The Situationist

Posts Tagged ‘Torts’

Torts and Social Change – Today!

Posted by The Situationist Staff on November 16, 2011


Wednesday, November 16, 2011, 5:30 – 7pm


Harvard Law School – Pound 102


Law and Social Change Program of Study

Contact E-mail


Interested in hearing more about how the 1L curriculum relates to social justice issues and how it could be applied to social justice work? Please join us as Professor Martha Chamallas and Professor Jon Hanson deliver an insightful presentation on Torts and Social Change, the second in our exciting new speaker series designed to give 1L students (and interested 2Ls and 3Ls as well!) the opportunity to hear their professors discuss how the subjects they teach are relevant in creating positive social change.

Posted in Events, Law, Legal Theory, Situationist Contributors | Tagged: , , | Leave a Comment »

Fiery Cushman at Harvard law School – Video

Posted by The Situationist Staff on September 8, 2010

From The Harvard Law Record (Sept. 2009):

On September 21st, Fiery Cushman, a newly-minted PhD recipient and post-doctoral fellow at Harvard’s Mind, Brain and Behavior Initiative, presented some of his recent research at an event titled “Outcome vs. Intent: Which Do We Punish, and Why?” Cushman’s work suggests that at a gut-level, people assess whether a behavior was morally right or wrong by looking at the actor’s intentions, but when assigning punishment, people are overwhelmingly interested in outcomes, even if an outcome was accidental.

Cushman described several experiments where he was able to look at a participant’s intentions in isolation from the actual outcome of the participant’s actions. In one case, participants were given the choice of dice that would later be rolled to assign rewards to a second, receiving party. When given the opportunity, the recipient would consistently punish more often when the dice produced less favorable rewards, even if the initial participant intended to provide rewards generously. This work has interesting implications for tort law, explaining in part why findings of negligence lead to large compensatory rewards even in the absence of any intentional action.

Below is the video of that fascinating talk.

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Vodpod videos no longer available.
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For a sample of related Situationist posts, “Law Students Flock to Situationism,” “Fiery Cushman at Harvard Law School,” Attributing Blame — from the Baseball Diamond to the War on Terror,” “John Darley on ‘Justice as Intuitions’ – Video,” “The Situation of Punishment in Schools,” Why We Punish,” “Kevin Jon Heller on The Cognitive Psychology of Mens Rea,” Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast),” and “Situationist Torts – Abstract.”

Posted in Social Psychology, Video | Tagged: , , , , , , , , | 1 Comment »

The Cultural Situation of Tort Law

Posted by The Situationist Staff on August 7, 2009

Cultural TortsDavid Engel and Michael McCann, have posted on SSRN their introduction to their forthcoming edited volume Tort Law as Cultural Practice.  Here’s the abstract.

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Most scholars would agree that tort law is a cultural phenomenon and that its norms, institutions, and procedures both reflect and shape the broader culture of which it is a part. Yet relatively few studies have attempted to analyze tort law as a form of cultural practice or to address basic challenges regarding the methods or subject matter that are appropriate to such analyses. This essay introduces and summarizes a new volume of interdisciplinary, comparative, and historical studies of tort law in the United States as well as in the United Kingdom, Japan, Italy, India, Thailand, and elsewhere (the volume is entitled Fault Lines: Tort Law as Cultural Practice, Stanford University Press, 2009). The introductory essay contends that culture is not some ‘thing’ outside of tort law that may or may not influence legal behavior and deposit artifacts in the case law reporters. Rather, tort law and culture are inseparable dimensions of social practice in which risk, injury, liability, compensation, deterrence, and normative pronouncements about acceptable behavior are crucial features. Contributors to this volume demonstrate a variety of ways in which tort law’s cultural dimensions can be explored as they write about such topics as causation and duty, gender and race, the jury and the media, products liability and medical malpractice, insurance and the police, and tobacco and asbestos litigation. Their analyses extend far beyond the confines of the tort reform debate, which has until now set the agenda for much of the sociolegal research on tort law.

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To download the introduction for free, click here.  To read a sample of related Situationist posts, see “Situationist Torts – Abstract,” “Mark Lanier visits Professor Jon Hanson’s Tort Class (web cast),” and “Why Torts Die – Abstract.”

Posted in Abstracts, Cultural Cognition, Law, Legal Theory | Tagged: , , , , , , | Leave a Comment »

The Situation of Tort Jury Apportionments: Terrorists, Proprietors, and Responsibility – Abstract

Posted by The Situationist Staff on August 29, 2008

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.

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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.

Posted in Abstracts, Law | Tagged: , , , , | Leave a Comment »

Why Torts Die – Abstract

Posted by The Situationist Staff on June 7, 2008

image by zachstern - FLICKRKyle Graham recently posted his article, “Why Torts Die” (forthcoming 35 Florida State U. L. Rev. (2008)) on SSRN. Here’s the abstract.

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Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort’s opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven’t simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.

Posted in History, Law, Public Policy | Tagged: , , , | Leave a Comment »

The Situation of Judges

Posted by The Situationist Staff on May 15, 2008

Below we have mashed up three articles about the recent, highly contentious Wisconsin Supreme Court election — “Big money, nasty ads highlight Wisconsin judicial race” by Bill Mears for CNN, “Life, liberty and the pursuit of a fair judiciary” from The Economist, and “Gableman victorious” by Stacy Forster and Patrick Marley for the Milwaukee Journal Sentinel — and sprinkled in several illustrative Youtube videos of campaign ads.

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Justice is meant to be impartial. To this end, Britain’s judges are appointed for life. In America federal judges are as well. But in 39 states some or all judges must face election and re-election, often with unbecoming hoopla. An election to the Supreme Court of the state of Wisconsin has just involved about $5.5m and more than 12,000 aired advertisements. Habeas circus, one might say.

Michael Gableman defeated Louis Butler, an incumbent on Wisconsin’s Supreme Court, on April 1st, and the cacophony has not yet subsided.

The scuffle has revealed two worrying traits of America’s judicial elections.

First, they have become bitter contests. In 2006 91% of Supreme Court elections featured television advertisements, up from 22% in 2000, according to New York University’s Brennan Center. Second, the war over tort, or liability, reform has turned judicial elections into a nasty battlefield—especially in those states where state Supreme Court justices are directly elected. Karl Rove, once George Bush’s Svengali, ascended in part by helping Texas businessmen fight trial lawyers for control of that state’s highest court. The most expensive judicial race in America’s history, a $9.3m fight in 2004, saw tort interests pour money into rival campaigns for a seat on the Illinois Supreme Court.

In Wisconsin the signs are troubling. The state’s new era of judicial elections began last year. A series of rulings had galvanised corporate leaders, explains James Buchen of Wisconsin Manufacturers and Commerce (WMC), the state’s business lobby. In one ruling in 2005, the Supreme Court overturned the state’s caps on medical-malpractice cases. In another, the court ruled that a plaintiff could sue several manufacturers when he did not know which (if any) had caused him injury.

In 2007 groups from all sides poured cash into a state Supreme Court race, spending $5.8m. In Wisconsin’s April election, one estimate is that the candidates together raised about $1m (Mr Butler outspent Mr Gableman), while outside groups such as WMC and the teachers’ union spent more than $4.5m.

“What’s remarkable about this race is how dominant the outside groups have been,” said J.R. Ross, editor at “They’ve outspent the candidates themselves 10-to-1 on TV ads. They’re essentially drowning out the messages of Butler and Gableman.

“Wisconsin is the current hot spot in the culture wars that have played in the courts in recent years,” said Rebecca Kourlis, founder and director of the Institute for the Advancement of the American Legal System, which works to improve the civil justice system. “More and more money is being poured into these judicial races, more planning on how candidates position themselves for a political audience. These elections have simply gotten out of control.”

[Gableman] raised far less in campaign funds than Butler, but benefited from support by such third-party groups as Wisconsin Manufacturers & Commerce, the state’s biggest business lobby; the Coalition for America’s Families, which advocates for what it calls conservative causes; and Wisconsin Club for Growth, [see their 30-second ad below] which supports lower taxes.

The Brennan Center for Justice estimates the three groups had spent a combined $1.4 million on ads.

The Greater Wisconsin Committee, a group that says it backs progressive causes, ran pro-Butler and anti-Gableman ads. The Wisconsin Education Association Council, the state’s largest teacher’s union, ran an anti-Gableman spot.

Gableman is supported by a coalition of sheriff’s and district attorneys, and Wisconsin Right to Life.

Butler has the nod from a number of judges, law enforcement groups and the state AFL-CIO.

This year’s flood of money might have drawn less censure if it had spurred a proper debate on judicial philosophy. It didn’t. Mr Gableman’s campaign produced an advertisement suggesting that Mr Butler, a black man, had helped free a black rapist. An advertisement supporting Mr Butler claimed that Mr Gableman was soft on paedophiles. Even WMC’s advertisements were about crime.

Unlike some states, Wisconsin does not require candidates to list themselves by party. Butler was appointed to the state high court in 2004 by Democratic Gov. Jim Doyle. He runs on his judicial and life experience. The only African-American on the bench, Butler, 56, has been a longtime judge.

He was previously a public defender, and that is where the current attack ads have focused. His opponent ran his first TV commercial suggesting Butler’s appellate defense of a child rapist led to the defendant’s early release. But the man had, in fact, served his entire sentence.

Butler said the integrity of the judicial system had been challenged by the negativity of the campaign and said reform was needed.

Gableman, who was criticized widely for an ad attacking Butler’s work as a public defender, said that voters deserved to know about the backgrounds of the candidates and that he was “very proud of the fact we ran a positive campaign.

“You don’t get a more stark contrast or clear contrast than that between a prosecutor and criminal defense attorney,” Gableman said. “Therefore, I don’t view it as a negative ad. I view it as an ad that illustrates the real differences of our professional backgrounds.”

A conservative group, Coalition for America’s Families, ran its own spot criticizing Butler for writing an opinion overturning another rapist’s conviction. The group also claimed he had “sided with criminals nearly 60 percent of the time,” a statistic it has not substantiated., a self-described “consumer advocate” for voters, called the ad “distorted.”

Gableman eventually called on the coalition to stop the ads.

Gableman, also a longtime state judge, calls himself a judicial conservative. He is a former prosecutor and campaigns on a tough law-and-order agenda.

A left-leaning group — Greater Wisconsin Committee — ran an ad suggesting Gableman got his job only because of political payback. The ad implied the judge was named to his current seat after a $1,250 campaign donation to then-Republican Gov. Scott McCallum, who appointed him. The ad was attacked by a non-partisan state monitoring committee. McCallum denounced the group as well, saying Gableman is well-qualified for the bench.

Regardless of the tenor of the campaign, money may be undermining faith in the court. A recent poll conducted for Justice at Stake, a group devoted to judicial independence, found that 78% of respondents in Wisconsin believe campaign contributions influence judges’ rulings.

The stakes in Wisconsin and nationwide are high, and are fueling renewed calls for reform on how judges are selected. The 19 states that held state Supreme Court elections last year shattered previous campaign cycle spending records — $34.4 million in all — which have increased steadily in the past decade.

The idea of judges running for elected office may seem like a strange concept, but it is the law in 21 states that have some sort of contested system for top judges. Thirty states — along with the federal system — appoint their judges, often under a merit selection system in which the governor gets the final say.

All 21 states will hold elections for Supreme Court seats this fall, but the early race in Wisconsin is considered a political bellwether of the tenor and sway outside partisan groups will have on how these campaign will be run.

The seven Wisconsin Supreme Court justices, including Butler, have already signed a letter saying they support the creation of a system of public financing for state Supreme Court campaigns.

The state Senate this session passed a bill that would have set up a system of public financing, but it did not advance in the Assembly

The question is whether to change the new dispensation and, if so, how? Comprehensive legal reform might help keep the tort war from seeping into judicial elections. But the elections themselves are unlikely to be scrapped. More feasible would be to pass reforms, such as public financing for campaigns or stricter rules to prevent conflicts of interest. In Wisconsin politicians and Supreme Court judges all work beneath the state capitol’s giant dome. It is getting hard to tell the difference between them.

A study released last October by the non-partisan Annenberg Public Policy Center found people in states with no partisan elections for judges had a higher level of trust and confidence in the judiciary. But two-thirds of those surveyed also preferred electing judges directly to having them appointed.

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For Situationist related posts, see “The Situation of Judging – Part I,” and “The Situation of Judging – Part II.”

Posted in Choice Myth, Politics | Tagged: , , , , , , , | Leave a Comment »

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