Ellen Bublick’s fasinating article, “Upside Down? Terrorists, Proprietors and Responsibility for Criminal Harm in the Post-9/11 Tort-Reform World,” (forthcoming Loyola of Los Angeles Law Review) is now available for downloading on SSRN. Here’s the abstract.
* * *
In the 1993 World Trade Center bombing case a New York jury was asked to apportion liability among all potentially responsible actors. The jury apportioned responsibility for the devastation as follows – terrorists 32%, Port Authority of New York and New Jersey 68%. The Port Authority was twice as responsible for the devastation as were the terrorists themselves. Public bewilderment, even outrage, over the jury’s verdict has been palpable. But what if the jurors’ verdict was correct?
In this article, Professor Bublick argues that the problem with the World Trade Center apportionment is not the particular jury verdict, but rather the tort-reform-produced state apportionment law that, in a minority of jurisdictions including New York, asks juries to divide responsibility between these negligent and intentional tortfeasors. Consequently, the paper argues that courts should avoid all or at least certain intentional-negligent responsibility comparisons. However, the paper then discusses courts’ second-best position – to uphold all jury apportionments, even those that assign greater, or perhaps far greater, responsibility to negligent than intentional parties.