Table of Contents

Aggregate Litigation Goes Private

Adam S. Zimmerman, Loyola Law School Los Angeles
Dana Remus, University of North Carolina School of Law

The Duty of Care as a Duty in Rem

Peter J. Choi, George Mason University School of Law

Book Review - Tort Law: Challenging Orthodoxy

Bevan Marten, Victoria University of Wellington School of Law

Morphing Case Boundaries in Multidistrict Litigation Settlements

Margaret S. Thomas, Louisiana State University - Paul M. Hebert Law Center

'Made-Whole' Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions

John A. Day, Independent

Tort Law and Human Flourishing

Nicholas McBride, University of Cambridge - Faculty of Law

Private Clean-Up Causes of Action and Federal Preemption

Roger Bernhardt, Golden Gate University - School of Law


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Aggregate Litigation Goes Private" Free Download
63 Emory Law Journal 1317 (2014)
Loyola-LA Legal Studies Paper No. 2014-38
UNC Legal Studies Research Paper No. 2485416

ADAM S. ZIMMERMAN, Loyola Law School Los Angeles
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DANA REMUS, University of North Carolina School of Law
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In Disaggregative Mechanisms, Professor Jaime Dodge documents how corporate defendants increasingly design their own mass resolution systems to avoid collective litigation — what she calls “disaggregative? dispute resolution. According to Dodge, such schemes promise benefits not only to putative defendants, but also to plaintiffs — resolving disputes quickly, handling large volumes of claims predictably, and sometimes, offering more compensation than would be available through aggregate litigation. She observes, however, that these systems also risk underdeterrence. Dodge concludes by endorsing disaggregative mechanisms while suggesting a need for more public oversight.

In the following response, we argue that, left unregulated, such highvolume claim systems threaten transparency, deterrence, and even the rule of law. We therefore agree with Dodge’s call for public oversight. But we observe that a number of policing and oversight mechanisms already exist. Today, lawmakers and regulators police collective arbitration and private settlement funds, in a wide variety of areas — from financial and environmental regulations to employment and consumer protection laws. After reviewing the ways that policymakers currently regulate corporate dispute resolution, we examine their effectiveness by exploring two regulated private settlement systems in more detail: (1) regulations developed by the Obama Administration that require airlines to offer “liquidated damages? using a preapproved settlement grid when they overbook customers on a flight and (2) regulations imposed by the Office of the Comptroller of the Currency following accusations that many of the nation’s largest banks executed “robo-signed? mortgages that required banks to perform a detailed “independent foreclosure review? of past loans with borrowers. These case studies demonstrate both the challenges to, and opportunities for, government bodies that attempt to encourage sound regulation of mass private settlement systems without compromising their potential contributions to increased access, equality, and efficiency.

"The Duty of Care as a Duty in Rem" Free Download
4 J.L.: Periodical Laboratory of Leg. Scholarship (2 New Voices) -- (Oct. 2014 Forthcoming)

PETER J. CHOI, George Mason University School of Law
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Over the course of the twentieth century, the common law has lessened the duty of care — the threshold element of negligence liability — to a confused doctrine that is applied in multiple ways. Underlying this confusion and serving as a topic of extensive judicial and scholarly debate is the question of how the relational dynamic between the plaintiff and the defendant at the time of the alleged tort bears on the issue of whether the defendant owed the plaintiff a duty of care.

In examining recent academic debate on the foregoing question that has attended the drafting and publication of The Restatement (Third) of Torts, this paper defends the Third Restatement's "world-at-large" view of the duty of care. It does so on the basis of a theory that conceptualizes the duty of care as a duty in rem — an obligation owed to people in general (rather than to some defined class) by virtue of every person’s ownership of some particular "thing." This theory reifies personal freedom — the liberty every person has to act and use his property with reasonable care in the pursuit of his interests — to challenge criticisms of the Third Restatement that suggest that a "duty to the world" entails a nihilistic view that offers no substantive concept of obligation and renders duty a mere instrument for issuing extraneous, policy driven decisions. In challenging these criticisms, this paper argues that properly conceived, a duty of care owed to the "world at large" is an obligation owed to people by virtue of the exclusive and moral dominion every person is entitled to exercise over his personal freedom. By measuring the scope of the duty of care on the basis of the "thing" of personal freedom such that a person owes that duty to society at large, an in rem conception provides the normative guidance necessary to facilitate the social interactions with which negligence law is primarily concerned — that is, the arm's-length interactions comprising a vast and anonymous network of people who necessarily impose risks of physical harm on each other in pursuing their various ends.

"Book Review - Tort Law: Challenging Orthodoxy" Free Download
[2014] New Zealand Law Journal 166

BEVAN MARTEN, Victoria University of Wellington School of Law
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This book review of Stephen G A Pitel, Jason W Neyers and Erika Chamberlain (eds) Tort Law: Challenging Orthodoxy (Hart Publishing, Oxford, 2013) focuses on Kit Barker's chapter on the concept of vindication in torts and private law in particular, and provides some comments on New Zealand's approach to the concept.

"Morphing Case Boundaries in Multidistrict Litigation Settlements" Free Download
Emory Law Journal, Vol. 63, No. 6, 2014

MARGARET S. THOMAS, Louisiana State University - Paul M. Hebert Law Center
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The boundaries of federal multidistrict litigation (MDL) are blurring, as district courts seek innovative ways to facilitate global settlements to resolve multijurisdictional, multidimensional, national mass torts. The techniques emerging from the district courts have mostly evaded appellate review and received little scholarly attention, but they raise important challenges to traditional understandings of the nature of MDL and complex litigation. This Article argues that factually similar cases proceeding in multiple court systems in mass tort disputes create a “federalism problem? for global settlements: global settlements typically benefit from oversight by a single judge, but often there is no single judge who can exercise control over all the parties who might participate in such a settlement. This Article identifies a trend emerging in MDL settlements that attempts to solve the federalism problem by extending the MDL court’s authority. In the settlement phase, some MDL judges have begun experimenting with the exercise of power over state litigants (and even individuals who made private claims but never filed suit in any court), in order to facilitate global settlements. In this situation, the “case? appears to encompass the national mass tort settlement itself. This Article concludes that the aggregative trend toward transjurisdictional settlement authority in MDL has no basis in the MDL statute. The emerging practice submerges the federalism problem into the settlement agreement without regard to the inherent limitations on the federal court’s structural power, but the federalism problem remains unsolved.

"'Made-Whole' Made Fair: A Proposal to Modify Subrogation in Tennessee Tort Actions" Free Download
1 Belmont Law Review 71 (2014)

JOHN A. DAY, Independent
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This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is designed to directly address. The detailed framework of this Proposal, including its five fundamental Principles and their underpinning rules, are set forth at length in Part III. Finally, Part IV concludes by analyzing the practical application of this Proposal throughout the various stages of the litigation process and offers guidance to judges, attorneys, and litigants alike as to how such subrogation disputes can be equitably resolved. In sum, the Modified Made-Whole Doctrine Proposal is meant to provide for the efficient, just application of the made-whole doctrine to subrogation interests with respect to Tennessee’s law of comparative fault.

"Tort Law and Human Flourishing" Free Download
Pitel, Neyers and Chamberlain (eds), Tort Law: Challenging Orthodoxy (Hart Publishing, 2013)
University of Cambridge Faculty of Law Research Paper No. 55/2014

NICHOLAS MCBRIDE, University of Cambridge - Faculty of Law
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This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).

In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.

I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.

"Private Clean-Up Causes of Action and Federal Preemption" Free Download
Real Property Law Reporter, July 2014

ROGER BERNHARDT, Golden Gate University - School of Law
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Analysis of how the United States Supreme Court decision in CTS v Waldburger will apply to toxic tort actions California.

The biggest problem that California practitioners will have with the new decision by the United States Supreme Court in CTS Corp. v Waldburger, is that it comes out of North Carolina. It gives no California reference for its holding that §309 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 USC §9258) preempts state statutes of limitations that apply to common law actions by private individuals for toxic torts and replaces their normal triggering event (the date the cause of action accrues) with a “federally required commencement date? starting when “the plaintiff knew (or reasonably should have known)? that his personal injuries or property damage were caused by the defendant’s release of hazardous substances, but is subject to an express exception for time limits based on state statutes of repose rather than on statutes of limitations, according to the majority opinion (joined in by all but Justices Ginsburg and Breyer). Which do we have in California: limitations or repose periods?

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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