TORTS & PRODUCTS LIABILITY LAW eJOURNAL
"Putting (and Keeping) Proximate Cause in Its Place"
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
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 â€œincoherentâ€? and â€œmorally undesirable.â€? It is bad enough, on Mooreâ€™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 canâ€™t even get its own misguided causal inquiry half-right.
I do not share Mooreâ€™s jaundiced view of the harm-within-the-risk test of proximate cause â€“ what I will call the â€œrisk ruleâ€? 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 Mooreâ€™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 ruleâ€™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.
"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
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 individualâ€™s privacy. It is appropriate to describe the action as an action in tort, or a â€˜privacy tortâ€™. 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 â€˜serious invasion of privacyâ€™ should additionally be described as an â€˜interference with privacyâ€™ for the purposes of the Privacy Act 1988 (Cth).
(iii) The focus of the tort should be upon the intrusion into a plaintiffâ€™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 â€œreasonable expectationsâ€?: the lack of a practical remedy enables continuation of an intrusive practice without restraint, which practice reduces the level of protection that would be â€œreasonably expectedâ€?, 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 plaintiffâ€™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 â€˜serious invasion of privacyâ€™ complaint to the Privacy Commissioner. A new sub-section 13(6) should be added to the Privacy Act 1988 (Cth): â€˜(6) A serious invasion of privacy under the [title of new Commonwealth Act] is an interference with the privacy of an individual,â€™ 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 ALRCâ€™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 â€œpersonal informationâ€? 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.
Connecticut Law Review, (2015) Forthcoming
ERICA RACHEL GOLDBERG, Harvard Law School
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 oneâ€™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 oneâ€™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"
Juridical Review, 3: 375-450 (2013)
JOHN C. KLEEFELD, University of Saskatchewan - College of Law
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 Donoghueâ€™s counsel cited only seven cases in written argument â€” in contrast to the roughly two dozen cited by Lord Atkin. So even without Atkinâ€™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 Atkinâ€™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 â€” transcribed by the author before being lost in a fire â€” 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.
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.
To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.
If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com
Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)
LSN SUBJECT MATTER EJOURNALS
BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.
Torts & Products Liability Law eJournal
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
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
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