‘Theorizing Damage Through Reproductive Torts’

Nicky Priaulx, Injuries That Matter: Manufacturing Damage in Negligence, available at BePress. Of the five basic elements of the negligence cause of action (duty, breach, cause-in-fact, proximate cause, damage), the concept of ‘damage’ (sometimes referred to as ‘injury’ or ‘harm’) has probably received the least attention from torts scholars and certainly commands less time in the classroom. Indeed, the comparative lack of discussion likely exacerbates the common tendency to confuse the concept of actionable damage with the related topic of recoverable damages, ie, those specific items of loss (such as medical expenses or sums paid for pain and suffering) that are a consequence of an actionable injury. In the US, controversial claims for negligent infliction of emotional distress and for reproductive injuries, especially wrongful conception and wrongful birth claims, have triggered debates under the headings of duty, proximate cause, or recoverable damages. Recently, however, Gregory Keating has argued that the concept of harm ‘can do more work than it is presently being made to do’, inviting more theorizing about what lies beneath the largely intuitive concept of harm or damage … (more)

[Martha Chamallas, JOTWELL, 29 July]

Conference: The State and Future of Civil Jury Trials, NYU School of Law, 11 September 2015

The Civil Jury Project is delighted to invite you to its inaugural conference, The State and Future of Civil Jury Trials on Friday, September 11, 2015. The conference will be held at NYU School of Law, Lipton Hall located at 108 West Third Street, New York, NY 10012. The new Civil Jury Project at NYU School of Law examines how the civil jury trial became a vanishing feature of the American legal landscape and looks at the consequence for the legal system and society more broadly. The Project will engage in three primary areas of activity … (more, registration)

Marianne Ojo, ‘Decentralisation and the Evolution of Common Law’

This paper is aimed at highlighting how common law has evolved over the centuries, namely through the flexibility accorded to judicial precedents, as well as through the evolutionary nature evidenced in the processes and rules applied in statutory interpretation. In addition to illustrating how informational asymmetries can be mitigated through de-centralisation, facilitated with courts employing the use of non-legal agents such as expert witnesses – as evidenced in the Daubert case. Pepper v Hart also illustrates how common law has evolved through the scope and permissibility of aids to statutory interpretation.

Whilst financial markets and changes in the environment impact legislators, and whilst it is widely accepted that legislation constitutes the supreme form of law, the necessity for judges to introduce a certain level of flexibility will also contribute towards ensuring that legitimate expectations of involved parties are achieved – particularly where the construction of the words within a statute gives rise to considerable ambiguity.

By way of reference to landmark rulings in the United States, cases such as Daubert and The Estate of Edgar A Berg v Commissioner, this paper also aims to illustrate the vital role increasingly assumed by non-legal actors, and why this approach should constitute a trend to be adopted in European common and civil law jurisdictions. This being the case given the failures and flaws of references to Parliamentary material and whether these should be permitted as an aid to the construction of legislation which is ambiguous or obscure, as illustrated in the case of Pepper v Hart.

Ojo, Marianne, Decentralisation and the Evolution of Common Law (July 28, 2015).

Conference: General Principles of Law: European and Comparative Perspectives: Celebrating 20 Years of the Institute of European and Comparative Law: Oxford, 25-26 September 2015

‘General principles of law’ are one of the most visible areas of intersection between EU law and comparative law: as long as they are understood as ‘the general principles common to the laws of the Member States’ (Art 340(2) TFEU) their fleshing out requires careful comparative preparatory work. True, more often than not, the general principles of EU law were not developed on the basis of thorough and textbook style analysis. This does not make it less interesting to look at the interaction of EU law and comparative law in this particular field. Those working together in elaborating general principles of EU law tend to be responsive to input from national laws, and the laws of the Member States have no choice but to be responsive to the general principles developed at EU level … (more)

‘Causation and Care in Tort Law’

“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 …” (more)

[Keith Hylton, New Private Law, 27 July]

Schwartz and Silverman, ‘The Rise of “Empty Suit” Litigation. Where Should Tort Law Draw the Line?’

… This Article focuses on four variants of no-injury theories that are either emerging or experiencing a resurgence in the courts: (1) claims for recovery of emotional harm; (2) liability for the estimated costs of medical monitoring following exposure to a potentially harmful substance absent a physical injury; (3) class action litigation claiming that a product’s actual value was lower than the purchase price or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers; and (4) class actions challenging product labeling or advertising on behalf of all consumers where few, if any, of them were actually misled. In each area, the Article reviews applicable tort law principles, examines how plaintiffs have attempted to circumvent or alter the traditional rule to proceed with no-injury lawsuits, and considers the judicial response to such claims. The Article finds that some courts are slowly easing traditional requirements for recovery solely for emotional harm and a new Restatement is likely to advance this process … (more)

Victor E Schwartz and Cary Silverman, ‘The Rise of “Empty Suit” Litigation. Where Should Tort Law Draw the Line?’, Brooklyn Law Review, Volume 80, Issue 3 (2015).

Richard Epstein, ‘Property Rights in Water, Spectrum, and Minerals’

This essay compares the system of property rights that are in use for land, water, minerals, and spectrum. Each of these systems of property rights is intended to coordinate the activities of large numbers of individuals who are unable to contract among themselves for an arrangement that secures optimal resource use. The solutions that are appropriate vary heavily with the nature of the resource involved, so that the paradigm of exclusive use associated with land fits imperfectly with both mineral rights and the spectrum, but does work well with water rights, which vary immensely with the environment in which they are found. The allocation of rights in question are important not only for resolving private disputes, but should in principle set the ground rules which govern the rules for determining when the government owes compensation for its actions that take or regulate the use of the various forms of private rights.

Richard Epstein, Property Rights in Water, Spectrum, and Minerals. University of Colorado Law Review Volume 86 Issue 2 (2015).

Conference: 30 Years of European Product Liability Law: Faculty of Law, Administration and Economics, University of Wrocław

“… We are confident that the Conference will be an excellent opportunity to discuss whether regulation presently in force in European Union Member States concerning liability for damage caused by defective products, as implemented under Council Directive 85/374/EEC, remains, after 30 years, an adequate legal response to the phenomenon of products brought to market that fail to ensure appropriate levels of safety for their users. The aim of the Conference is to assess if European law will in the near future ensure sufficient safety for individuals using the goods produced by applying technologies currently under development …” (more, registration)

Genevieve Grant, ‘Claiming Justice in Injury Law’

Contemporary personal injury law lives and breathes in the bureaucratic processing of compensation claims. Little empirical legal scholarship has explored claimant experiences in Australian compensation systems, despite their central role in access to justice for the injured.

This article explores claimant experiences in compensation processes using data from a large longitudinal cohort study of patients admitted to hospital with injuries in three states (Victoria, New South Wales and South Australia). At 6 years after injury, participants (n=332) who had pursued claims in transport accident or workers’ compensation claims were interviewed about their experiences. The study highlights the diversity of claimant experiences and key themes in claimant encounters with compensation systems, including the relationship between rights information, advocacy and representation, and the inherent justice-based tensions in claims processing. The findings demonstrate that analysis of claimant experiences of injury law in its primary, bureaucratic form can provide important evidence for the evaluation and development of compensation systems.

Grant, Genevieve, Claiming Justice in Injury Law (July 24, 2015).

John Goldberg, ‘Inexcusable Wrongs’

Tort law has little patience for excuses. Criminal law is more forgiving. It recognizes complete excuses such as duress and provocation, as well as excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why – or in what sense – are torts inexcusable wrongs? This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.

John CP Goldberg, Inexcusable Wrongs. California Law Review, Vol 103, 467 (June 2015).