A Roundup of Torts Scholarship, Development & News
Torts and Compensation Systems Section Annual Newsletter
October 2012
A Roundup of Torts Scholarship, Development & News 2012 1
Table of Contents
Annual Meeting Program ...... 1
William L. Prosser Award Winner...... 2
2013 Prosser Award Nominations ...... 2
Election of Section Officers ...... 3
Recent TortsLaw Symposia ...... 3
Recent Torts Law Scholarship ...... 7
Selected Commonwealth Scholarship . . . . . 15
Selected Recent TortsLaw Books ...... 17
This newsletter was edited by Professor Andrew R. Klein, Paul E. Beam Professor of Law, and Catherine A. Lemmer, Head of Information Services, at the Indiana University Robert H. McKinney School of Law, Indianapolis, Indiana.
Torts Section Program
2013 AALS Annual Meeting, New Orleans
The Torts and Compensation Systems Section is sponsoring what promises to be a stimulating program at this year’s annual meeting in New Orleans on “Tort and Compensation Principles in Related Fields.” This program will be held on Sunday, January 6, 2013, from 2:00 pm – 3:45 pm. Many thanks to our Section Chair, John Valery White, Executive Vice President and Provost, University of Nevada, Las Vegas, William S. Boyd School of Law, for developing and organizing this important program, a description of which follows:
The panel will explore the bi-directional relationship between tort law and other areas of law, including employment law, environmental law, health law, and insurance law. More specifically, this panel will examine the extent to which the fields of employment law, environmental law, health law, and insurance law are dependent on or independent of tort law, the extent to which tort law is drawn upon to inform questions/doctrines in these fields, the extent to which such uses of tort doctrine are sensitive to the tort-based reasons for the
development of the doctrine, and/or the extent to which such uses inform tort law.
The program will be moderated and introduced by John Valery White.
Panelists include:
William R. Corbett, Frank L. Maraist Professor of Law, Louisiana State University. Professor Corbett teaches and writes primarily in the area of labor and employment law. He has served as Executive Director of the Louisiana Association of Defense Counsel since January 2001. Professor Corbett will examine the importation of tort law into employment discrimination and employment law.
Victor B. Flatt, Tom & Elizabeth Taft Distinguished Professor of Environmental Law and Director, Center for Law, Environment, Adaptation and Resources, University of North Carolina Chapel Hill School of Law. He also has an appointment as a Distinguished Scholar in Carbon Markets and Carbon Trading at the Global Energy Management Institute at the University of Houston's Bauer College of Business, and is a member scholar of the Center for Progressive Reform. Professor Flatt’s presentation will examine the relationship between tort law and environmental law.
Anthony Sebok, Professor of Law, Benjamin N. Cardozo School of Law, is an expert on mass torts, litigation finance, comparative tort law, and legal philosophy. Professor Sebok has authored numerous articles about litigation finance and mass restitution litigation involving tobacco, handguns, and slavery reparations. His casebook, Tort Law: Responsibilitiesand Redress, which he coauthored with John Goldberg and Benjamin Zipursky, is used at leading law schools throughout the country.ProfessorSebok’s presentation will examine the relationship between tort law and insurance law.
Stacey Tovino, Lincy Professor of Law and Associate Dean for Faculty Development and Research, William S. Boyd School of Law, University of Nevada, Las Vegas is a leading expert in health law, bioethics, and the medical humanities. Educated as both a lawyer and a humanist, Professor Tovino publishes her interdisciplinary work in textbooks, casebooks, edited readers, law reviews, medical and science journals, and ethics and humanities journals. Professor Tovino’spresentation will examine the relationship between tort law and health law.
William L. Prosser Award Winner: Professor Jane Stapleton
The William L. Prosser Award will be presented at our Section meeting on Sunday, January 6, 2013, at 2:00 pm -3:45 pm. The Prosser Award was created and presented to its first recipient, Leon Green, in 1974. Subsequent winners include Fleming James Jr., Wex Malone, W. Page Keeton, John Wade, and Willard Pedrick. More recent honorees include Dan B. Dobbs, Guido Calabresi, Oscar Gray, Robert Rabin, and the Hon. Richard A. Posner. The award honors those who have made an outstanding contribution to the world of tort law scholarship.
Nominators of this year’s honoree note that she is an influential scholar on three continents. In her native Australia, she serves as aResearch Professor of Law at the Australian National University College of Law in Canberra. Professor Stapleton is also a barrister of the High Court and the Supreme Court of New South Wales, a Fellow of the Academy of Social Sciences, and a Fellow of the Australian Academy of Law.
In the United States, Professor Stapleton is the Ernest E. Smith Professor in Law at the School of Law University of Texas at Austin. She is also an Advisor to the current Third Restatement of Torts: Liability for Economic Harm and was the first foreign national to be elected as a Council Member of The American Law Institute.
In England, Professor Stapleton is a Statutory Visiting Professor of Law at Oxford University and an Emeritus Fellow of Balliol College. She is a past holder of the prestigious Arthur Goodhart Visiting Professor of Legal Science Chair at Cambridge University and an Honorary Bencher at Gray’s Inn.
Professor Stapleton has accepted invitations to teach and lecture as a Visiting Professor at prestigious universities in the United Kingdom, Germany, Spain, New Zealand, Canada, Italy, Brazil and the United States. In addition, she has served as a consultant in major commercial, pharmaceutical, medical and environmental litigation in the United Kingdom, Australia, New Zealand and the United States.
Her nominators focused on the rigor of her scholarship and the depth and breadth of her professional accomplishments. Her work focuses on the “law of obligations, liability and compensation systems, and ranges from comparative product liability to the philosophical foundations of common-law concepts such as causation, duty, and good faith.”[1]
The members of this year’s Executive Committee would like to extend our congratulations to our respected colleague whose scholarship and teaching has been so influential. As noted by one of her nominators, Professor Stapleton’s scholarship reflects her “penetrating insight into the areas of torts and product liability.”
A bibliography of Professor Stapleton’s scholarship and contributions to the world of tort law may be found on her faculty biography page.
2013 Prosser Award Nominations
The 2014 AALS Meeting will be held January 3 to January 6, 2014, in New York City. At next year’s Annual Meeting, the Torts and CompensationSystems Section will once again present the William L. Prosser Award to a law professor who has made outstanding contributions toscholarship, teaching, and service in the area of tort law. Any law professor is eligible to nominate another law professor for the award.
Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section based on the recommendation of an appointed special selection committee. Nominations, accompanied by a brief supporting statement, should be submitted to Anthony Sebok, Secretary of the Executive Committee. Nominations must be accompanied by a brief letter of support no later than 5 p.m. Eastern Time (U.S.) on July 2, 2013.
Please email your nomination to Anthony Sebok at . You may also send thenomination by mail to:
Anthony Sebok
Professor of Law
Benjamin N. Cardozo School of Law
55 Fifth Avenue, Suite 403
New York, NY 10003
USA
Professors who previously nominated a candidate who has not been chosen for the award are welcome to renew their nominations by sending a copy of the prior nominating letter to Professor Sebok.
Election of Section Officers
The Section will elect officers for the coming year during the business meeting following the panel presentation and discussion. You are invited to participate in the election. The current members of the Executive Committee will propose a slate of candidates for election at the business meeting. The proposed slate is:
Chair: Jennifer Wiggins
Executive Chair: Andrew Klein
Secretary: Tony Sebok
Treasurer: Leslie Kendrick
Member:Christopher Robinette
Recent Torts Law Symposia
Association of American Law Schools: Workshop on Torts, Environment and Disaster
See conference program for information and presentation materials.
Federal Courts Law Review of Charleston School of Law Annual Symposium: Mass Torts in the Federal Courts
Kenneth P. Feinberg, Administrator, Gulf Coast Claims Facility, gave the keynote address and the Honorable Marina Corodemus (ret.) presented “A View from the Bench.”
Panel I: Preemption
Moderator: William M. Janssen, Charleston School of Law
James M. Beck, Dechert, LLP
Deepak Gupta, Georgetown University
Catherine M. Sharkey, New York University School of Law
Panel II: Aggregation and Mass Torts
Moderator: Sheila B. Scheuerman, Charleston School of Law
Sheila L. Birnbaum, Skadden, Arps, Slate, Meagher & Flom, LLC & Affiliates
Timothy E. Eble, Attorney
Alexandra Lahav, University of Connecticut School of Law
Linda S. Mullenix, Unversity of Texas School of Law
Panel III: Ethical Issues Surrounding Fees and Settlements in the Mass Torts
Moderator: Nathan M. Crystal, Charleston School of Law
John H. Beisner, Skadden, Arps, Slate, Meagher & Flom, LLC & Affiliates
Elizabeth Middleton Burke, Richardson, Patrick, Westbrook & Brickman, LLC
Morris Ratner, University of California Hastings College of Law
Lynn A. Baker, University of Texas School of Law
DePaul College of Law 16th Annual Clifford Symposium on Tort Law and Social Policy, 60 DePaul L. Rev. 273 (2011).
Bernstein, Anita, The 2x2 Matrix of Tort Reform’s Distributions, 60 DePaul L. Rev. 273 (2011).
Gilles, Stephen G., The Supreme Court and Legal Uncertainty, 60 DePaul L. Rev. 311 (2011).
Daniels, Stephen & Joanne Martin, Plaintiffs’ Lawyers: Dealing with the Possible but Not Certain, 60 DePaul L. Rev. 337 (2011).
Hans, Valerie P., The Predictability of Juries, 60 DePaul L. Rev. 375 (2011).
Mertz, Elizabeth, Undervaluing Indeterminacy: Translating Social Science into Law, 60 DePaul L. Rev. 397 (2011).
Rachlinski, Jeffrey J., Processing Pleadings and the Psychology of Prejudgment, 60 DePaul L. Rev. 413 (2011).
Rabin, Robert L., The Pervasive Role of Uncertainty in Tort Law: Rights and Remedies, 60 DePaul L. Rev. 431 (2011).
Sebok, Anthony J., Betting on Tort Suits After the Event: From Champerty to Insurance, 60 DePaul L. Rev. 453 (2011).
Zipursky, Benjamin C., Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law, 60 DePaul L. Rev. 473 (2011).
Baker, Tom, The Shifting Terrain of Risk and Uncertainty on the Liability Insurance Field, 60 DePaul L. Rev. 521 (2011).
Geistfeld, Mark A., Legal Ambiguity, Liability Insurance, and Tort Reform, 60 DePaul L. Rev. 539 (2011).
Scales, Adam F., Following Form: Corporate Succession and Liability Insurance, 60 DePaul L. Rev. 573 (2011).
Erichson, Howard M., Uncertainty and the Advantage of Collective Settlement, 60 DePaul L. Rev. 627 (2011).
Nagareda, Richard A., 1938 All Over Again?Pretrial as Trial in Complex Litigation, 60 DePaul L. Rev. 647 (2011).
DePaul College of Law 17th Annual Clifford Symposium on Tort Law and Social Policy: Festschrift for Robert Rabin, 61 DePaul L. Rev. 239 (2012).
Rabin, Robert J., Reflections on Tort and the Administrative State, 61 DePaul L. Rev. 239 (2012).
Abraham, Kenneth S., Strict Liability in Negligence, 61 DePaul L. Rev. 271 (2012).
Engstrom, Nora Freeman, An Alternative Explanation for No-Fault’s “Demise,” 61 DePaul L. Rev. 303 (2012).
Geistfeld, Mark A., The Coherence of Compensation-Deterrence Theory in Tort Law, 61 DePaul L. Rev.383 (2012).
Gilles, Myriam, Public-Private Approaches to Mass Tort Victim Compensation: Some Thoughts on the Gulf Coast Claims Facility, 61 DePaul L. Rev. 419 (2012).
Goldberg, John C.P. & Benjamin C.Zipursky, Convergence and Contrast in Tort Scholarship: An Essay in Honor of Robert Rabin, 61 DePaul L. Rev. 467 (2012).
Green, Michael D., The Federal Employers’ Liability Act: Sense and Nonsense About Causation, 61 DePaul L. Rev. 503 (2012).
Keating, Gregory C., Recovering Rylands: An Essay for Robert Rabin, 61 DePaul L. Rev. 543 (2012).
Schuck, Peter H., Professor Rabin and the Administrative State, 61 DePaul L. Rev. 595 (2012).
Sebok, Anthony J., The Failed Promise of a General Theory of Pure Economic Loss: An Accident of History? 61 DePaul L. Rev. 615 (2012).
Sharkey, Catherine M., Against Categorical Preemption: Vaccines and the Compensation Piece of the Preemption Puzzle, 61 DePaul L. Rev. 643 (2012).
Sugarman, Stephen D., Why No Duty?, 61 DePaul L. Rev. 669 (2012).
European Center of Tort and Insurance Law, 11thAnnual Conference on European Tort Law
Oliphant, Ken, Cultures of Tort Law in Europe, 3 Eur. J. Tort L. 147 (2012).
Borghetti, Jean-Sébastien, The Culture of Tort Law in France, 3 Eur. J. Tort L. 158 (2012).
Fedtke, Jörg, The Culture of German Tort Law, 3 Eur. J. Tort L. 183 (2012).
Andersson, Håkan, The Tort Law Culture(s) of Scandinavia, 3 Eur. J. Tort L. 211 (2012).
Lewis, Richard & Annette Morris, Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation, 3 Eur. J. Tort L. 230 (2012).
See conference description for additional information and presentations.
Florida State University College of Law Symposium on Civil Recourse Theory, 39 Fla.St. U. L. Rev. 1 (2011).
Bridgeman, Curtis, Civil Recourse or Civil Powers, 39 Fla. St. U. L. Rev. 1 (2011).
Darwall, Stephen & Julian Darwall, Civil Recourse as Mutual Accountability, 39 Fla. St. U. L. Rev. 17 (2011).
Gardner, John, Torts and Other Wrongs, 39 Fla. St. U. L. Rev.43 (2011).
Gold, Andrew S., The Taxonomy of Civil Recourse, 39 Fla. St. U. L. Rev.65 (2011).
Goldberg, John C.P., Tort Law at the Founding, 39 Fla. St. U. L. Rev.85 (2011).
Hershovitz, Scott, Corrective Justice for Civil Recourse Theorists, 39 Fla. St. U. L. Rev.107 (2011).
Mendlow, Gabriel Seltzer, Is Tort Law a Form of Institutionalized Revenge?,39 Fla. St. U. L. Rev. 129 (2011).
Oman, Nathan B., Why There is No Duty to Pay Damages: Powers, Duties, and Private Law, 39 Fla. St. U. L. Rev.137 (2011).
Ripstein, Arthur, Civil Recourse and Separation of Wrongs and Remedies, 39 Fla. St. U. L. Rev.163 (2011).
Sebok, Anthony J., What is Wrong about Wrongdoing? 39 Fla.St. U. L. Rev.209 (2011).
Sherwin, Emily, Interpreting Tort Law, 39 Fla. St. U. L. Rev.227 (2011).
Solomon, Jason M., Civil Recourse as Social Equality, 39 Fla. St. U. L. Rev.243 (2011).
Solomon, Jason M., The Political Puzzle of the Civil Law, 61Emory L.J. 1331 (2012).
Weinrib, Ernest J., Civil Recourse and Corrective Justice, 39 Fla. St. U. L. Rev.273 (2011).
Zipursky, Benjamin C., Substantive Standing, Civil Recourse, and Corrective Justice, 39 Fla. St. U. L. Rev.299 (2011).
Goldberg, John C.P. & Benjamin C. Zipursky, Civil Recourse Revisited, 39 Fla. St. U. L. Rev.341 (2011).
Fordham Law Review Symposium: Official and Municipal Liability for Constitutional and
International Torts Today: Does the Roberts Court Have an Agenda?,80 Fordham L. Rev. 441 (2011).
Doernberg, Donald L., Taking Supremacy Seriously: The Contrariety of Official Immunities, 80 Fordham L. Rev. 443 (2011).
Fallon, Jr., Richard H., Asking the Right Questions About Officer Immunity, 80 Fordham L. Rev. 479 (2011).
Johns, Margaret Z., Unsupportable and Unjustified: A Critique of Absolute Prosecutorial Immunity, 80 Fordham L. Rev. 509 (2011).
Rudin, Joel B., The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove the Assumption Wrong, 80 Fordham L. Rev. 537 (2011).
Castro, William R., Notes on Official Immunity in ATS Litigation, 80 Fordham L. Rev. 573 (2011).
Keitner, Chimène I., Foreign Official Immunity and the “Baseline” Problem,80 Fordham L. Rev. 605 (2011).
Sampsell-Jones, Ted & Jenna Yauch, Measuring Pearson in the Circuits,80 Fordham L. Rev. 623 (2011).
Kirkpatrick, Michael T. & Joshua Matz, Avoiding Permanent Limbo: Qualified Immunity and the Elaboration of Constitutional Rights from Saucier to Camreta (and Beyond),80 Fordham L. Rev. 643 (2011).
Achtenberg, David Jacks, Frankfurter’s Champion: Justice Powell, Monell, and the Meaning of “Color of Law”,80 Fordham L. Rev. 681 (2011).
Harvard Law Review Symposium: The New Private Law,125 Harv. L. Rev. 1640 (2012).
Goldberg,John C.P., Introduction: Pragmatism and Private Law, 125 Harv. L. Rev. 1640 (2012).
Balganesh ,Shyamkrishna, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying, 125 Harv. L. Rev. 1664 (2012).
Smith, Henry E., Property as the Law of Things,125Harv. L. Rev. 1691 (2012).
Smith, Stephen A., Duties, Liabilities, and Damages, 125 Harv. L. Rev. 1727 (2012).
Zipursky, Benjamin C., Palsgraf, Punitive Damages, and Preemption, 125 Harv. L. Rev. 1757 (2012).
Stanford Law Review Spring 2012 Symposium: The Privacy Paradox: Privacy and Its Conflicting Values,64 Stan. L. Rev. online 57 (2012).
Swire, Peter, A Reasonableness Approach to Searches After the Jones GPS Tracking Case, 64 Stan. L. Rev. online 57 (2012).
Tene, Omer Jules Polonetsky, Privacy in the Age of Big Data, 64 Stan. L. Rev. online 63(2012).
Kreiss, Daniel, Yes We Can (Profile You), 64 Stan. L. Rev. online 70(2012).
McGraw, Deven, Paving the Regulatory Road to the “Learning Health Care System,” 64 Stan. L. Rev. online 75(2012).
Frankel, Simon J., Laura Brookhover Stephen Satterfield, Famous for Fifteen People, 64 Stan. L. Rev. online 82(2012).
Rosen, Jeffrey, The Right to be Forgotten, 64 Stan. L. Rev. online 88(2012).
Kozinski, Alex, The Dead Past, 64 Stan. L. Rev. online 117(2012).
Western University (Canada) Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy
Plenary Speakers
The Right Honourable Beverley McLachlin, PC(Chief Justice of Canada), Developing the Private Law in the Context of the 'Vanishing Trial'
The Honourable Mr. Justice Thomas Cromwell(Supreme Court of Canada)
Melvin Eisenberg, The Foundations of Contract Law
John Goldberg, Negligent Infliction of Emotional Distress and Tort Orthodoxy
Andrew Robertson, On the Function of the Law of Negligence
Ernest Weinrib, The Rights of Corrective Justice
Richard Wright, Misunderstanding Justice and Rights
Ben Zipursky, Negligent Infliction of Emotional Distress and Tort Orthodoxy
See conference program for additional speakers.
The conference papers will be published in Pitel, S.G.A., J.W. Neyers & E. Chamberlain, eds., Challenging Orthodoxy in Tort Law (Hart 2013).
Recent TortsLaw Scholarship
Acevedo, Arthur, Responsible Profitability? Not On My Balance Sheet!,61 Cath. U. L. Rev 651 (2012).
Allen, Craig H., Admiralty’sIn Extremis Doctrine: What Can Be Learned from the Restatement (Third) of Torts Approach?,43 J. Mar. L. & Com. 155 (2012).
Anastopoulo, Constance A., Bad Faith: Building a House of Straw, Sticks, or Bricks, 42 U. Mem. L. Rev. 687 (2012).
Anderson, James, Comment on Doug Kysar’sWhat Climate Change Can Do About Tort Law, 42 Envtl. L. Rep. News & Analysis 10745 (2012).