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Abstract: The regulatory compliance defense stands at the intersection between tort law and administrative regulation of health and safety concerns. In contrast to judicial treatment of violations of regulatory standards, compliance with regulatory requirements traditionally has not been regarded as the occasion for deference in tort cases (in the absence of legislative preemption). As entrepreneurial systems of production and transport have grown in complexity and sophistication, critics of tort law have challenged the continuing reluctance of courts to adopt a more deferential stance when tort defendants have complied with regulatory requirements - particularly when the claims for recognition of administrative expertise are linked with the perceived benefits of nationally uniform standards. This paper reassesses the case for a regulatory compliance defense by considering a variety of perspectives on comparative institutional competence of court and agency, including attending to non-efficiency goals such as compensation, acknowledging dynamic social utility goals such as monitoring business ethics, identifying the often unanticipated circumstances under which risks come to fruition, along with respecting claims for state autonomy. The paper also provides a particularized discussion of FDA regulation of prescription drugs, a regulatory field often designated by tort critics as the strongest candidate for recognition of a regulatory compliance defense. Overall, the paper argues that the case for recognizing a defense, as distinguished from highly selective deference to regulatory standards, remains open to serious reservations. Note: An earlier version of this article was announced as (Stanford Law School, Public Law and Legal Theory Working Paper No. 5, November 1999). The working paper can be downloaded from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=201948.
Abstract: The regulatory compliance defense stands at the intersection between tort law and administrative regulation of health and safety concerns. In contrast to judicial treatment of violations of regulatory standards, compliance with regulatory requirements traditionally has not been regarded as the occasion for deference in tort cases (in the absence of legislative preemption). As entrepreneurial systems of production and transport have grown in complexity and sophistication, critics of tort law have challenged the continuing reluctance of courts to adopt a more deferential stance when tort defendants have complied with regulatory requirements - particularly when the claims for recognition of administrative expertise are linked with the perceived benefits of nationally uniform standards. This paper reassesses the case for a regulatory compliance defense by considering a variety of perspectives on comparative institutional competence of court and agency, including attending to non-efficiency goals such as compensation, acknowledging dynamic social utility goals such as monitoring business ethics, identifying the often unanticipated circumstances under which risks come to fruition, along with respecting claims for state autonomy. The paper also provides a particularized discussion of FDA regulation of prescription drugs, a regulatory field often designated by tort critics as the strongest candidate for recognition of a regulatory compliance defense. Overall, the paper argues that the case for recognizing a defense, as distinguished from highly selective deference to regulatory standards, remains open to serious reservations.
Abstract: This draft chapter from a forthcoming book on tobacco regulation analyzes the third wave of tobacco tort litigation, beginning in 1993. By now, the total lack of success in the courthouse over the course of the preceding forty years, involving two waves of litigation, is a familiar story. The U.S. Supreme Court's decision in the 1992 case of Cipollone v. Liggett Group, Inc., construing the 1965 cigarette labeling act to preempt state tort claims based on negligent failure to warn, along with the tobacco industry's success in arguing that smokers assumed the risks of tobacco use, not only brought closure to the second wave of tobacco tort litigation but appeared to foretell that another wave of tort litigation might be a long time in coming. As it happened, however, less than two years later, the industry was under assault from two formidable directions: private class action tort litigation and state health care reimbursement suits. Within the relatively short span of another five years, the industry had entered into multibillion-dollar settlements in the state litigation, remained precariously positioned in the class action litigation, and faced an uncertain future in the newly rejuvenated individual tort suits. A clearly discernible third wave of tobacco-related claims showed no signs of abating, and raised the specter of unpredictable, potentially catastrophic liability far more vividly than had ever before been the case. This study discusses the developments that so dramatically challenged the industry's long-time success on the litigation front. I indicate that the industry had to contend with two convergent and unexpected circumstances: The revelation of highly damaging internal documents tracing a pattern of industry concealment and misrepresentation of tobacco-related health information, and the adoption by adversaries of a new litigation strategy, based on aggregating claims rather than proceeding on a case-by-case basis. Nonetheless, the resulting turnabout in industry fortunes on the litigation front is far more ambiguous than appears at first blush. This ambiguity - a mixed "scorecard" of successes and defeats - offers insights that I also discuss, into the institutional strengths and weaknesses of the tort system generally as a medium for achieving broader public health goals. That discussion, in turn, leads me to some general observations about the future course of tobacco tort litigation.
Abstract: What are the implications, if any, of the September 11 Victim Compensation Fund of 2001 for the future? Although the tort option was not foreclosed for the victims of Sept. 11, Congress made a serious effort to provide incentives that would channel claims into the no-fault compensation scheme established by the Air Transportation Safety and System Stabilization Act. At this distance from the event, it seems appropriate to reflect on whether the Fund, established in the turmoil following the most riveting single-event, mass disaster in the nation's history, should be regarded as a singular response, or as a window for thinking about redress of future victims of terrorist activity - or even, perhaps, victims of criminal violence more generally. I begin by offering a set of building blocks: three scenarios of terrorist activity considered from the vantage point of recovery in tort. Next, I shift ground to no-fault as an option for addressing these various types of claims, grounding my discussion in a brief recapitulation of the Sept. 11 scheme, as well as the model that emerges from the regulatory gloss provided by the Special Master designated to implement the scheme. In addition, I offer some context by discussing briefly a limited number of alternative no-fault strategies that have been employed in offering redress to the victims of terrorist acts, and more broadly, to victims of criminal violence. Finally, I address a more fundamental question: Can a satisfying principle be articulated for treating those suffering injuries from terrorist acts as a distinct category of beneficiaries? In the end, I conclude that fairness considerations suggest not so much the normative superiority of tort for addressing every manner of personal injury, as the problematic nature of affording special status to victims of terrorism as no-fault claimants, whether in mass calamities or in isolated incidents.
Abstract: This essay offers some thoughts on prospective developments in injury reparation through the prism of what are, in my view, the principal landmarks of twentieth century American tort and compensation law. I discuss, in roughly chronological order, the four developments that seem to me most critical in restructuring the very foundations of tort law in the twentieth century: First, Judge Benjamin Cardozo's opinion in the landmark case of MacPherson v. Buick Motor Co.; second, the Progressive era adoption of workmen's compensation legislation; third, the concurring opinion of Justice Roger Traynor in Escola v. Coca Cola Bottling Co.; and fourth, the primarily legislative movement from contributory to comparative fault. I then discuss a fifth landmark, United States v. Carroll Towing Co., which attained its landmark status by serving as a catalyst for intellectual ferment, rather than through its direct impact on the tort system. In this last instance, I depart from chronological presentation because the noteworthiness of Carroll Towing came not in its immediate aftermath, but some twenty-five years later when Judge Learned Hand's opinion came to be recognized as a cornerstone of the law and economics movement. My focal point will be the themes that emerge from each of these developments, for it is the rich thematic influence in every instance that forced reexamination of the basic goals, as well as the appropriate domain, of tort law. Similarly, that rich thematic material creates continuing resonance for my corresponding discussion of future developments in the torts area.
Abstract: This paper addresses the complex institutional structure in the United States for dealing with victim compensation in cases of catastrophic loss. It will appear as a chapter in a multinational study that compares the institutional frameworks adopted by Western European nations and the United States. Part I of the paper focuses on catastrophic loss triggered by potentially responsible human agencies, and as a consequence, discussion of tort law is central. But what of situations where no human agency can be charged with responsibility for catastrophic harm? In these cases there is no recourse to tort in most instances, and victims of catastrophic loss ordinarily must rely exclusively on private insurance coverage, or, when available, on public insurance systems. The latter can be parsed into two separate categories: social welfare schemes (discussed in section II of this paper), such as government disability and unemployment insurance legislation, which are available to all claimants meeting general eligibility requirements - without reference to the source of the harm that has occurred. And, legislative no-fault or insurance schemes that have been established with designated types of catastrophic loss in mind. This second category of social welfare legislation is discussed, along with a description of private insurance coverage, in section IV - after examining the government agency whose work is devoted exclusively to disaster relief (in section III, on the Federal Emergency Management Agency). Section V of the paper serves as a reprise on the somewhat patchwork design of the U.S. system by isolating for special consideration three case studies of particularly salient disaster events that illustrate the range of approaches discussed earlier: First, the terrorist acts of September 11, and, in particular, the legislative no-fault compensation scheme that was enacted to compensate the personal injury victims; second, Hurricane Andrew, which initiated a mixed private/public insurance scheme in Florida and recast FEMA's approach to disaster relief; and third, commercial airline crashes, as a category, which invoke tort as the principal source of disaster relief compensation. A concluding section VI of the paper returns to a more general overview of the system, offering a brief final commentary on fairness and efficacy considerations.
Abstract: Beginning in the mid-twentieth century, one can identify a continuing chorus of skeptics on the prospect of awarding damages for intangible loss in cases of accidental harm. The skeptics range from a law and economics scholarship that puzzles over the question of why prospective injury victims should be, in effect, forced to purchase a form of insurance (pain and suffering) that has not been sufficiently valued to be offered in the market, to a leftist critique that objects to the commodification of misfortune. Indeed, it recently has been argued that from any widely-accepted perspective on the goals of tort law - compensation, deterrence, corrective justice and fairness, administrative cost concerns, and the like - pain and suffering recovery ought to be eliminated and recovery should be granted exclusively for economic loss suffered as a consequence of personal injury. These persistent qualms seem to establish good grounds for locating pain and suffering damages more precisely on the spectrum of tort claims for redress of intangible loss, and considering whether the reservations about pain and suffering recovery are context-bound to scenarios of accidental harm or have wider applicability. In thinking about pain and suffering from this broader perspective on compensation for intangible loss, I will suggest commonalities that firm up the base for recognizing the legitimacy of pain and suffering recovery. I begin with some thoughts on context internal to the pain and suffering claim in an accidental harm case. Then, I turn to a broader historical overview of intangible loss that leads, in turn, to a look at the present landscape from a wide-angle perspective. Finally, in view of the many byways that intangible loss has taken, I reassess and question the coherence of a "make-whole" foundation for pain and suffering.
Abstract: This paper examines the historical scholarship of Gary Schwartz, spanning the industrial revolution to the late twentieth century. Schwartz sought to address a cluster of related questions. In particular, he inquired, how prominent are the strands of strict liability and negligence in the development of liability for accidental harm? And what does socioeconomic context provide in the way of explanation for the contours of accident law? And finally, what does the intellectual and political climate of the times contribute to our understanding of the dynamics of tort law? In this essay, I will expand on these themes, before offering my own critique of Schwartz's views. Schwartz set out to show that the fault principle had far deeper historical roots, both before and during the Industrial Revolution, than prominent tort scholars recognized - and correspondingly, that late twentieth century tort law developments in many ways reinvigorated the judicial impulse towards a pervasive negligence system for unintentional harm. I will argue that Schwartz read the historical record correctly, for the most part. But that throughout the nineteenth century, and to a somewhat lesser extent, in the twentieth century as well, the fault principle appears less robust than his reading would suggest when assessed in the context of a wide array of no-duty and limited-duty rules that he never felt entirely comfortable embracing.
Abstract: In a recent paper, George Fletcher points out a surface anomaly in the tort system's adherence to a fault standard (under the banner of negligence), and its correlative refusal to excuse, under ordinary circumstances, the individual who in good faith attempts to exercise reasonable care but simply falls short of the mark. If an actor injures another through inadvertence, Fletcher observes, the situation appears on its face to be one in which tort, in the guise of negligence and contrary to its grounding in fault, is assigning liability in the absence of personal culpability. The objective standard universally recognized in obeisance to "the reasonable person" seems to weave a strand of strict liability into the tapestry of negligence. The central theme in Fletcher's paper is to show how negligence, in the sense of "the fault of not knowing," remains centered on a foundation of personal blameworthiness, despite its surface appearance of adhering to an external standard of conduct that the risk-imposing individual may be incapable of satisfying. In this comment, I begin by indicating where I find common ground with Fletcher. In fact, I will suggest that his "fault of not knowing" rests on a well-established notion of the role of custom in tort law. But I then indicate through discussion of leading tort scholarship and cases that his broader thesis - that once acknowledging the fault of not knowing, negligence can be squared with personal blameworthiness - cannot withstand sustained analysis. In a final section, I open the inquiry still further by briefly commenting on the constraining effect of addressing the problem of remedies for accidental harm exclusively in terms of fault and strict liability.
Abstract: In this Article, I briefly comment on three aspects of the "economic loss rule" - the longstanding no-duty barrier to recovery of pure economic loss - in an effort to dig beneath the surface and explore its foundations. First, I examine the array of circumstances in which the no-duty rule comes into play, which turn out to be varied; second, I explore the set of justifications offered for the rule, which turn out to differ in persuasiveness; and third, I suggest the extent to which the rule shares some common roots with related areas of accident law (such as personal injury). More broadly, I emphasize that the constraints imposed by the economic loss rule do not reflect any single normative principle. Correspondingly, the cases do not comprise a single generic category guided by a unified set of underlying policy considerations, any more than limitations on recovery for emotional harm - ranging from direct emotional distress, to bystander emotional distress and loss of consortium - can be explained by reference to a single rationale. In both areas, attempts to generate a single rationale for what the courts are doing run the risk of oversimplifying the policy concerns at stake. With these basic premises in mind, I offer an overview of the field based on three scenarios of negligently inflicted economic loss. I will begin by addressing the scenario in which tort is invoked as an alternative remedy in the context of disappointed contractual expectations. Next, I consider the scenario in which a defendant creates a dangerous condition or causes physical harm, resulting in economic loss to a stranger. Finally, I turn to a scenario in which there is either a negligent misrepresentation, or more broadly negligent performance of an obligation, that results in third-party economic loss. This latter category is a hybrid of sorts, falling between the realm of harm arising out of contractual expectations and that of economic loss entirely distinct from any contractual expectations.
Abstract: This paper is a contribution to a symposium devoted to reassessing Guido Calabresi's pathbreaking volume, The Costs of Accidents, 35 years after its publication. In Calabresi's opening chapter, he begins by noting a renaissance of interest in plans, by which he meant legislative efforts and proposals to supplant conventional tort doctrine - the negligence system - with a nonfault-based compensation scheme of one sort or another. Concurrently, Calabresi noted a then-emerging parallel challenge to the fault system in the judicial domain, strict liability for product injuries. Both in the legislative sphere and the courts, he lamented the absence of an ideological framework that would make sense of the various developments. Viewing accident law from the vantage point of 1970, Calabresi offered a brief account of five categories of plans that seemed both topical and representative of the under-theorized character of accident law reform proposals. The three principal strategies that he surveyed - social insurance/welfare legislation, first-party auto no-fault, and strict liability for defective products - serve as my port of entry for a broader view of developments in nonfault approaches since the publication of The Costs of Accidents. I begin by surveying how the renaissance has fared in the ensuing years, indicating the pathways taken by the resurgence of interest in nonfault approaches since 1970. In particular, I discuss two systems of reparation that stand in contrast to fault-based liability: no-fault compensation schemes and strict liability (in particular, for product injuries) - systems that are consonant with Calabresi's range of concerns, but at the same time reflect a view of no-fault substantially broadened beyond the motor vehicle area. From a scholarly perspective, one can also ask, as Calabresi did a generation ago, whether latter-day efforts to reconstitute accident law - whether in the legislative arena or in the courts - reveal a greater fidelity to coherently articulated goals than was evident in earlier times. In exploring this question, in the following section of the paper, I discuss some related issues, as well: Was accident law, in fact, as under-theorized as The Costs of Accidents suggests? And does the notion of theorizing about legislative compensation plans resonate in similar fashion to theorizing about judge-made tort law? The principal thrust of this section is to determine whether there are identifiable themes underlying nonfault alternatives to traditional tort that illuminate the staying power of the fault system. In a brief concluding section, I offer some summary thoughts on the legacy of Costs, drawing on my survey of the observable patterns of legislative and judicial activity over the past thirty-five years.
Abstract: Aside from natural disasters, when tragedy strikes - taking its toll in fatalities and serious injuries - we ordinarily look to the tort system for redress. Tort is not the exclusive form of redress, of course, in this era of private insurance and government disability programs. But still, it remains our most highly visible mechanism for assigning responsibility and providing compensation. So, we ordinarily look to tort. But there was nothing "ordinary" about September 11, 2001. And that includes how our legal system responded to the plight of injury victims of that horrific day. Within less than two weeks of September 11, Congress took action, funding a special compensation scheme for the victims and survivors of the terrorist acts, entitled the September 11th Victim Compensation Fund of 2001, which provides "no-fault" benefits; that is, compensation for physical harm without the necessity of establishing wrongful conduct as a basis for recovery. In this paper, I begin by describing the approach to compensation taken in the Victim Compensation Fund. I then discuss the implementing regulations promulgated by the Special Master appointed under the Fund. Next, I offer a preliminary assessment of the significance of the Fund for the survivors of those who perished, as well as the seriously injured. And finally, I speculate more broadly about the significance of the Fund for how we address the continuing problem of compensating victims of unexpected harm.
Abstract: The primary purpose of this paper is to assess how the September 11 Victim Compensation Fund, enacted by Congress within two weeks of the terrorist acts, addresses (and fails to address) the particular subset of prospective injuries that are associated with toxic exposure and possible harm arising in the future. Whatever one makes of the basic design of the scheme for immediate victims and their survivors, which is in fact quite controversial, the consequences for "futures victims" are a distinct matter about which Congress appears to have been either inattentive or unconcerned. After providing a general overview of the Fund and the correlative tort action established by the umbrella legislation, the Air Transportation System and Stabilization Act, the paper evaluates the compensation scheme along the lines of four key determinants for assessing no-fault compensation plans: 1) designating a compensable event; 2) setting limits on compensation; 3) deciding whether to retain the tort system; and 4) financing the system. In the course of discussing those determinants, the paper focuses, in particular, on discrete categories of prospective victims, based on the varying circumstances of exposure. Most commonly, claims arising under compensation schemes raise now-familiar issues of causation under conditions of uncertainty. By contrast, under the Fund, basic issues of system design, entirely apart from individual causation inquiries, require close attention. This circumstance, in turn, leads to a final section of the paper commenting briefly on some salient political considerations that offer still another perspective on the action Congress took in the wake of September 11. Rather than ending in the domain of realpolitik, the paper suggests that Congress could (and should) have provided for futures victims as well as those suffering immediate physical harm, assuming that a compensation plan was warranted in the first instance.
Abstract: The public health impact of smoking remains as prominent as ever. At present, over 400,000 premature deaths - far and away the highest tally for any product or substance on the market - are attributable to smoking. And, per capita use and trend rates suggest no reason for relaxed regulatory scrutiny. In this article, I offer a view of past efficacy and future promise of tobacco control strategies. After a brief treatment of the demographics of smoking, indicating the distance that has been covered in reducing tobacco use, I discuss the main factors contributing to that partial success story; in particular, informational initiatives, clean air regulations, and taxation. Then, I address the strategies that, to my mind, have been somewhat less successful: litigation and advertising controls. Finally, I comment on the array of public health initiatives that might sensibly be considered at this point in time, with particular emphasis on reducing the prevalence of youth smoking.
Abstract: In light of the daunting prospect of terrorists striking again on the home front, what special measures, if any, should be taken to assure compensation to those killed or injured by such violence? The starting point for any discussion of the compensation of these victims (and their survivors), we believe, is an appreciation of the baseline arrangements our nation has in place for those killed or seriously injured regardless of cause. One policy option would be to leave victims of terrorism to whatever they might obtain from these baseline tort and social welfare compensation systems in default of special treatment. On what basis, if any, should terrorist victims be singled out for different treatment? Is there something about being victims of terrorism that should entitle them and their survivors to be better treated than they would be by Social Security, victims of violent crimes schemes, and the like? Is there something about tort law's application, or non-application to the terrorist setting, that makes a special compensation scheme appropriate for victims of terrorism?
In addressing these questions, there are two basic alternatives to the default solution. One would involve the creation, ex ante, of an ongoing victim compensation fund in anticipation of the occurrence of future terrorist acts. The other would involve the ad hoc creation of a fund established after the occurrence of a terrorist event to provide retrospective compensation to victims. Israel and Northern Ireland are examples of countries with longstanding experience with terrorism, which have adopted legislative schemes of the first sort. In the U.S., the 9/11 Victim Compensation Fund is an example of the ad hoc retrospective approach.
We begin by commenting on the 9/11 Fund itself, setting it in the context of other American compensation schemes that arose out of concerns about the appropriateness of having injury victims seek compensation through tort law. Next, we consider, in turn, the ex ante and ex post options for addressing the claims of terrorist victims. Finally, we return to the default systems mentioned above, raising the question of whether they offer in all, or most, circumstances the most sensible approach to dealing with future incidents of personal injury from terrorist acts.
Abstract: Beginning in 1992, with the landmark decision in Cipollone v. Liggett Group, Inc., the U.S. Supreme Court has decided a burgeoning number of preemption cases, squarely challenging the continuing vitality of tort in many domains of accident law. Cipollone addressed the preemption question in an atypical context. The case did not involve competing claims to territorial authority between a regulatory regime and state tort law. Rather, Cipollone involved a challenge to the continuing viability of tort in the face of statutory directives mandating explicit industry conduct; more specifically, the explicit warnings required in the 1969 version of the cigarette labeling act.
In this article, I begin by revisiting Cipollone to reassess what it has to offer as a foundation for setting the boundaries of regulatory containment of the tort system. Next, I discuss three leading cases from the series of efforts by the Supreme Court to grapple with express preemption clauses in a variety of regulatory schemes. Against this backdrop, I then explore the circumstances under which it might be justified to imply preemption despite the absence of an express provision, with particular reference to the recent Supreme Court decision in Wyeth v. Levine, addressing preemption in the context of FDA regulation of prescription drugs. A concluding note ties the strands together.
Abstract: This Commentary addresses an issue that emerges as a common theme in dealing with legal considerations in advising physicians: Are there circumstances in which telling "less than the whole truth" is warranted? I discuss two categorical instances in which a physician's responsibility to be entirely forthcoming in dealing with medical matters, as well as the correlative legal consequences of abandoning candor, have proven to be especially vexing. Initially, I discuss "the blameless medical excuse" in organ transplant cases; more specifically, the common practice of providing prospective organ transplant donors a medical excuse as a cover for their unwillingness to donate an organ to a family member or close friend. I then turn from questions of dissembling the truth to compunctions about revealing it. The latter survive as a lively, ongoing dialogue in both the medical and legal arenas, in the context of the role of apology for medical negligence. I conclude with some summary observations about physician disclosure and its fit within a regime of medical malpractice law.
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