The Deep Architecture of American COVID-19 Tort Reform 2020-21

The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for “reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.”This article, prepared for the 27th Annual Clifford Symposium, “Civil Litigation In A Post-Covid World,” has two parts. First, it collects, as of the end of 2021, the various tort reforms adopted by United States jurisdictions and classifies them according to a variety of dimensions, including the scope of the immunities proposed and the changes to tort doctrines by which defendants were provided increased protections from suit. Second, it provides a theory of tort reform in the United States from the perspective of whether reforms are “tort negative” or “tort positive” and provides historical examples of both types, including the General Aviation Revitalization Act and the Federal Employers’ Liability Act.The Article analyzes the variety of tort reforms proposed and adopted since 2020 in connection with COVID-19 as a particular type of tort negative tort reform. Based on this analysis, policy makers can clearly see the lack of rational connection between the reforms adopted and the purported public policy goals upon which these legislative efforts were based. This Article should server as a cautionary tale of a failed effort at tort reform, and one that should not be emulated in the future

Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law

Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions

What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today

In 2001 the Supreme Court, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., suggested that, although modern punitive damages punish, in earlier times they almost exclusively compensated for noneconomic damages that were ignored by a less progressive legal system. This Article demonstrates that the historical foundation upon which the Supreme Court bases its argument is groundless. In the eighteenth and nineteenth centuries punitive damages served a number of functions, but none of them were to provide the noneconomic damages identified by the court. Instead, as the Article shows, the sort of injuries for which punitive damages were once demanded would still be uncompensated by contemporary doctrines of compensatory damages. This Article uses the Court\u27s confused analysis in Cooper to demonstrate that the dichotomy upon which it relied-that, in the law of punitive damages, punishment and compensation are mutually exclusive categories-is neither historically accurate nor analytically necessary

Reading \u3cem\u3eThe Legal Process\u3c/em\u3e

A Review of Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in eh Making and Application of La

What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today

In 2001 the Supreme Court, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc. suggested that, although modern punitive damages punish, in earlier times they almost exclusively compensated for noneconomic damages that were ignored by a less progressive legal system. This article demonstrates that the historical foundation upon which the Supreme Court bases its argument is groundless. In the Eighteenth and Nineteenth Centuries punitive damages served a number of functions, but none of them were to provide the noneconomic damages identified by the court. Instead, as the article shows, the sort of injuries for which punitive damages were once demanded would still be uncompensated by contemporary doctrines of compensatory damages. This article uses the court\u27s confused analysis in Cooper to demonstrate that the dichotomy upon which it relied - that, in the law of punitive damages, punishment and compensation are mutually exclusive categories - is neither historically accurate nor analytically necessary

Amicus Curiae Brief of Professors Anthony J. Sebok and John C. P. Goldberg in Support of Appellee the Devereux Foundation, Inc.

Amici Anthony J. Sebok and John C. P. Goldberg are law professors with a particular focus in the field of tort law and damages. As scholars in this field, Amici recognize that the issues raised in this case are of tremendous importance to the history, theory, and development of tort law in the United States. The distinction between compensatory damages and punitive damages has long been recognized in both U.S. and Georgia law. Amici have a distinct interest in this Court reaching a correct decision with the benefit of complete and accurate historical information regarding the awarding of punitive damages in English common law, and endeavor to provide a thorough and accurate recounting of this important historical context for this Court’s consideration

What Is It Like to Think Like a Pre-modern?

There are a number of ways to tell the story of the change in American tort law that occurred in the nineteenth and twentieth centuries. Some, like John Witt, Lawrence Friedman, and Mort Horwitz, focus on changes in material conditions. Others, like Richard Posner, Charles Gregory, and Robert Rabin, focus on changes in intellectual or doctrinal beliefs about the nature of tort law, and the best mix of rules to achieve its ends