive damages and its compatibility with the theories of products liability. The functions of punitive damages and their applicability in the products liability context will then be examined, with particular consideration given to the three complicating factors raised by Judge Friendly in Roginsky. In the following section attention will focus on the various contexts in which manufacturer misconduct has arisen in the reported decisions and a number of unreported cases that have involved this issue. Finally, guidelines will be developed from these cases for determining the appropriateness of punitive damages awards …

Deterring Misuse Of Confidential Government Information: A Proposed Citizens' Action, Joseph J. Kalo

Michigan Law Review

Part I of this article offers two examples-predicated on historical fact-that illustrate the possible adverse consequences of disclosure of confidential government information. Part I also examines present statutory and regulatory safeguards against such disclosure and analyzes their effect. Part II sets forth a proposal for reducing the possibility that confidential government information will be improperly used and for recouping government losses by means of a citizens' action. when it is so used.

Compensation For Pain: A Reappraisal In Light Of New Medical Evidence, Cornelius J. Peck

Michigan Law Review

The theory that a primary causal link exists between the victim's pain and the tortfeasor's acts provides considerable appeal for the proposition that the wrongdoer should compensate for the victim's pain. However, recent investigations of the phenomenon of pain by disciplines of the health sciences have challenged the medical theory upon which recoveries for pain and suffering are based. The results of that work are of obvious interest to the legal profession, for the new view of pain suggests that the tortfeasor's acts bear only a tangential relationship to the pain that some victims experience. The results thus raise questions …

Torts--Wrongful Death--Unborn Child--The Estate Of An Unborn Child Has A Cause Of Action For Wrongful Death--O'Neill V. Morse, Michigan Law Review

Michigan Law Review

The attitude of the law toward the unborn child has differed according to the area involved and its underlying concepts and policy. It has been settled en ventre sa mere be to his benefit. Legal recognition was accorded "for the purpose of providing for and protecting the child, in the hope and expectation that it will be born alive and be capable of enjoying those rights which are thus preserved for it in anticipation." In this context, the live-birth requirement is not surprising. The injustice of depriving a posthumous child of an inheritance is apparent only if the child is …