Category: Tort Law


Product Liability Law — RIP

I was talking to one of my colleagues recently about our school’s Product Liability course, and we both asked the same question–Is there any point in teaching that as a separate class anymore?  Product liability law barely has a pulse these days.  Why do I say that?

1.  Federal statutes preempt state product liability law with increasing frequency (either because Congress drafts them that way or because the Supreme Court is inclined to read them that way).

2.  There isn’t much that is distinctive about product liability law.  In most cases, the inquiry into whether a product or a warning label is defective just reduces to the same old negligence inquiry (a cost/benefit assessment).  We say that product liability is strict, but that rests on a conclusion that the product is defective or unreasonable.

3.  Litigation to regulate particular goods through product liability (guns, fast food, etc.) have basically floundered.

I’m sure that many product liability lawyers and scholars disagree that their field is dead.  As the Olympic fencing judge says, “En Garde!”


Possible Liability for the Aurora Shootings

In the aftermath of the murders in the Colorado movie theater, the inevitable lawsuits are getting underway.  The exceptional nature of the act may make it hard to hold the theater negligent for lack of security (though people versed in Colorado tort law may feel otherwise), but the more interesting question is the potential liability of the university where the alleged killer was a student.

There is a claim that the suspect was seeing a school psychiatrist, and that she took some steps to alert university officials that this patient posed a danger to others. There is authority in at least one well-known case from California (Tarasoff) for the proposition that a university psychiatrist (and, by extension, the university) can be held liable for failing to warn the intended victim of a crime when the doctor has ample reason to think that her patient might kill that person.

There are two lines of inquiry that seem relevant here.  One is whether the doctor’s duty lapsed when the alleged killer dropped out of school (if he actually did). The second crucial question is what exactly alarmed the doctor about the patient. If it was a general threat, then her failure to warn the police may not matter.  If it was more specific (say, involving, a fantasy about killing people at a movie theater), then that might pose a liability problem.  But again, I’m not familiar with the Colorado cases on this issue.


Spitzer’s Loose Public Talk and Private Emails

The angry Eliot Spitzer, former New York attorney general and quick-term governor, continues to have the habit of loose talk, bordering on the defamatory.

A court last week ordered New York’s current A.G., Eric Schneiderman, to find and disclose email files Spitzer created using a private account while working as a state employee. Such files, if they exist, are covered by the state’s freedom of information law, the court held.

The files are sought by a defendant, Howard Smith of AIG, in a civil prosecution Spitzer launched 7 years ago while A.G.   The emails, which Spitzer says do not exist, are rumored to contain characteristic loose talk that could prove embarrassing to Spitzer and compromise cases he brought.  As I am researching and writing about AIG, my work would benefit greatly from seeing any such emails.

Spitzer is not likely to cooperate. He blasted Schneiderman this week over his handling of the matter.  He also took pot shots at Smith, as well as Hank Greenberg, former head of AIG, that appear libelous, in much the way Spitzer last year drew a defamation lawsuit for comments about other people he targeted as A.G.

Here are excerpts from a report published by the New York Law Journal (requires subscription).  Read More


The NFL Lawsuit

About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head.  I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon.  While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.

One issue in the case is “What did the NFL know and when did they know it?”  If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain.  It is more likely, though, that this is not true.  What then?  Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems.  One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better?  Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product.  Obviously football players knew that they could get seriously hurt.  But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?

This is actually not a bad topic for a symposium, but in the meantime what do you think?  (The prospective question of how you can make football safer is a separate issue.)


Stanford Law Review, 64.3 (2012)

Stanford Law Review

Volume 64 • Issue 3 • March 2012


Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality

(Marco Simons is Legal Director of EarthRights International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.

On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
Read More


Unseaworthiness and Product Liability

I thought I’d make the following observation for those of you who study or work on product liability issues.  The maritime equivalent of product liability is the unseaworthiness action, which is based on the vessel owner’s provision of a defective ship. (There is also a contract version of unseaworthiness.) Much like product liability, the unseaworthiness tort action evolved from nothing, to negligence, and then to strict liability, which is the current rule.  I don’t know enough about the details of what makes a ship unseaworthy to know if there are some useful analogies or insights in that doctrine for product liability, but it’s worth a look.


Is the Alien Tort Statute Really Limited to Suits Against U.S. Citizens?

(Marco Simons is Legal Director of EarthRights, International.  He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)

The Supreme Court will hear argument in Kiobel v. Royal Dutch Petroleum Tuesday, to determine whether corporations can be sued for serious human rights abuses under the Alien Tort Statute (ATS), 28 USC 1350. But some scholars are urging the court to decide the case on other grounds.

There is a set of conservative legal scholars who intensely dislike the ATS and especially its modern use in international human rights cases. This dislike is somewhat mystifying – what the ATS essentially does is allow cases to be brought in federal court, rather than state court, where they implicate torts against aliens in violation of serious international law violations, such as torture or genocide. Would it really be better to hear cases against Paraguayan torturers or Rwandan genocidaires in state court?

Led by Curtis Bradley, Anthony Bellia, and Bradford Clark, this group of scholars argued strenuously that the ATS did not allow cases under modern human rights law at all. After this position was thoroughly repudiated by the Supreme Court in Sosa v. Alvarez-Machain, they have trotted out new arguments. The latest, from Bellia & Clark, is that the ATS only allows suits by aliens against U.S. citizens; it’s started to get some traction, as four Ninth Circuit judges adopted a version of this argument in their dissent in the Sarei v. Rio Tinto case decided in October.

Read More


LTAA Symposium: Response to Matwyshyn on Artificial Agents and Contracting

Andrea Matwyshyn’s reading of the agency analysis of contracting  (offered in A Legal Theory for Autonomous Artificial Agents and also available at SSRN) is very rigorous and raises some very interesting questions. I thank her for her careful and attentive reading of the analysis and will try and do my best to respond to her concerns here. The doctrinal challenges that Andrea raises are serious and substantive for the extension and viability of our doctrine. As I note below, accommodating some of her concerns is the perfect next step.

At the outset, I should state what some of our motivations were for adopting agency doctrine for artificial agents in contracting scenarios (these helped inform the economic incentivizing argument for maintaining some separation between artificial agents and their creators or their deployers.


[A]pplying agency doctrine to artificial agents would permit the legal system to distinguish clearly between the operator of the agent i.e., the person making the technical arrangements for the agent’s operations, and the user of the agent, i.e., the principal on whose behalf the agent is operating in relation to a particular transaction.


Embracing agency doctrine would also allow a clear distinction to be drawn between the authority of the agent to bind the principal and the instructions given to the agent by its operator.

Third, an implicit, unstated economic incentive.

Read More