Law Commons^™

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …

Incentives To Take Care Under Contributory And Comparative Fault, Keith N. Hylton, Benjamin Ogden

Faculty Scholarship

Previous literature on contributory versus comparative negligence has shown that they reach equivalent equilibria. These results, however, depend upon a stylized application of the Hand Formula and an insufficiently coarse model of strategic incentives. Taking this into account, we identify a set of cases where care by one agent significantly increases the benefits of care by the other. When such cases obtain under bilateral harm, comparative negligence generates greater incentives for care, but this additional care occurs only when care is not socially optimal. By contrast, under unilateral harm or asymmetric costs of care, contributory negligence creates socially excessive care. …

Expert Witness Malpractice, Michael Flynn

Faculty Scholarship

No abstract provided.

The Macpherson-Henningsen Puzzle, Victor P. Goldberg

Faculty Scholarship

In the landmark case of MacPherson v. Buick, an automobile company was held liable for negligence notwithstanding a lack of privity with the injured driver. Four decades later, in Henningsen v. Bloomfield Motors, the court held unconscionable the standard automobile company warranty which limited its responsibility to repair and replacement, even in a case involving physical injury. This suggests a puzzle: if it were so easy for firms to contract out of liability, did MacPherson accomplish anything?

Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu

Faculty Scholarship

We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …

Contract Law And The Hand Formula, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton

Faculty Scholarship

This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of …

Causation In Tort Law: A Reconsideration, Keith N. Hylton

Faculty Scholarship

Causation is a source of confusion in tort theory, as well as a flash point for the debate between consequentialist and deontological legal theorists.¹ Consequentialists argue that causation is generally determined by the policy grounds for negligence, not by a technical analysis of the facts.² Conversely, deontologists reject the view that policy motives determine causation findings.

Causation has also generated different approaches within the consequentialist school. Some take an essentially forward- looking approach to formalizing causation analysis, finding causation analysis to be subsumed within the Hand Formula.⁴ Another approach within the consequentialist school closely examines the incentive …

Negligence, Causation, And Incentives For Care, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

We present a new model of negligence and causation and examine the influence of the negligence test, in the presence of intervening causation, on the level of care. In this model, the injurer's decision to take care reduces the likelihood of an accident only in the event that some nondeterministic intervention occurs. The effects of the negligence test depend on the information available to the court, and the manner in which the test is implemented. The key effect of the negligence test, in the presence of intervening causation, is to induce actors to take into account the distribution of the …

The Domagala Dilemma-Domagala V. Rolland, Michael K. Steenson

Faculty Scholarship

In Domagala v. Rolland, the Minnesota Supreme Court granted review in a personal injury case that was dominated by duty and special relationship issues, even though the parties agreed that there was no special relationship between them. The case, straddling the misfeasance/nonfeasance line, was complicated by the defense theory (that the lack of a special relationship meant that the defendant owed no duty to protect or warn the plaintiff), and the plaintiff’s theory (that the defendant owed a duty of reasonable care to the plaintiff because he acted affirmatively, even if the risk to the plaintiff did not become apparent …

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Recovery Of “Intrinsic Value” Damages In Case Of Negligently Killed Pet Dog, William A. Reppy Jr., Calley Gerber

Faculty Scholarship

The North Carolina Court of Appeals, in a case where negligent killing of a pet dog with no market value was admitted, has denied recovery of “intrinsic” damages (also called “actual” damages). Shera v. NC State University Veterinary Teaching Hospital, 723 S.E.2d 352 (N.C. App. 2012). Because the holding is narrow and the type of damages denied are not the same as emotional damages, a close look at the decision is warranted.

New Private Law Theory And Tort Law: A Comment, Keith N. Hylton

Faculty Scholarship

This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It …

Minnesota Negligence Law And The Restatement (Third) Of Torts: Liability For Physical And Emotional Harms, Michael K. Steenson

Faculty Scholarship

The purpose of this article is to provide a foundation for judges and lawyers, primarily in Minnesota, who are seeking to understand how the Third Restatement’s approach to negligence law fits with Minnesota negligence law. The first Part of the article examines the approach of the Third Restatement. Because decisions in other states applying the Third Restatement will be important for courts in Minnesota and elsewhere in deciding whether to apply the Third Restatement, the second Part examines early reports on the Third Restatement in Iowa, Nebraska, Arizona, Wisconsin, Tennessee, and Delaware.

Property Rules And Defensive Conduct In Tort Law Theory, Keith N. Hylton

Faculty Scholarship

What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine?

To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee

Faculty Scholarship

No abstract provided.

Retributivism Refined - Or Run Amok?, Kenneth Simons

Faculty Scholarship

What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors - Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse - provide a controversial set of answers. Whether a criminal act does ordoes not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced …

Juries And Medical Malpractice Claims: Empirical Facts Versus Myths, Neil Vidmar

Faculty Scholarship

Juries in medical malpractice trials are viewed as incompetent, anti-doctor, irresponsible in awarding damages to patients, and casting a threatening shadow over the settlement process. Several decades of systematic empirical research yields little support for these claims. This article summarizes those findings. Doctors win about three cases of four that go to trial. Juries are skeptical about inflated claims. Jury verdicts on negligence are roughly similar to assessments made by medical experts and judges. Damage awards tend to correlate positively with the severity of injury. There are defensible reasons for large damage awards. Moreover, the largest awards are typically settled …

Agency And Luck, Joseph Raz

Faculty Scholarship

Advancing an account of responsibility which is based on the functioning of our rational capacities, the paper revisits some central aspects of the moral luck puzzle. It proposes a new variant of Williams’ agent-regret, but concludes that its scope does not coincide with cases of moral luck. It then distinguishes different ways in which the factors beyond our control feature in our engagement with the world which show how the guidance principle (we are responsible for actions guided by our rational powers) recognises a narrower range of situations of moral luck than is often supposed, allowing to distinguish between responsibility …

Tort Arbitrage, Robert J. Rhee

Faculty Scholarship

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the operational realities of the dispute resolution process and the negligence standard. Applying a theory of bargaining based on asset pricing principles of financial economics, this Article argues that there is systematic devaluation of tort claims in the civil litigation system. This results because in essence the parties value different tort transactions, even when they are tied together in a common dispute and view the facts and laws similarly. For the party that can mitigate the risk exposure, the discount to value …

Preemption And Products Liability: A Positive Theory, Keith N. Hylton

Faculty Scholarship

In a large number of products liability lawsuits, sellers assert that plaintiffs' claims should be rejected because their products fall under some federal regulatory regime, and that the regulatory statute takes precedence over or preempts state tort law. This paper is an attempt to set out a positive theory of the doctrine on preemption of products liability claims. The federal case law is largely consistent with an approach that seeks to minimize the costs of erroneous decisions to preempt tort lawsuits. In particular, two factors explain many of the outcomes of the preemption cases in federal courts: agency independence and …

A Positive Theory Of Strict Liability, Keith N. Hylton

Faculty Scholarship

In spite of its tenure as the prevailing economic theory of strict liability, the proposition that strict liability should be preferred to negligence when it is desirable to reduce injurers' activity levels rather than victims' activity levels raises a few questions. First, when should we prefer to reduce injurers' activity levels rather than victims'? Second, why should we not hold both victim and injurer strictly liable? This paper provides a model that answers these questions more effectively than the prevailing economic model. The model presented here offers specific predictions that are consistent with the detailed law on strict liability and …

A Watershed Moment: Reversals Of Tort Theory In The Nineteenth Century, Jed Handelsman Shugerman

Faculty Scholarship

This article offers a new assessment of the stages in the development of fault and strict liability and their justifications in American history. Building from the evidence that a wide majority of state courts adopted Fletcher v. Rylands and strict liability for unnatural or hazardous activities in the late nineteenth century, a watershed moment turns to the surprising reversals in tort ideology in the wake of flooding disasters.

An established view of American tort law is that the fault rule supposedly prevailed over strict liability in the nineteenth century, with some arguing that it was based on instrumental arguments to …

Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart

Faculty Scholarship

No abstract provided.

Geographic Variation In Informed Consent Law: Two Standards For Disclosure Of Treatment Risks, David M. Studdert, Michelle M. Mello, Marin K. Levy, Russell L. Gruen, Edward J. Dunn, E. John Orav, Troyen A. Brennan

Faculty Scholarship

We analyzed 714 jury verdicts in informed consent cases tried in 25 states in 1985–2002 to determine whether the applicable standard of care (“patient” vs. “professional” standard) affected the outcome. Verdicts for plaintiffs were significantly more frequent in states with a patient standard than in states with a professional standard (27 percent vs. 17 percent, P = 0.02). This difference in outcomes did not hold for other types of medical malpractice litigation (36 percent vs. 37 percent, P = 0.8). The multivariate odds of a plaintiff’s verdict were more than twice as high in states with a patient standard than …

Tort Negligence, Cost-Benefit Analysis, And Tradeoffs: A Closer Look At The Controversy, Kenneth Simons

Faculty Scholarship

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy.

For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution …

Duty In Tort Law: An Economic Approach, Keith N. Hylton

Faculty Scholarship

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several …