Table of Contents

Putting (and Keeping) Proximate Cause in Its Place

John Oberdiek, Rutgers, The State University of New Jersey - School of Law - Camden

Mass Tort Claims in International Investment Proceedings: What Are the Lessons from the Ecuador-Chevron Dispute?

Chiara Giorgetti, Richmond University School of Law

Serious Invasions of Privacy: Final APF Submission on ALRC Discussion Paper 80

David F. Lindsay, Monash University - Faculty of Law
Peter Clarke, Independent
David Vaile, University of New South Wales (UNSW) - Faculty of Law, Cyberspace Law and Policy Centre
Graham Greenleaf, University of New South Wales, Faculty of Law
Bruce Arnold, University of Canberra
Nigel Waters, University of New South Wales (UNSW) - Faculty of Law

Emotional Duties

Erica Rachel Goldberg, Harvard Law School

The Donoghue Diaries

John C. Kleefeld, University of Saskatchewan - College of Law


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Putting (and Keeping) Proximate Cause in Its Place" Free Download
Forthcoming in Kimberly Kessler Ferzan and Stephen Morse (eds.), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford)

JOHN OBERDIEK, Rutgers, The State University of New Jersey - School of Law - Camden
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This is a draft contribution to a forthcoming fetschrift in Michael S. Moore's honor, to be published by Oxford University Press. The chapter takes on an aspect of Moore's important work on causation in law.

Before one can recover for an injury sounding in negligence, one must establish that the defendant more likely than not proximately caused the injury. That the positive law of negligence imposes this requirement is beyond controversy. What is more controversial is whether the requirement is conceptually and morally defensible. Michael Moore, singly as well as in tandem with Heidi Hurd, powerfully argues that it is neither. Specifically, Moore contends that the harm-within-the-risk test of proximate causation, despite its venerable history in tort law and reaffirmation in the latest Restatement, is “incoherent� and “morally undesirable.� It is bad enough, on Moore’s view, that negligence law bifurcates its causal inquiry, distinguishing as it does the question of actual causation from that of proximate causation, rather than pursuing a unified naturalistic inquiry into the substantiality of causal contribution. What is worse is that tort law can’t even get its own misguided causal inquiry half-right.

I do not share Moore’s jaundiced view of the harm-within-the-risk test of proximate cause – what I will call the “risk rule� for short. I begin by questioning his understanding of the risk rule as it figures in tort law, and go on to argue that neither his conceptual nor his moral criticism of the risk rule is decisive. In the course of rebutting Moore’s criticisms, I outline what I take to be the most compelling account of the risk rule in the law of torts. What emerges is a conception of proximate cause that is thoroughly moralized. Of course moral premises must be invoked to defend the risk rule’s moral merit, but, I argue, they must also be invoked to defend its conceptual coherence. In my view, the risk rule is both morally and conceptually sound.

"Mass Tort Claims in International Investment Proceedings: What Are the Lessons from the Ecuador-Chevron Dispute?" Free Download
University of Pennsylvania Journal of International Law, Vol. 34, 2013

CHIARA GIORGETTI, Richmond University School of Law
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In parallel to the Lago Agrio and Aguinda litigations in the U.S. and Ecuadorian proceedings that have been discussed already, the Chevron dispute includes an international dimension that presents equally complex and important challenges, but focuses on very different issues and involves different parties.

My remarks introduce these international proceedings first to explain the different actions taken by the parties in different forums. I then assess the viability of international dispute resolution mechanisms for mass tort claims in general, before considering more specifically whether they can provide sufficient redress to mass tort claimants. Finally, I briefly introduce alternative dispute resolution forums to assess their applicability in mass tort claims.

"Serious Invasions of Privacy: Final APF Submission on ALRC Discussion Paper 80" Free Download

DAVID F. LINDSAY, Monash University - Faculty of Law
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PETER CLARKE, Independent
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DAVID VAILE, University of New South Wales (UNSW) - Faculty of Law, Cyberspace Law and Policy Centre
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GRAHAM GREENLEAF, University of New South Wales, Faculty of Law
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BRUCE ARNOLD, University of Canberra
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NIGEL WATERS, University of New South Wales (UNSW) - Faculty of Law
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This submission by the Australian Privacy Foundation (APF) to the Australian Law Reform Commission (ALRC) strongly endorses establishment in national legislation in Australia of a cause of action for serious invasion of an individual’s privacy. It is appropriate to describe the action as an action in tort, or a ‘privacy tort’. The Australian Privacy Foundation (APF) is Australia's leading privacy advocacy organisation. This submission is in response to the proposals in ALRC Discussion Paper 80: Serious Invasions of Privacy.

Key submissions made by the APF are as follows:
(i) The most effective structure of a cause of action is that which is consistent with an intentional tort; consisting of elements that a plaintiff must satisfy with countervailing defences available to any putative defendant. There should be no requirement for the court to undertake a balancing exercise as an essential element in determining whether the plaintiff can, on his or her own case, succeed or not.
(ii) The cause of action for a ‘serious invasion of privacy’ should additionally be described as an ‘interference with privacy’ for the purposes of the Privacy Act 1988 (Cth).
(iii) The focus of the tort should be upon the intrusion into a plaintiff’s seclusion or private affairs (including by unlawful surveillance) and/or the misuse or disclosure of private information about the plaintiff.
(iv) There is no sound legal or policy basis for limiting the scope of the action to either intentional or reckless acts rather than incorporating negligent acts.
(v) There is potential for an undesirable downward ratchet effect in the concept of “reasonable expectations�: the lack of a practical remedy enables continuation of an intrusive practice without restraint, which practice reduces the level of protection that would be “reasonably expected�, which in turn reduces the scope of the tort over time.
(vi) The fourth proposed element of the tort, that it is only available where the invasion of privacy is 'serious', is both unnecessary and arbitrary.
(vii) There is little utility in incorporating a balancing exercise of the plaintiff’s privacy interest against freedom of expression or other broader public interest, the fifth element of the proposed cause of action.
(viii) Federal, State and Territory courts should have jurisdiction to hear a serious invasion of privacy action. However, there are very strong reasons for providing the option to complainants/plaintiffs to take a ‘serious invasion of privacy’ complaint to the Privacy Commissioner. A new sub-section 13(6) should be added to the Privacy Act 1988 (Cth): ‘(6) A serious invasion of privacy under the [title of new Commonwealth Act] is an interference with the privacy of an individual,’ together with such limited consequential changes (if any) as are necessary to make the Privacy Act consistent with the new statutory action and the [title of new Commonwealth Act].
(ix) There may be a case for clarifying the law of breach of confidence even if a statutory tort were to be introduced, but some of the ALRC’s proposals are not justifiable.
(x) While it is important to remove inconsistencies and promote uniformity in the the current State and Territory surveillance device and workplace surveillance laws, this must not be at the expense of reducing the level of protection of Australians against unjustified surveillance. Proposed uniform laws should apply to all existing and emerging technologies that are capable of monitoring and recording the activities of people and their data. Surveillance device laws should incorporate a mechanism for awarding compensation, or other forms of relief, to victims of unauthorised surveillance.
(xi) The public interest activities of responsible journalists in investigating and reporting on matters of public interest, such as uncovering corruption, do not require a broad or vague exception for journalists.
(xii) The ALRC proposal is desirable that a new APP (Australian Privacy Principle) be inserted into the Privacy Act to require an APP entity to provide a simple mechanism for an individual to request the destruction or de-identification of personal information that was provided to an APP entity by the individual. A regulator should be so empowered, preferably the Privacy Commissioner with a right of appeal to the AAT (Administrative Appeals Tribunal).
(xiii) The definition of “personal information� in the Privacy Act 1988 (Cth) should be amended so as to confirm that the information will remain personal information, despite any steps to anonymise it, if there is any significant possibility that it may be re-identified in future.

"Emotional Duties" Free Download
Connecticut Law Review, (2015) Forthcoming

ERICA RACHEL GOLDBERG, Harvard Law School
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The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on the hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by modern scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries.

This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law.

"The Donoghue Diaries" Free Download
Juridical Review, 3: 375-450 (2013)

JOHN C. KLEEFELD, University of Saskatchewan - College of Law
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Donoghue v Stevenson is justly the most well-known legal case, at least in Commonwealth legal systems, and its fame rests largely on the judicial opinion of Lord Atkin in the case and his enunciation of the neighbour principle, which heralded the modern law of negligence. Among Donoghue devotees, it is well known that May Donoghue’s counsel cited only seven cases in written argument — in contrast to the roughly two dozen cited by Lord Atkin. So even without Atkin’s cryptic modesty ("I speak with little authority on this point, but my own research, such as it is . . . "), we can infer that he must have pursued his own research agenda. What has so far been an inference is now a certitude, with the startling discovery of a bundle of papers relating to the case. Written in a spidery and sometimes illegible hand and merely initialled "JRA" (that is, James Richard Atkin), they reveal Atkin’s research process, his innermost thoughts about the state of the law, his efforts to lobby his judicial colleagues, and his excitement as the judgment took shape. The Donoghue Diaries — transcribed by the author before being lost in a fire — are therefore a must read for legal historians, lawyers, jurisprudes and all aficionados of the legal imagination. Footnotes have been added for clarification or reference, and citations and other conventions have been updated where warranted.

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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