TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Helping Buyers Beware: The Need for Supervision of Big Retail" Free Download
University of Pennsylvania Law Review, Vol. 163, No. 1311, 2015

RORY VAN LOO, Yale University, Law School
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Since the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms' internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, huge volumes of data, and in-store experimentation to develop behavioral economics-related practices analogous to those seen in consumer finance. The empirical data suggest those practices in the aggregate may significantly harm all households, costing even a family at the poverty line hundreds of dollars annually. Yet unlike in consumer finance, regulators have declined to supervise sellers of retail goods.

This Article argues for wider adoption of the financial sector’s emerging — though largely unarticulated — paradigm that views regulatory supervision of firms as central to consumer protection. That paradigm suggests the consumer goods sector needs the inverse of what consumer finance needed in the wake of the crisis. Then, Congress created the Consumer Financial Protection Bureau to provide more consumer protection because regulators had previously focused excessively on supervising financial institutions to ensure firms' safety and soundness. In contrast, the consumer goods sector has a regulatory body — the Federal Trade Commission’s (FTC) Bureau of Consumer Protection — that focuses solely on consumer protection but does not supervise firms. Fortunately, congressional action would not be required for the FTC to develop a supervision program. The agency’s leadership would simply need to exercise the authority that Congress long ago granted.

"The Contributory Negligence Act at Seventy" Free Download
78(1) Saskatchewan Law Review 31-126

JOHN C. KLEEFELD, University of Saskatchewan - College of Law
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The year 2014 marks the seventieth anniversary of Saskatchewan's Contributory Negligence Act, which, in its present form, provides for the apportionment of liability according to fault in a tort action and the rights of those at fault to seek contribution inter se for amounts paid to a successful plaintiff.

In human life, 70 is a respectable age to celebrate, reflect on, and recount one’s life — perhaps not even too late an age to reform oneself. As in life, so with statutes. What are the Act’s vital statistics? What are the factors that gave rise to its birth? Who are the people who have interacted with it? How has it fared through childhood, youth, adulthood, and middle age and what are its prospects for its more mature years? In light of changes recommended over many decades by the Uniform Law Conference of Canada and law reform bodies in Alberta, Ontario, British Columbia, Saskatchewan, Nova Scotia, and Manitoba, is it time to entertain change?

By asking and attempting to answer these questions, we will be heeding a call by UK scholars Arvind and Steele to redress the dearth of scholarly attention paid to legislation in tort law — to take up their challenge of seeing statutes not just as “operating at the margins of the common law…[but] as contributing to the pattern of principles to be found in the law.?

"Multiple Causation, Apportionment and the Shapley Value" Free Download

SAMUEL FEREY, University of Lorraine
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PIERRE DEHEZ, University of Louvain
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Multiple causation is one of the most intricate issues in contemporary tort law. Sharing a loss suffered by a victim among multiple tortfeasors is indeed difficult and Courts do not always follow clear and consistent principles. Here, we argue that the axiomatic approach provided by the theory of cooperative games can be used to clarify that issue. We have considered the question from a purely game theoretic point of view in Dehez and Ferey (2013). Here we propose to analyze it in a legal perspective. We consider in particular the difficult case of successive causation to which we associate a general class of games called "sequential liability games". We show that our model rationalizes the two-step procedure proposed by the Restatement Third of Torts, apportionment by causation and apportionment by responsibility. More precisely, we show that the weighted Shapley value associated to a sequential liability game is the legal counterpart of this two-step procedure.

"The Mythology of Salomon's Case and the Law Dealing with the Tort Liabilities of Corporate Groups: An Historical Perspective" Free Download
(2014) 40 Monash University Law Review 452

PHILLIP LIPTON, Monash University - Department of Business Law & Taxation
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Salomon’s case has for a long time been widely seen as a landmark case that is the keystone of modern company law. A mythology has developed around the case that has resulted in the Salomon principle exercising an iron grip on company law. The rigid application of the principle in Salomon’s case to corporate groups has enabled corporate groups to structure themselves in ways that limit the tort liabilities of the group as a whole and so raises important social, economic and ethical questions regarding the allocation of risk that are not addressed by the application of the Salomon principle. This article suggests that given the importance of the social, economic and ethical issues raised in cases of mass torts that invariably involve corporate groups, it is preferable that these issues are resolved by tort law, which is concerned with the allocation of risk, thereby circumventing the dead hand of Salomon.

"Taking the Costs of Consent Seriously: An Alternative Understanding of Legal Efficiency" Free Download
The Journal Jurisprudence, Forthcoming

DANIELE BERTOLINI, University of Toronto - Faculty of Law
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Most law and economics literature employs efficiency criteria that fit poorly with the structural features of the legal environment. The major limitations trace back to the analytical separation of law from its formative process, which has resulted in an almost exclusive focus on the allocative efficiency of legal entitlements and little or no attention paid to the causal relationship between the efficiency of legal rules and the efficiency of the lawmaking process. I contend that this conventional output-oriented approach is susceptible to the following criticisms: 1) it is affected by logical circularity and/or logical incompleteness; 2) it fails to provide any assurance of increased social welfare, 3) it does not account for the presence of losers, and 4) it does not account for the predictability/adaptivity trade-off associated with legal change.

Based on the foregoing considerations, this paper proposes an alternative understanding of legal efficiency. Efficiency is not an objective property of the outcome independent of the process; rather, it depends on the ability of the law-making process to embody, in a cost-effective manner, the general consensus of all the people concerned. Based on this premise, this paper proposes a methodology focused on the “process-outcome? relationship within the production of law, which I call “process efficiency analysis?. It relies on the analytical tools offered by transaction-cost economics and is grounded in the normative principles of constitutional contractarianism. In the last section of the paper, I illustrate process efficiency analysis by using an example from tort law.

"Answer to Questions for the Record Submitted to Professor Patricia W. Moore Following the Hearing on 'The State of Class Actions Ten Years after the Enactment of the Class Action Fairness Act'" Free Download

PATRICIA W. HATAMYAR MOORE, St. Thomas University School of Law
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This is Professor Moore’s response to questions for the record submitted to her after the hearing before the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, U.S. House of Representatives, on "The State of Class Actions Ten Years After the Enactment of the Class Action Fairness Act" on February 27, 2015. The questions submitted to her asked whether, when determining the requirements of class certification, Congress should limit a class to those individuals "with the same or similar injuries" or those individuals whose damages or injuries have been sustained due to "the same or similar proximate cause" or "the same product or activity."

The response begins by noting that the wording of the questions appeared designed to eliminate what the majority witnesses at the hearing termed "no-injury class actions." The response argues that the term "no-injury class action" is a recently-invented term without roots in the law of class actions, and that the term is misleading when applied indiscriminately to all class actions. The substantive law, whether federal or state, determines when a person is "injured," and the majority witnesses’ assertion that certain class members have suffered "no injury" contravenes the governing substantive law.

The response then more specifically addresses the suggested language in the questions submitted. The suggested limitations, if passed by Congress, would restrict class actions. First, it is unclear how the broad-brush language would be applied to class actions for injunctive relief, such as civil rights cases. Second, the language sounds like existing law, but those seeking to eliminate so-called "no-injury class actions" intend that the language should be interpreted in a new and more radical way so to make it much more difficult to obtain class certification than under existing law. Third, the language would in essence require a class, at certification, to include only class members who could prove their case on the merits. That would constitute an impermissible "fail-safe" class allowing any class member who did not prove her case on the merits to escape being bound by the class judgment. Fourth, the existing certification requirements of commonality, typicality, and predominance provide sufficient tools for federal judges to rigorously apply the standards to unique factual situations.

The response also notes that the Civil Rules Advisory Committee is currently considering numerous changes to Rule 23, so that legislation is premature. Finally, the response calls for Congress to require the public release of data on federal class actions.

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About this eJournal

This eJournal distributes working and accepted paper abstracts dealing with torts, product liability, and insurance law. Related articles may also be published in other Legal Scholarship Network journals, including Law and Economics; Litigation, Procedure, and Dispute Resolution; Health Law and Policy; Employment and Labor Law; and Environmental Law and Policy.

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LSN SUBJECT MATTER EJOURNALS

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Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Torts & Products Liability Law eJournal

ANITA BERNSTEIN
Anita and Stuart Subotnick Professor of Law, Brooklyn Law School

RICHARD A. EPSTEIN
Laurence A. Tisch Professor of Law , New York University School of Law, Stanford University - Hoover Institution on War, Revolution and Peace, James Parker Hall Distinguished Service Professor of Law Emeritus, University of Chicago - Law School

MARK GEISTFELD
Sheila Lubetsky Birnbaum Professor of Civil Litigation, New York University School of Law

MARK F. GRADY
Professor of Law, University of California, Los Angeles (UCLA) - School of Law

SAUL LEVMORE
William B. Graham Professor of Law, University of Chicago Law School

ROBERT L. RABIN
A. Calder Mackay Professor of Law, Stanford Law School

W. KIP VISCUSI
University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Law School, Research Associate, National Bureau of Economic Research (NBER), University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Department of Economics, University Distinguished Professor of Law, Economics, and Management, Vanderbilt University - Owen Graduate School of Management, Vanderbilt University - Strategy and Business Economics

RICHARD W. WRIGHT
Professor of Law, Illinois Institute of Technology - Chicago-Kent College of Law