Cristina Tilley

Robert Prevost has many alter egos. He is a world-famous Chicago White Sox fan¹; the 267^th Pontiff of the Roman Catholic Church²; and, it seems, something of a torts scholar. Pope Leo’s 2026 encyclical letter, Magnifica Humanitas, sounded a global alarm about the coming wave of artificially intelligent injuries to humanity and demanded that communities of men and women operating outside the infrastructures of government, market, and academy take a lead in stanching that tide. Magnifica is a theological offering, but its secular format and ambitions are unmistakable. The Pontiff’s 38,000-word publication begins with a literature review, articulates a theory of social rights and duties, applies that theory to AI, and is larded with footnotes. Except for the fact that millions of people have actually read it, the manuscript has all the intellectual earmarks of a traditional law review article.

The piece begins with a brief history of Church social doctrine. In 1891, the first truly modern pope announced that he had an ecclesiastical “right and duty to examine social realities, make pronouncements about them, and indicate paths for finding just solutions.”³ The Church has since weighed in on issues ranging from the relationship between capital and labor to the crisis of climate change. (¶ 3 n.4, ¶ 4 n.6.) Over the course of these studies, it has been guided by a set of core principles including the equal worth of all individuals and the need for policymaking to serve the common good. (¶ 97.) Most important – and most relevant to Leo’s tort bona fides – it has insisted that social problems are best handled by those closest to the problem, a concept known as “subsidiarity.”

Subsidiarity treats “local communities and intermediary organizations” as the presumptive experts in deciding what constitutes their common good. The solutions they produce are, the Church contends, more creative and respectful of individual dignity than “opaque and unilateral” declarations handed down from “higher-level authorities.” (¶¶ 70, 71, 68.) But despite its virtues, Leo complains that subsidiarity has today given way to a top-down “technocratic paradigm,” that substitutes “the logic of efficiency, control and profit” (¶ 92) for the values of individual dignity and community solidarity.

Magnifica thoughtfully applies the church’s social doctrine to artificial intelligence. Leo argues that AI, for all its touted promise, can be put to “clearly harmful uses.” (¶ 102.) These include the delegation of decisions about jobs, credit, and reputations to “automated systems that do not know compassion;” the “reinforc[ement of] stereotypes,” and the adoption of a dystopian program to “optimiz[e] the species” at any cost. (¶¶ 115-17.) Bending AI back to the service of humanity requires “robust legal frameworks, independent oversight, informed users and a political system that does not abdicate its responsibility.” (¶ 106.) But Leo seems to doubt that politics and regulation are equal to the task. “Small but highly influential groups can . . . influence democratic processes and steer economic dynamics to their own advantage, undermining social justice,” he observes. Because power and expertise are concentrated in “private” hands, he wonders whether the modern state can reliably “guide and direct innovation.” (¶ 5.)

If economic and technocratic might have sapped the democratic will to prevent AI injury, what remains? Subsidiarity. “Civil institutions” that are neither government nor market, Leo posits, are uniquely “capable of overcoming” the efficiency ethos by “openly discuss[ing]” how AI can serve social justice, participating in “choices about AI’s just use,” making “corrections” when AI wrongs occur, and compelling wrongdoers to “remedy any harm caused.” (¶¶ 157, 108, 105.)

Magnifica stops short of identifying tort law, tort lawsuits, and tort juries as the kinds of civil institutions in question. But the leap is irresistible. Throughout the encyclical, Leo’s vocabulary of correction and remedy reflects a more-than-working knowledge of injury law and theory. Sixteen times, Leo contrasts the modern glorification of “efficiency” with the quainter values of dignity, justice, and care – neatly distilling the enduring debate about tort’s true purpose, and casting his lot with the corrective justice school. That school, and its neighbor, civil recourse, share three themes dear to Leo. First, corrective justice takes as tort’s primary concern the restoration of relational dignity between two embodied actors rather than the workings of an impersonal market.⁴ Second, civil recourse seeks to dignify injured persons by letting them self-activate the remedial process.⁵ Third, members of both camps insist that tort litigation is designed to identify and rectify wrongs.⁶

These concepts have real-world traction whether they appear in legal scholarship or papal letters. Just weeks before the pontiff published his letter, a California court convened a jury that held Meta and YouTube liable in tort for designing platforms that addicted the plaintiff in that case to toxic screen use.⁷ And just weeks after the encyclical went out, democratically elected attorneys general across the country settled a blockbuster case by disbanding a jury that was primed to discuss platform wrongdoing. True to Leo’s model, high-level authorities wielding public law power decided amongst themselves that a handsome Meta payment and measures like age verification served the common good. But unbeholden to any private client, they allowed the company to keep using addictive algorithms and to escape any admission of wrongdoing.⁸ In contrast, a jury of Angelenos catalyzed popular resistance to the tech sector by finding that Meta acted with “malice, oppression, and fraud,”⁹ to injure the 20-year-old private plaintiff who brought the company to trial.¹⁰

Biography makes plausible the inference that Leo sees private law as a potent instrument of the common good. His undergraduate studies were in philosophy, he belongs to the communitarian Order of Saint Augustine, and he is a credentialed canon lawyer¹¹ – all experiences likely to produce admiration for a corrective justice model of tort. Background may also explain his distaste for efficiency norms. Leo earned his divinity degree at the Catholic Theological Union, a school established in the 1960s to apply the social and economic justice teachings of the Second Vatican Council. CTU shares a campus with the University of Chicago, where Milton Friedman, George Stigler, Richard Posner, and Ronald Coase were venerating the untrammeled market just as a young Robert Prevost was learning to question it across the street.

Formally trained lawyers and economists might dismiss what a theologian has to say about AI law and policy. Technofuturists, too, have taken to scoffing at moralists who doubt their vision. Magnifica deserves attention for precisely these reasons. It recaptures terrain that AI inevitabilists have colonized too easily in recent years. It treats the laypeople who are injured by AI externalities as experts on their own dignity. And it offers them voice in a “third sector” that sounds an awful lot like tort.

The post In Praise of Pontification appeared first on Torts.

Kenneth W. Simons

Tort negligence, like Gaul, is divided into three parts. The first territory is conscious negligence: the actor, aware of the risks, nevertheless chooses to take them, and is unreasonable in doing so. The second is inadvertent negligence: the actor is unaware of the foreseeable and unjustifiable risks, and that ignorance is unreasonable. And the third is a failure to safely execute a task, a failure that is unreasonable. A driver can be negligent for harming another:

• by choosing to run a red light despite recognizing the risk to a pedestrian;
• by looking at her cellphone and not seeing the pedestrian; or
• by making the effort to brake in plenty of time but clumsily failing to press the brake firmly enough.

Most tort scholars who investigate negligence doctrine explore only the first domain, but a few have explored the second and third.¹

In a forthcoming article, A Two-System Theory of Negligence, Professor Christopher Brett Jaeger joins this doctrinal expedition and offers a provocative and insightful new account of what constitutes negligence in the second and third realms. Jaeger carefully applies the two-system theory of cognition in psychology (made famous by Daniel Kahneman) to this question. As he explains:

Two-system theory divides the processes happening in the human mind into “system-one” processes, which are fast, effortless, and do not require conscious control (things like seeing, hearing, automatic reactions, and basic sensorimotor skills), and “system-two” processes, which are slow, effortful, and depend on conscious control (like reasoning and deliberative decision making). (P. 4.)

Jaeger notes that most analyses of negligence focus on system-two processes—on how actors consciously evaluate whether to take a precaution against the risks that their conduct poses. He instead focuses on how courts apply standards of reasonable care to system-one unconscious cognitive processes such as failures to see a hazard, slow reaction times, or moments of clumsiness. The distinction is sometimes subtle. Failure to look or listen for a hazard while driving is system-two. Failure to see or hear (despite looking and listening) is system-one.

Examining the relevant case law concerning system-one failures, Jaeger discovers that courts purport to apply the same reasonable person test here that they apply in system-two cases, but in actual practice, they are more receptive to system-one claims involving perceptual failures (such as failing to see a hazard in time while driving) than those involving substandard reaction time (such as a subway train operator not braking quickly enough) or clumsy conduct due to sensorimotor failures (such as slipping and falling, in cases other than moving too hastily; the latter would be system-two failures). Yet, he observes, psychological research reveals that perceptual failures are more common than most people realize and are not in that respect different from the other kinds of system-one failures.

Jaeger then turns to the question of how courts should analyze reasonable care in system-one cases. He argues that judges and juries should apply a descriptive criterion, what an ordinary person would have done, to all unconscious cognitive process cases, but a different normative criterion, what a reasonable person should have done, to the conscious decision cases. Lumping all negligence cases together is, he claims, a mistake. The two different forms of negligence should be governed by these different doctrinal rules.

The article is very well-written, analytically rigorous, and thoroughly researched. Relying on his expertise as a PhD in Psychology, Jaeger has clearly identified an important problem that deserves much more serious study, and he has offered a creative and very promising solution. His formulation of the distinction between system-one and system-two cases is an example of the precision and power of his argument: if the precaution “is something the defendant could have done with conscious effort,” the plaintiff is making a system-two claim, otherwise it is a system-one claim. (P. 7.) As he carefully explains, this account is subtly different from the more standard distinction between unawareness and awareness of a risk:

[T]he distinction between system-one and system-two negligence claims does not turn on what the defendant was actually thinking, what risks they were aware of, or what actions they deliberated. Instead, the distinction hinges on whether the defendant could have taken the particular accident-preventing action urged by the plaintiff with conscious effort. (Pp. 29-30.)

Thus, Jaeger divides up the terrain somewhat differently from the more conventional division I described in the first paragraph of this jot.²

Jaeger helpfully reviews relevant psychological studies about system-one failures. He also responds well to potential counterarguments, including the concern that tort liability for system-one failures is really an instance of strict liability, not negligence.

Some issues in the article could be developed further. First, it would help to clarify how the proposed “ordinary person would” standard that he claims should govern system-one cases can be reconciled with the long-standing negligence principle that (with rare exceptions) custom does not define the standard of care. Second, some instances of type-one negligence such as clumsiness and short reaction time are a product of physical disabilities, at least in part. It would therefore be useful to examine more carefully how the usual flexible “reasonable person with the actor’s physical disability” test would and should apply here. Third, it would be instructive to examine how system-one failures of memory are treated in the case law; Jaeger touches on the topic only in connection with academic studies.

But it is hardly a major criticism that some issues in this article would benefit from further research or analysis. Professor Jaeger has redrawn the boundaries of different types of negligence cases in a novel and highly illuminating way. That is quite an accomplishment.

The post If Your Perception, Reaction Time, Or Coordination Is Substandard, Are You Negligent? appeared first on Torts.

Christopher J. Robinette

The professional standard for medical malpractice, traditionally set by custom, has come under scrutiny. The most common concern is that custom may not reflect actual best practices,¹ and health care providers may be reluctant to adopt those newer, better methods because the custom standard will not protect them.² That criticism assumes the custom standard was originally set in good faith, based on patient outcomes and not health care industry profits.

In their compelling piece, Customary Corruption, Professors Ani Satz (Emory) and Liza Vertinsky (Maryland) raise a further complicating factor. What if the customary standard of care has been influenced by profit-driven entities outside of the health care provider-patient relationship? Professors Satz & Vertinsky accomplish three things in Customary Corruption. They provide updated survey data on the jurisdictions’ use of custom in medical malpractice cases,³ case examples of pharmaceutical companies affecting the standard of care, and sharpened arguments against deferring to custom as the sole standard of care. Satz & Vertinsky advocate for “the abandonment of the professional custom standard for prescribing practices in tort.” (P. 763.) But it is clear they are laying the groundwork for further attacks on customary standards in medical malpractice and even other learned professions. (P. 764.)

Although custom still dominates medical malpractice standards, it is no longer universal. According to Satz & Vertinsky’s survey, twelve states adhere to the professional custom standard, fourteen have abandoned it, one state has a hybrid approach, and twenty-three states have unclear or conflicting law. (P. 717.) In seven of the states that have abandoned the custom standard, custom evidence continues to influence judicial outcomes. (P. 717.) Six of the states with the customary standard have expanded the scope of evidence to include more than customary practice. (P. 717.) In essence, Satz & Vertinsky “conclude that professional custom continues to play a critical, and in many cases determinative, role in physician liability in up to three-quarters of the states.” (P. 716.)

The dominance of custom leaves the medical malpractice standard vulnerable to manipulation, and Satz & Vertinsky turn to three examples from the pharmaceutical industry, in which companies expand the scope and volume of drug prescriptions. The manipulation includes both on-label, using a drug in the way described on an FDA-approved drug label, and off-label, using a drug in a way not approved by the FDA (often for different conditions).

The first case study, of Thalomid, demonstrates influence over the standard by pressing off-label uses of a drug with known safety concerns. In the 1950s and 1960s, thalidomide was widely used in Europe as a sedative. (P. 724.) Evidence of significant birth defects caused by thalidomide forced the manufacturer to withdraw its FDA application in 1962. (P. 725.) Though pulled from global markets, and despite its toxicity, thalidomide proved beneficial for ENL, a skin disease linked to leprosy. (P. 726.) Celgene, a subsidiary of a larger chemical company, acquired thalidomide in the hopes of finding new uses for it. (P. 726.) In 1998, Celgene obtained conditioned approval to use thalidomide, under the name Thalomid, to treat ENL. (P. 727.) With this approval, Celgene introduced the drug, rebranded as Thalidomid, to U.S. markets. Celgene focused on breaking into the lucrative cancer-treatment market, and by 1999, 90% of Thalidomid prescriptions were for oncology, a purpose not approved by the FDA. (P. 728.)

Celgene grew its sales team from twenty in 1998 to one hundred by 2002, and trained its sales force in the uses of Thalidomid for cancer treatment. (P. 730.) Celgene is also alleged to have “paid kickbacks—in the form of speaker fees, paid clinical trials, advisory board positions, and authorship of ghost-written articles—to physicians in exchange for prescriptions of its drugs.”(P. 731.) Significantly, those physicians who received more promotional contacts prescribed at a higher rate than those with fewer contacts. As Satz & Vertinsky note, this demonstrates “the ability of Celgene to influence professional custom and, ultimately, the legal standard of care.” (P. 732.) In 2005, the FDA approved a new version of thalidomide, Revlimid, for use in treating cancer. (P. 728.) Despite a lack of evidence of efficacy and concerns about safety, Celgene encouraged physician use of thalidomide to such a degree that, for some types of blood cancer, it became customary use. (P. 731.)

The second case study, of Zyprexa, also focuses on off-label use. Zyprexa is an antipsychotic drug that, as a side effect, makes patients easier to manage. (P. 722.) According to Satz & Vertinsky, Zyprexa’s manufacturer, Eli Lilly, marketed Zyprexa to institutions with vulnerable populations, such as nursing homes and assisted living facilities. (P. 741.) Moreover, Eli Lilly downplayed serious side effects of Zyprexa, including significant weight gain and elevated blood sugar levels. (P. 738.) In 2021, a New York Times investigation found at least twenty-one percent of nursing home residents were being administered antipsychotics, many to their detriment. (P. 734.) The residents receiving antipsychotics far exceeded the number who had conditions for which antipsychotics were useful. (Pp. 734-35.) Eventually, Eli Lilly faced thousands of lawsuits over health issues. (P. 739.) Unfortunately, negative information coming to light does not necessarily reset the standard: “Even after the lawsuits against Eli Lilly for off-label marketing were settled, and federal government programs were established to reduce use of antipsychotics in nursing homes, Zyprexa and other atypical antipsychotics continued to be used in nursing homes, though at lower rates.” (P. 742.)

The third case study, of Abduhelm, illustrates an attempt to influence the FDA and create custom via on-label use. Abduhelm was developed as a treatment for Alzheimer’s disease, which has no existing cure and no treatment capable of more than slowing its advance. Biogen, the drug’s manufacturer, was able to obtain accelerated FDA approval in 2021, despite the fact that its phase three clinical trials “did not appear to provide any measurable benefits.” (Pp. 746-47.) The FDA made some unusual moves during the process, including radically departing from its advisory committee’s recommendations and shifting from a traditional approval to an accelerated approval pathway. (P. 747.) Once approved, Biogen began a campaign to increase demand for Abduhelm. Specifically, it sought help from the Alzheimer’s Association to pressure physicians to prescribe Abduhelm. (P. 750.) Because there was a dearth of treatments and families were desperate, the efforts paid off. (P. 750.) Biogen also hired four physicians to work for them, speaking and writing positively about Abduhelm, despite limited evidence of its efficacy. (P. 752.)

Because drugs are often expensive, manufacturers need to ensure that they are covered by insurance, including Medicare. In this case, despite political pressure, the Centers for Medicare & Medicaid Services (CMS) refused to extend Medicare coverage to Abduhelm unless patients were enrolled in clinical trials. (P. 753.) Although the decision was detrimental for Abduhelm, Biogen was developing a similar drug, Leqembi, as it was marketing Abduhelm. Apparently safer than Abduhelm, Leqembi nevertheless “seems to offer small to uncertain benefits and brings with it safety risks and high costs.” (P. 755.) Once Leqembi received full FDA approval in July 2023, CMS removed reimbursement restrictions on Leqembi. (P. 755.) Biogen is now focused on increasing sales of Leqembi, including a thirty percent increase in its sales force. (P. 755.) Given the lack of alternatives, Satz & Vertinsky predict that the use of Leqembi will become the standard of care for treating Alzheimer’s disease, at least in some jurisdictions. (P. 756.)

In all three case studies, Satz & Vertinsky note that manufacturers stand to gain from expanding the “range of uses for and users of its drug.” (P. 723.) Expansion helps set the customary standard of care. Of course, if the drug is safe and effective, no patient harm will result. But “in other contexts, the distortion of prescribing decisions is detrimental to patients and wastes resources on ineffective care.” (P. 723.)

Satz & Vertinsky conclude by making the case for abandoning the customary standard and moving to a reasonable person standard for negligent prescribing. (P. 756.) Such a move would clarify the muddled use of custom identified in their jurisdictional survey. (Pp. 757-58.) Moreover, moving to a reasonableness standard would create more accurate outcomes because non-custom evidence would become admissible, including evidence of corporate influence on the profession. (P. 760.)

Satz & Vertinsky identify the strongest counterargument as a concern about judicial or juror incompetence. (P. 761.) They respond by stating that even though medicine involves complicated scientific evidence, prescribing cases also involve informed consent to drug protocols and harm from drug use, issues within the competence of a judge or jury. (P. 761.) Satz & Vertinsky also point out that incompetence is a two-way street; without admissibility of non-custom evidence, jurors and even judges may be ignorant of “corporate influence on professional custom and the legal standard of care.” (P. 761.)

Satz & Vertinsky have opened an additional front against the professional custom standard, and I look forward to their future pieces. But before moving on, it makes sense to evaluate their preferred solution of the reasonable person standard. Satz & Vertinsky state there is no indication that litigation became more burdensome in those jurisdictions that moved to a reasonable person standard. (Pp. 762-63.) And that makes sense. Moving to the reasonable person standard should not change medical malpractice litigation dramatically. But the changes would be mostly positive.

Custom evidence is highly influential to juries. With the vagueness of the reasonable person standard, jurors are hungry for objective evidence. Being told that a large number of people in an industry do something in a particular way is like a lifeline. And the more complex the industry is, the more likely the reliance on custom. Medical practices are among the most complex that jurors encounter. Therefore, juror reliance on custom will almost certainly persist even if custom is not the sole benchmark. Jurors are likely to move away from custom only if presented with compelling evidence against it. Satz & Vertinsky have pinpointed one type of compelling evidence: corporations have influenced custom in ways that are sometimes inconsistent with patient care. But jurors will never receive that relevant information, and will not make decisions informed by it, if the professional custom standard is retained.

Customary Corruption is important scholarship, and Satz & Vertinsky are to be commended for it.

The post Gaming the Standard appeared first on Torts.

Nora Freeman Engstrom

In his thoughtful—and bracing—Comment, A Shield for Whom? The Disastrous Hidden Toll of Section 230 on Children, Dominic G. Roschival revisits a familiar statute with fresh urgency.  He shows that a statute, enacted to furnish limited protection to fledgling online intermediaries, has, through aggressive judicial interpretation, become something else entirely: a sweeping immunity that displaces core commitments of tort law, discourages common-sense safety mechanisms, and leaves grievously injured plaintiffs without a remedy.

Enacted in 1996, Section 230 of the Communications Decency Act provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”¹ This protection, Congress believed, was necessary in order to “maintain the robust nature of Internet communication.”² And indeed, absent Section 230, the Internet likely would not exist as it does in its current form.³

But in the intervening decades, even as the Internet has dramatically changed, many courts have contorted the statute, to apply it (to quote Danielle Citron) “far beyond its text and originally intended purpose.”⁴

Courts’ expansive reading of Section 230 has often left plaintiffs without redress.  Consider Jane Doe No. 1 v. Backpage.com.⁵ There, three young victims of sex trafficking alleged that Backpage, an online classified ad company, did far more than host third-party-generated information. According to plaintiffs’ complaint, the platform, which made a mint on ad sales, deliberately structured its website to facilitate abuse: it stripped metadata from photos, enabled anonymous payments, misled law enforcement, and designed rules that traffickers could easily and foreseeably evade.

This wasn’t a speech case. But, kneeling at the altar of Section 230, the trial court dismissed the plaintiffs’ complaint, and the First Circuit affirmed.  In so doing, the First Circuit did not dispute the horror of the allegations. To the contrary, the court acknowledged that the plaintiffs’ circumstances “evoke outrage.”⁶ But outrage, the court concluded, was no match for Section 230. Because Backpage lived online, and because the victims’ harm was titrated through third-party activity, plaintiffs’ claims couldn’t get out of the gates. Even Backpage.com’s design choices—for instance, its decision to accept anonymous payments—were recast as “editorial choices,” tidily within the ambit of Section 230.⁷

The result is jarring.  If these allegations had arisen offline—if a firm had designed a system that predictably facilitated sex trafficking, profited from that system, and stubbornly declined to implement common-sense safeguards to protect victims—liability would at least be on the table.  Here, by contrast, the courthouse doors were effectively closed.

Congress, to be sure, has responded to this particular scenario.  In 2018, it enacted legislation which created a sex-trafficking carveout.  But some courts have read the carveout narrowly. (The Ninth Circuit, for instance, has held that the exception does not apply if the provider did not “knowingly benefit” from trafficking.⁸) And outside the sex-trafficking context, the problem persists: Section 230 lets platforms profit from foreseeable harm while shirking responsibility.⁹

From a tort perspective, this is a remarkable—and troubling—state of affairs.

Tort law rests on a basic premise: If an actor tortiously creates a risk of harm and that harm materializes, the actor is on the hook.  And indeed, ever since we jettisoned the “last-wrongdoer rule” in the early years of the last century, there’s been a strong consensus that the defendant should be made to answer for a plaintiff’s injury regardless of whether the connection between the defendant’s action and the plaintiff’s injury is direct or indirect. ¹⁰ As Robert Rabin explains in his classic article, Enabling Torts, a person can be liable if she directly inflicts the injury—or equally if she merely “paves the way” for a reckless individual to inflict harm on others. ¹¹ Or, as the Third Restatement of Torts succinctly puts it: “The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of . . . a third party.”¹²

That principle applies across domains.  Hotels can be liable for guests’ misconduct.  Bar owners have to answer for injuries inflicted by their visibly inebriated patrons.  Landlords can bear responsibility for assaults on tenants.  Therapists may face liability for their patients’ violent acts.  And car owners can be on the hook for automobile-inflicted injuries, even if they aren’t behind the wheel.  In each instance, liability attaches not because the defendant directly inflicted harm; typically, in these cases, the defendant and victim have never met.  Instead, liability attaches because the defendant played a meaningful role in creating the conditions under which the direct tortfeasor could act.

This idea is not new.  Consider this articulation of the principle from the first Restatement of Torts, back in 1934:

If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.¹³

The Restatement section explains that “[t]o deny recovery” just because the harm is indirect would “make the duty a nullity.”¹⁴

But Section 230, as construed by some courts, does just this.  It allows platforms to design systems that predictably amplify harmful content.¹⁵ Then, it lets them disclaim responsibility when that amplification causes predictable—and even predicted—injury. It thus represents a statutory distortion of ordinary tort principles in order to protect powerful players no longer in need of protection.

Roschival highlights all this and shows how sharp the distortion can be.  The problem is not merely that some plaintiffs lose.  It is that entire categories of claims—including many that involve the sexual abuse of children—never get off the ground.

In so shielding platforms from liability, Section 230 doesn’t just complicate litigation.  It weakens deterrence and reduces online companies’ incentives to take common-sense steps to mitigate harm.  It ensures that vital, policy-relevant information that tort litigation would otherwise surface remains under wraps.  And, because many “direct” tortfeasors are effectively judgment-proof, it deprives plaintiffs of necessary compensation.  The result is a familiar but unsettling combination: concentrated power paired with diffuse, largely unremedied harm.

But, as Roschival convincingly argues, the concerns that animated Section 230’s original enactment do not justify the regime we currently have—a system in which courts frequently, but inappropriately, treat Section 230 as a blunt instrument that indiscriminately protects online providers, even when they foreseeably create, magnify, or profit from the very risks that give rise to plaintiffs’ injuries.

Fortunately, there are tentative signs that the tide is turning and that, consistent with Roschival’s vision, courts are beginning to read Section 230 more narrowly.  Consider Lemmon v. Snap, Inc.  There, parents alleged that Snapchat’s “Speed Filter”—a feature that overlaid a user’s real-world speed onto a photo—encouraged their children to drive at reckless speeds, with fatal results.¹⁶ Snap predictably turned to Section 230.  But the Ninth Circuit wouldn’t bite.  Refusing to treat a design decision as a publishing decision, it recognized that the parents sought to hold Snap liable as the manufacturer of a defective product, not as the publisher of anyone’s speech.  Section 230 was therefore inapposite.¹⁷

A federal court reached a similar conclusion in the sprawling social-media addiction MDL, where plaintiffs are alleging that Meta, Snap, TikTok, and YouTube engineered their products to addict children.¹⁸ Early on, platforms predictably argued that the suit attacked third-party content, but the court (mostly) disagreed.  It wisely held that a number of the plaintiffs’ claims (including those targeting deficient age-verification tools, appearance-altering filters, and the absence of effective parental controls) turned on the platforms’ own design choices and could proceed unobstructed by Section 230.¹⁹

Finally, earlier this year, in Commonwealth v. Meta Platforms, Inc., the Massachusetts Supreme Judicial Court held that Section 230 did not bar the Commonwealth’s claims that a social media platform was designed to induce compulsive use by children, that it misled the public about its safety, and that it constituted a public nuisance.²⁰The court distinguished between a platform’s liability for third-party content and its liability for its own conduct—and ruled that, because the Commonwealth’s claims targeted the latter, Section 230 had nothing to say.²¹

These decisions signal that there are limits to the “editorial choices” argument that doomed the Backpage plaintiffs, and that courts can take Section 230 seriously without stretching it to undermine well-established principles of tort law.

Ultimately, Congress should amend Section 230.  In the meantime, however, courts should follow the lead of Lemmon, the social-media MDL, and Commonwealth v. Meta, and read the statute plainly, rather than expansively.  As so construed, Section 230 isn’t an alchemist.  It does not convert every design choice into a protected act of publishing.  Nor does it displace well-established tort principles whenever a defendant’s product happens.

The post Immunity Run Amok: Section 230 and the Distortion of Tort Law appeared first on Torts.

Anita Bernstein

In 2019 the phrase “a world designed for men” saw print when the Brazilian-English activist Caroline Criado Perez put it into the subtitle of a book. Criado Perez may not have been the first to notice the pattern of extraordinary unfairness documented in Invisible Women: Exposing Data Bias in a World Designed for Men but she wrote the most devastating report on the phenomenon I’ve ever seen, and I have been paying attention. Products Liability in a World Designed for Men by Melissa F. Wasserman connects this problem of gendered “who benefits? who pays?” with a careful, well-argued, and scientifically informed call for law reform.

The neutral-on-the-surface biases favoring men that Professor Wasserman examines in this article fit within design defect as a subset of products liability doctrine. The category may seem narrow. It’s not. Products Liability in a World Designed for Men takes 52 pages to document the issue it addresses, review the governing law, and offer recommendations. Limited space rather than any lack of urgent examples, I am sure, shortened what Professor Wasserman shares here.

That many products hurt women and fail to protect them from foreseeable injury (P.4) aligns with a larger pattern of disadvantage. Builders of homes mount kitchen cabinets too high for the gender that toils more in this room. Gamers’ headsets fit women poorly. Smartphones, already too big in most women’s hands, continue to get bigger. The problem expands for women who venture from their homes. If they work in healthcare or construction, they often receive personal protective equipment sized for men, paying a price in safety for that misfit. At the moment, starting to write this Jot in an airplane seat too low for my shorter-than-male torso and longer-than-male legs (see P.10), I feel strain in my quadriceps and lower back that I probably wouldn’t feel if I were a guy. (I’m in coach. First or business class would be no friendlier.) As far as I can tell—and again, I’m paying attention—the only instance of this problem that has won notice in public discourse is the overrepresentation of men in studies of drug safety and effectiveness  (see P.6 n.15). Efforts to bridge that gender gap have been scant.

Professor Wasserman starts with crash test dummies. Due in significant part to bias in safety studies, she writes, the same collision will hurt women in the same vehicle more often and more severely than men. (A 2025 book rates women’s increased odds of dying in a car crash at 17%, increased odds of nonfatal injury at 70%.) Replicas of the adult human body that guide crashworthiness look more like men than women. One size can’t fit all: “On average, women have less upper-body mass, shorter sitting heights, lower body weight, wider pelvic measurements, and shorter torsos” (P.10).

Man-like crash test dummies and the exclusion of women from pharmaceutical studies are significant sources of detriment, Professor Wasserman continues (Pp. 3-4). I’d add that although we who teach products liability would struggle to cover doctrine without our beloved cars and drugs, these two categories fill only a fraction of the gendered body count. Let’s stick with these two examples for a moment, however, as if the problem documented in Products Liability in a World Designed for Men extended only to everyday transport and medicines.

Women’s staying out of, and deprivation of access to, cars leaves them three quotidian alternatives. They can remain at home, a perilous locus. They can get around on public transit … which they’ll find dimly lit, supportive of sexual harassers, and typically built and priced to burden and punish women’s “trip chain” approach to travel, which features short errand-supporting increments more than the hub-and-spoke trips men favor. Or they can use sidewalks, which are often missing. Sidewalks when they’re present tend to thwart the strollers that women push, forcing female pedestrians into the road. A Stockholm study found another pertinent data point: Sidewalks that women use more than men get their snow cleared later and slower. As for drugs, doctors prescribe them and thus their dangers to women more than men. Women could insist on a prescriptions-free life but that resistance won’t save female patients from the worse care they get in emergency rooms and doctors’ offices.

Facing the data, Professor Wasserman turns to law for help. Gender-mindful federal safety regulation could make women safer (Pp. 11-13, 19-20) but was elusive even back when fairer and more competent leaders held the reins of American national government. Regulations, moreover, necessarily “operate at a high level of generality, establish minimum floors rather than optimal design targets, and cannot anticipate every design choice that allocates risk among users” (P.19). “The drawbacks of statutes and regulations suggest a residual role for tort law,” Professor Wasserman continues (id.).

Her review of the two leading tests for design defect used there, risk-utility and consumer expectations, steers Professor Wasserman to cautious optimism. Products Liability in a World Designed for Men finds in both tests a “doctrinal blind spot,” presumably correctable, “rather than a doctrinal constraint” (P.5). Consumer expectations could enlarge to accept what Professor Wasserman calls “subgroup analysis,” where “courts may consider whether the product fails to meet reasonable safety expectations for a substantial class of ordinary users” (Pp. 40-41). Numerous enough to count as “a substantial class,” women would qualify for consideration. The same turn can rescue risk-utility: “Rather than relying exclusively on aggregate utility, courts may evaluate whether the product’s utility falls below acceptable levels for a particular subgroup” (P.36).

Judges could follow Professor Wasserman’s lead. They just might. State courts applying state tort law doubtless offer a likelier venue for that progressive shift than any institution of our national government, where capital-f Federalist values and individuals are ascendant in the executive and judicial branches. But even the likelier venue doesn’t look to me very likely to deliver gender equity in product design. Professor Wasserman, ever intellectually honest, seems to stipulate that unless courts choose to care about women as a subgroup, her fix won’t work: “Under risk-utility analysis, higher benefits to men can offset serious risks to women; under the consumer expectations test, lower injury rates among men can render elevated risks to women legally invisible” (P.31).

And even if Products Liability in a World Designed for Men wins the reception it deserves, judges will not necessarily know what to do with design defect claims that point out a gender gap. Take the crash test dummy problem that centers this article. If manufacturers fire their current crew and bring in replacement dummies of “less upper-body mass, shorter sitting heights, lower body weight, wider pelvic measurements, and shorter torsos” (P.10, again), won’t men be worse off when they get into the resulting vehicles? They outnumber women there, which suggests that well-intentioned reform could lead to loss in the aggregate. Professor Wasserman recognizes the problem (Pp. 42-44). Regard for women as a subgroup applies pretty well to other gendered design possibilities—for example ones involving disparities in “hand size, grip strength, and force requirements” (P.13)—where manufacturers of products like surgical gloves do the right thing by offering “multiple sizes or configurations” (P.44). Because crashworthiness lacks a clear counterpart to the universal design ideal of disability law and policy, someone may have to suffer even when sellers like Volvo, whose leadership on whiplash has made the interior of vehicles safer for women while also benefitting men (Pp. 49-50), proceed as if all bodies matter.

That small misgiving noted, Products Liability in a World Designed for Men should be required reading for the American products liability community: Professor Wasserman’s analysis and recommendations are scientific in the best sense of the word. Readers with any level of interest (including none) in gender or feminism will find in this work an invigorating commitment to the truth.

The post Male Supremacy as a Products Liability Defect appeared first on Torts.

Sarah Swan

To truly understand all the nuances and textures in Verónica Rodríguez-Blanco’s rich argument in her recent book, Responsibility for Negligence in Ethics and Law: Aspiration, Perspective, and Civic Maturity, a reader would likely need full fluency with the methodology and language of moral and ethical philosophy: terms like akrasia, proleptic, and phenomenology dance with Hume, Aristotle, and Kant throughout the chapters. Yet the book has much to offer even the non-philosopher kings and queens of tort law. It takes on the perpetually vexing question of whether there is an actual moral justification (as opposed to a mere policy one) for negligence liability, and, through nine chapters of careful argumentation, offers its own distinct answer. Eschewing previous theories, Rodríguez-Blanco argues that negligence liability is justifiably grounded in a defendant’s failure to adopt a deliberative-aspirational perspective, when that failure has caused injury to another.

Negligence has long been a bugaboo for theories of responsibility. By definition, negligence assigns legal liability even to those whose mere inadvertence has caused injury. Whereas culpability is relatively easy to assign in the case of intentional torts— purposefully or knowingly causing injury is clearly blameworthy and deserving of deterrence and sanction—the basis for ascribing blame and liability to inadvertent actions and results is less clear, and theorists have spilled much ink offering various attempts at justifications—and refutations —of the practice.

One of the book’s many strengths is its painstakingly clear engagement with the various answers to this puzzle that have been previously proposed. Grappling with contemporary corrective justice and civil recourse theorists like John Goldberg, Ben Zipursky, Gregory Keating, John Gardner, Ernest Weinrib, and Arthur Ripstein, the book cogently articulates the sometimes subtle distinctions between these theories, and argues that all either have particular shortcomings in their explanations or instead simply skirt the question.

Through categorizing and critiquing these various proffered theories of negligence, Rodríguez-Blanco clears the path for her own intervention. She begins her argument with the premise that articulating a general theory of how people act and understand their own actions (which she calls “doings” and “making sense” of those doings) will illuminate the defective version of these processes that negligence law targets. (P. xxiii.) The early chapters are thus devoted to studying, in a “psychologically realistic” way, how exactly people act and understand their actions.

As with many valuable works of moral philosophy, vignettes perform much of the work. Here, Hot Dog, borrowed from Gregory Sher, recounts a woman, Alessandra, who leaves her dog in the car while picking up her children from a sports practice one day. After she returns to the car following a delay caused by her two children squabbling, she discovers the dog has died from heatstroke. Rodríguez-Blanco argues that like looking at Wittgenstein’s famous duck/rabbit picture, when she sees her dead dog, Alessandra is able to inhabit two perspectives simultaneously: she can at that moment “‘see’ both the forward-looking perspective of her action,” meaning “the deliberative and intentional action” of what she was trying to accomplish and why, at the precise time she was doing it (trying to give her children a healthy activity and trying to incorporate the dog in family life), as well as the “backward-looking perspective of her action (i.e. the lack of precaution and practical knowledge that produced the death of her dog).” (P. 13.) For Rodríguez-Blanco, Alessandra has not engaged in an omission or “a lapse owing to the absence of a mental state.” (P. 17.) Rather, she has engaged in a “defective exercise of practical reason.” (P. 17.) Alessandra has suffered what Rodríguez-Blanco terms an “akratic” problem: there has been “an uneven or defective integration of [Alessandra’s] character and intelligent thinking in acting.” (P. 25.) On learning of the dog’s death, Alessandra will experience regret and see “that she had, or perhaps still has, a deprived or lacking perspective” in her unduly narrow deliberations surrounding her actions. (P. 90.) If she can face this flaw, she can move forward into a deliberative-aspirational perspective and transform her thinking. She can learn from her error, and adapt better practices in the future, and through this move into a state of civil maturity.

For Rodríguez-Blanco, negligence law plays an important role in triggering such a transformation. She describes the law of negligence as proleptic, meaning that negligence law provides citizens with a way of thinking and manifesting values like “security and physical integrity” as they deliberate and engage in action across different circumstances. In judicial decisions like Donoghue v. Stevenson,¹ for example, “judges present the realizability of specific values by describing them from a forward-looking perspective, similar to that of a citizen,” as Lord Atkin does when he writes as though he is in the moment of placing a particular food product into the chain of commerce: “[a] manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer”² (P. 211.) Lord Atkin describes the complexity of the values at stake “as if he acted from the forward-looking perspective,” in order to model for citizens how they are to engage in deliberative aspirational reasoning. (P. 211.)

Rodríguez-Blanco also usefully argues that her version of grounding negligence can account for the problem of moral luck. Another vignette, this one picked up from Jeremy Waldron’s work Moments of Careless and Massive Loss and threading throughout much of the latter half of the book, illustrates the problem. In this vignette, two independent drivers (named Fate and Fortune) are each momentarily distracted by a sales sign in a store window, but the inattention of one driver (Fate) results in a collision that harms another roadway user, while the inattention of the other driver (Fortune) does not.

In keeping with many theorists who have gone before, Rodríguez-Blanco wrestles with the issue of moral luck that this scenario raises, but proposes a different solution. She argues that ethically and morally, Fate and Fortune have acted equally carelessly, but Fortune escapes negligence liability while Fate bears it because, if no tangible harm is produced by defective reasoning, negligence liability offers people “opportunities to learn” and progress toward better deliberative-aspirational processing in the future (which we will hopefully do out of alarm at experiencing such close calls). If, on the other hand, we find ourselves in Fate’s shoes, with a similar failure on the deliberative-aspirational front this time creating tangible harm to another, the lesson will be reinforced through legal sanctions.

This explanation for the difference in liability consequences arising from the same underlying wrongful conduct illustrates some of the implications of her arguments and the additional avenues of inquiry they generate. This is not a book that ends when you finish reading its last page, but one that evokes repeated engagement as it works to embed itself within already existing networks of knowledge and doctrine. For example, the negligence in the Fate and Fortune scenario can involve additional layers of negligence in interesting ways, as illustrated in the case of Thompson v. White, another instance where a distracted driver caused a collision and resulting injury.³ The source of the distraction in Thompson, however, was not advertised store bargains: instead it was ridiculously distracting clowns on the side of the road, which a gas station had employed to attract customers. The gas station was found potentially liable in negligence for distracting the driver, opening up questions surrounding the interactions between the deliberative-aspirational perspective of parties like the gas station, and anticipation of another person’s reactions or responses, akratic or not.

Additionally, the vignette surfaces deep questions about the interplay between public and private law. While negligence law requires a manifestation of harm to ground liability, leading to the difference in treatment of Fortunate and Fate, criminal law often punishes reckless conduct even absent such a result, through offenses like reckless endangerment and driving under the influence of alcohol. The role of public law in encouraging the deliberative-aspirational perspective, along with the application of this deliberative-aspirational perspective to corporate and public bodies, are further avenues of inquiry that attest to the richness of this intriguing new work, which will linger long after its covers have been closed.

The post An Aspirational Theory of Negligence Responsibility appeared first on Torts.

Anthony Sebok

The Pain Brokers by Prof. Elizabeth Burch (Georgia) describes the terrible treatment suffered by a group of women who had a defective surgical device implanted into their bodies. Unlike the more familiar stories about products liability involving DES or asbestos, The Pain Brokers focuses not on the wrongdoing that led to the defective products reaching the market, but on the wrongdoing that followed the discovery of the defendants’ liability. This is the story of the mass tort system being weaponized against plaintiffs.

The Pain Brokers is a work of general nonfiction which will appeal to various audiences. It takes the reader into a world that many may have already encountered in books like Michael Lewis’ Liars Poker and films like The Wolf of Wall Street. No one in the early 21st Century would be shocked to discover that lawsuits can be commodified and sold just like junk bonds or crypto currency. The book will appeal to readers who believe that America is dangerously obsessed with financialization, to the detriment of the larger society.

Another important audience is lawyers and academics with an interest in mass torts, consumer rights, and complex litigation. For us, Burch’s book is a bracing and disquieting wake-up call. Like A Civil Action, the book offers an accurate picture of the frustrations of the real world of lawyering that many legal professionals will recognize, in contrast to the simplistic picture of litigation offered by Hollywood.

The catalyst for The Pain Brokers is the so-called TVM litigation. The mesh contained in the TVM device was implanted in women’s abdomens to treat a variety of symptoms including pelvic organ prolapse and severe incontinence. In the early to mid-2000s it was an increasingly popular treatment option. By the early 2010s, problem with the device began to emerge. By 2019 the FDA banned its use. By 2021 this litigation spanned seven MDLs covering 100,000 cases.¹

Burch does not spend much time on the origins of TVM and the reason why it reached the market. Her concern is with how the serious wrong done to women by defendants was compounded by those who purported to help women seek redress from the original wrongdoers.

The Pain Brokers focuses on business owners and professionals who, starting around 2013, marketed legal, medical and financial services to women who were not yet represented and had plausible cases that could be funneled into one of the TVM MDLs. Burch chooses, as a narrative device, to focus on three women. The device serves a dual function. First, introducing real people provides a motive for the reader to work through lengthy and dry legal arguments and procedures. Second, it also addresses, albeit obliquely, the possible criticism that her argument is not based on data but on anecdote. One might ask, given the scale of the tort, why is it important to focus on a few victims and a handful of bad actors? The answer, Burch seems to be implying, is that, even if rare, the conduct that she reports in The Pain Brokers is unacceptable.

I am inclined to agree with Burch on this latter point. The problem with the professionals profiled in The Pain Brokers is not that they are unethical (and break the law), but that the “system” of professional regulation and the law itself seemed to play no role at all in slowing them down. In the end, as Burch observes, the worst actors suffered, at worst, corporate bankruptcy and the loss of expected business income, while the only actors who suffered any concrete legal or professional consequences were not the worst actors.

The scheme, as Burch portrays it, was put into motion by the uncontroversial fact that in the TVM litigation, the damages claimed on behalf of a plaintiff in the MDL varied with her post-injury experience. While every woman who received a TVM was wronged by receiving a defective product, some suffered more substantial legally compensable injuries than others. As a general matter, the largest provable economic damages were suffered by those for whom it was medically advisable to have the device removed. The problem, however, is that it was not medically advisable for many of these women to have the device removed.

The scheme, therefore, involved financially interested parties trying to locate women who had genuine claims against the TVM defendants, and inducing them to remove the device. For the scheme to work, these parties had to control the decision points between the initial contact with a woman who had a TVM claim and the decision to remove it and to sue the manufacturer.

Thus, a closed ecosystem was created. The investors created marketing companies which used both legal and arguably illegal means to inform potential clients that they might have a legal claim — what is conventionally known as “lead generation”. The legal means of lead generation are well known — mass advertisements with phone numbers connected to call centers. The illegal means of lead generation, specific (one hopes) to the TVM cases, involve surreptitious access by someone to medical records with confidential information about a patient’s TVM treatment that then led to phone calls that “informed” the potential client about a health risk arising from TVM devices. (To be clear, Burch never claims that these callers misrepresented the actual risk of a TVM, which are real.)

After confirming that the target of the call had a potential claim in the MDL and explaining the future health risks presented by the TVM device, the caller would ask the potential client if she would like to be put in touch with a lawyer. If the answer was affirmative, the lead generator would transfer the potential client to another operator (often in the same office) who, as an agent of a law firm, would arrange to have a retainer agreement sent electronically. Then the law office agent would ask if the client would like to be put in touch with a “medical concierge” who would arrange to have the client flown to Florida to have the device removed “if necessary” at no cost to the client (and separately financed by a litigation financier on a non-recourse basis). Sometimes the sequence would be reversed: after the lead generator made a live contact with a potential client, the woman would be asked if she wanted to be put in touch with the “medical concierge”, and afterwards, the medical concierge would ask whether the woman wanted to be put in touch with a lawyer.

For all this to work, the scheme had to rely on professionals who would preserve and maximize the value of the woman’s claim: a lawyer who would work with a doctor, and a doctor who would ratify the lawyer’s recommendation that the device should be removed (and who would also usually do the operation). Both the lawyers and doctors who populated this scheme were formally or informally compensated by the investors in a way that incentivized them to make professional judgments that aligned with the scheme’s goal of getting women to sue for the damages associated with the removal of the TVM device.

Burch is precise and unsparing in her presentation of the violation of professional ethics on the part of the lawyers and doctors in this scheme. Her focus is on the almost irresistible pressure placed on them by the investors who created the scheme — who were, it should be noted, neither lawyers nor doctors, but finance experts with backgrounds in marketing and Wall Street.

Still, I think it is worth pausing for a moment and asking why our existing system of professional regulation was so impotent. Let me touch on just one example.

Burch observes that, in addition to relying on the mere greed of the lawyers and doctors, the investors sought more durable tools to control whether the lawyer would pass the potential client onto the medical concierge. After all, lead generation — while controversial — is not a novel activity and it does not necessarily lead to the kind of behavior described in The Pain Brokers. Lawyers pay for leads; they are not paid by the lead generators. But the investors, who owned the lead generators and the medical concierge companies, needed to be able to control the lawyers, so that they would keep the scheme going. Therefore, the investors controlled the law firm that made initial contact with the potential clients. But that was (and still is) typically prohibited. How could they do that?

The answer, according to Burch, is that the investors took advantage of a loophole:

They could start their own law firm by exploiting a loophole available only in Washington DC. Back in 1991, the DC Bar Association defied conventional wisdom by tweaking its ethical rules to allow nonlawyers (like lobbyists) and lawyers to form law firms together and reap the collective profits. John [the investor] just needed an attorney with a DC Bar card . . . [so] Alpha Law . . . was born.

Alpha Law, says Burch, was a “Frankenfirm” which had no real physical presence in Washington D.C. It was controlled by non-lawyer partners who operated out of Florida and owned the lead generators that either advertised to or solicited potential clients on behalf of the firm. These same non-lawyer partners also owned the medical concierge whose name the law firm provided when the clients asked who could perform the removal of the device which the law firm informed them was defective.

It is difficult for anyone who knows anything about the law of lawyering — and D.C. Rule of Professional Conduct 5.4(b) in particular — to treat the claim that Alpha Law really fit into a loophole carelessly created by D.C. It was not. D.C.’s Rule 5.4(b) requires non-lawyer partners to “perform[] professional services which assist the organization in providing legal services to clients” (emphasis added). Commentary on Rule 5.4(b) has said frequently and unambiguously that passive financial investment does not satisfy the test for providing legal services.² But there is no evidence that the Florida investors assisted in the provision of legal services to a client of Alpha Law. (Operating a call center does not count.) Also, at least as Burch presents the facts, it is hard to see how Alpha Law was not violating Florida’s prohibition on the unauthorized practice of law, since, even if it was able to practice law in D.C. (which is doubtful), it was not practicing law in D.C., but in Florida, where its agents were speaking to its clients and providing legal advice.

This is but just one example of how the professionals in The Pain Brokers hurt their clients and patients by acting in violation of existing professional duties. Space prevents me from discussing Alpha Law’s other violations of the D.C. Rules or the violations of professional ethics on the part of the doctors to whom it referred its clients.

The real lesson of Burch’s wonderful book is not that we need new rules to deal with new and unconventional forms of financing, but that we need to enforce the rules we have. The fact that one of the principals of Alpha Law is still practicing law today is quite disturbing.

[Editor’s note: For another review of The Pain Brokeers, see Seth Endo, The Lost Story of the Pelvic Mesh Litigants, JOTWELL (April 15, 2026).]

The post The Shame of Mass Torts appeared first on Torts.

John C.P. Goldberg

At the outset of his very interesting article, The Liability Revolution That No One Saw Coming, Kenneth Abraham, one of our most distinguished scholars of tort and insurance law, posits an irony concerning predictions about law. As Holmes famously observed, law practice is all about anticipating judicial decisions. Yet, according to Abraham, lawyers – and adjacent actors including insurers and law professors – are not expected to predict, and have not predicted, broader shifts in the legal landscape, some of which have had huge significance.

The bulk of the article discusses three broad twentieth-century legal developments: (1) the rise of mass tort law; (2) the expansion of insurers’ coverage costs for liabilities generated by environmental and tort law; and (3) the conclusion of the expansionary phase of American accident law. According to Abraham, nobody in law saw these important developments coming.

Mass tort litigation involving widely dispersed injuries first emerged in the 1970s, in part as a delayed reaction to workers and consumers having, since mid-century, been increasingly exposed to toxins in workplaces and products. The state of the legal profession also mattered: until the late 1970s, the plaintiffs’ bar had yet to develop mechanisms through which they could launch and coordinate mass litigation. For these and other reasons, according to Abraham, the era of mass torts that commenced with DES and Agent Orange came without warning.

Although Abraham’s second example – the expansion of insurers’ indemnification obligations and high-stakes litigation over coverage issues – followed closely on the emergence of mass torts, its main driver, he says, was the enactment of environmental statutes, particularly CERCLA in 1980. It imposed sometimes massive clean-up costs on firms deemed responsible for toxic waste sites. Around 1960, insurers had made the fateful decision to revise standard language in commercial general liability (“CGL”) policies, which extended coverage beyond one-off accidents to harms incurred over time. This in turn undermined the protection provided by annual coverage ceilings. Because insurers did not predict the rise of these massive new liabilities, they found themselves saddled with coverage claims of unexpected magnitudes.

Abraham’s third example is the abrupt closure of the period in which courts and legislatures tended to expand the grounds of liability for accidents. It opened around 1915, marked by judicial decisions such as MacPherson v. Buick, and the legislative adoption of workers’ compensation schemes, and continued until about 1980. That was the year in which the California Supreme Court, in Sindell, adopted market share liability for DES cases. Although many saw Sindell as pointing to a new world of broad, probabilistic liability, it proved to be a swansong. Already in the air at the time, the mantra of “tort reform” would quickly come to dominate the landscape. According to Abraham, the closing of the liability frontier was another epochal shift that defied expectations as to where tort law was headed.

What explains these failures? For the most part, Abraham is not casting blame. Predictions require an evidentiary basis, and, in his view, the clues that would have enabled observers to anticipate the foregoing developments were meager. He also posits that lawyers by training tend to focus on concrete, realized problems rather than ill-defined possibilities – an inclination that is reinforced by their (perhaps undue) optimism about the ability of legal institutions to ameliorate problems after the fact. Also making prediction difficult is the fact that each of the developments discussed, though nationwide in impact, often resulted from decentralized, state-by-state developments.

The article concludes with some brief suggestions for improved prediction. Funding for predictive research comparable to the support once provided to economic analysis of the law might help. Mega-insurers could also conduct and share their own research. And insurers could issue policies that provide coverage on a multi-year rather than annual basis, which would force them to make predictions about near-term developments.

Abraham’s article raises many intriguing questions. It invites historians to consider further how lawyers, scholars and others were thinking about tort and insurance law in the 1960s and 70s. For social scientists and philosophers, it poses in a concrete setting the perennial issue of whether historical events are ‘caused’ by prior occurrences in a manner comparable to physical phenomena, such that they can be predicted. For those studying the legal profession and for members of the legal academy, the article prompts consideration of whether persons with legal training tend to suffer from certain forms of myopia.

Of course, any assessment of lawyers’ predictive skills will turn largely on a description of what is they are supposed to have predicted. It is one thing to suggest that they (and others) might do better at predicting specific doctrinal trends (e.g., the shift from contributory negligence to comparative fault). It is another to suggest that they should do better at predicting broader changes in which the law gets swept up, such as the Reagan Revolution. Why would anyone expect lawyers to be able to read the latter sort of tea leaves? Likewise, would anyone today fault insurers operating around 1960 – or 1990 – for failing to anticipate that climate change would produce massively destructive wildfires in California and elsewhere? In sum, a more precise account of the developments in question is crucial to an assessment of Abraham’s contentions.

In reverse order from Abraham’s presentation, one can start with the closing of the liability frontier. In what sense did it “close”? Yes, the push for no-fault fizzled, and damage caps and several-only liability for indivisible injuries are now commonplace. However, blockbuster personal injury litigation continues. And it has done so in part because some courts have identified new doctrinal bases for liability (public nuisance, anyone?). So perhaps those in the 1960s who supposed that plaintiff-friendly doctrines would continue to generate litigation and liability on a uniquely American scale were spot-on.

As for insurers, to what exactly were they blind? That Congress would impose some form of remedial liability for toxic waste sites? Or that it would adopt a very aggressive regime of retroactive, strict, joint-and-several liability? Or that remediation expenses would turn out to run into the tens of billions?

With respect to mass torts, even in 1960, there were signs pointing to at least certain iterations of that phenomenon. As Abraham notes, leading torts scholars had then largely coalesced around the idea that tort law’s primary function was to distribute losses and help the injured get back on their feet. While many posited the eventual replacement of accident law by compensation schemes, plaintiffs’ lawyers, aligned with liability insurers, were busy resisting top-down, ‘statist’ approaches to compensation, while also developing new schemes of cooperation to enable them to expand recoveries for larger sets of injury victims.¹ If one adds to this mix the experience of civil rights litigation, in which federal courts had functioned as institutional reformers, there may well have been a basis for envisioning that some judges would use the open-ended rules of modern civil procedure to enable aggregate litigations to function as event- or industry-specific compensation schemes.² Indeed, even before the 1966 amendments to the federal class action rule, one can find scholars considering whether “mass torts,” identified as such, could be appropriately handled through class actions.³

On the other hand, modern mass tort litigation in its precise present form was probably not something that anyone back in 1960 could have envisioned. Today, it carries with it a populist and quasi-punitive character that was alien to mid-century, tort-as-compensation conceptions.⁴ And increasingly, it does not take the form of administrative schemes run by managerial judges, but instead operates as a marketplace for lawyers to strike bargains operating under the faintest shadow of the law.⁵ The resulting patchwork of mega-judgments and settlements would, I think, surprise even keen mid-century observers of the tort system. So, again, the validity of Abraham’s thesis rests largely on a specification of what it is that was supposed to have been predicted.

One final thought: any assessment of lawyers’ predictive powers needs to take into account that their predictions are sometimes embedded in litigation strategies designed to make those predictions come true. In 1960, probably few would have imaged that the post-Erie Supreme Court would get involved in state tort law. Yet, as the Burger Court morphed into the Rehnquist Court – and with New York Times v. Sullivan having demonstrated that constitutional law could be used to skirt Erie – savvy lawyers predicted that there was a coalition of Justices prepared to conclude that aspects of tort law – such as punitive damages – were sufficiently ‘out of control’ that the Court needed to step in. This was not just prediction: these same lawyers helped form that coalition through a methodical litigation campaign. Here, as in other contexts, ‘cause lawyering’ involved sensing the zeitgeist, predicting where its winds might blow, and harnessing those winds to lead the law toward a particular destination.

As the foregoing discussion I hope demonstrates, Professor Abraham’s rich article is to be commended for raising these and other questions about the different senses in which “prophecies of what the courts will do in fact” can and should be central to legal analysis.

The post What Can The Reasonable Lawyer (and Law Professor) Foresee? appeared first on Torts.

Ronen Avraham

What happens when a self-driving car kills someone and there is no human driver to blame, no detailed public regulation to point to, and a jury that has never heard of ISO 26262 or UL 4600? Who decides what “reasonable care” means when safety choices are embedded in code, sensors, and validation protocols rather than in a driver’s split-second decision?

In his insightful paper Swords and Shields, Gary Marchant argues that in this world, private technical standards will quietly become the real baseline for tort law. Standards written by SAE, ISO, UL, IEEE, and other standard-setting organizations—largely unfamiliar to most people—will serve as shields for autonomous-vehicle (AV) manufacturers who comply with them, and as swords for plaintiffs when manufacturers ignore them.

The core claim is simple but powerful: compliance with well-recognized AV standards should be treated as a partial shield against negligence and especially punitive damages, while noncompliance should be a partial sword suggesting unreasonable conduct.

The pacing problem and the AV standards ecosystem
Marchant begins with the “pacing problem”: technology moves faster than government. AV technology is advancing rapidly and detailed public regulation is thin and, in the case of NHTSA, often deliberately hands-off. As Marchant describes, NHTSA’s central concern is not only lack of information and expertise, but the fear of prematurely locking in design choices and limiting innovation in a field that might ultimately reduce accidents dramatically. That mix of uncertainty and capacity constraints, and perhaps even anxiety about being blamed for stifling life-saving technology helps explain why the agency has preferred flexible guidance and voluntary frameworks over detailed, binding AV safety rules.

Into this vacuum step standard-setting organizations. Historically, private standards handled dull but important things: thread sizes, plug shapes, inter-operability. Today, they increasingly handle governance: risk management, safety, data security, and even aspects of AI ethics.

In the AV context, Marchant describes a dense and growing ecosystem of standards, including:

• Functional safety standards (such as ISO 26262), focused on preventing catastrophic outcomes from random hardware and software failures.
• Safety of the intended function (SOTIF) standards (such as ISO 21448), dealing with hazards arising even when systems work “as designed.”
• System-level AV standards (such as UL 4600), covering how to design, validate, document, and argue for the safety of autonomous products.

These standards are not mere definitions. They prescribe how AV manufacturers should do hazard analysis, simulation and real-world testing, monitoring, and updates. If courts are going to say anything meaningful about whether an AV design was “reasonable,” these standards are the obvious place to start.

Swords and shields
Marchant’s illuminating contribution is to explain how these standards should function in tort litigation.

On the shield side, he argues that compliance with recognized AV safety standards should weigh heavily against findings of negligence, design defect, or punitive damages. The argument is intuitive: if a manufacturer has followed a serious, technically sophisticated, multi-stakeholder safety framework, it is hard to say it acted with the kind of disregard that punitive damages are supposed to punish.

On the sword side, noncompliance with these standards should count as strong evidence for negligence or defect. As AV standards become the de facto safety baseline for responsible actors, ignoring them without a very good reason looks increasingly like a failure to use reasonable care.

Crucially, for Marchant both sword and shield are partial, not absolute. Compliance is presumptive but rebuttable evidence of due care; noncompliance is presumptive but rebuttable evidence of lack of due care. A jury can still find a compliant manufacturer negligent in an extreme case (for example, if a standard is clearly outdated or reflective only of industry capture), and it can still find a noncompliant manufacturer non-negligent if it has adopted an even better, more up-to-date safety regime. This way of applying the standards helps incentivizing conformance with them by AV manufacturers.

The treatment of punitive damages is sharper. Marchant thinks compliance with AV standards should almost always block punitive damages, while serious noncompliance should be a strong basis for them. In other words, standards play a special role in sorting ordinary negligence from conduct that deserves moral condemnation and extra deterrence.

Private standards as proto-regulation: a comparison
Marchant’s story fits into a broader literature on using private actors to structure tort duties. In earlier work on Private Regulation,¹ I proposed a “Private Regulation Regime” (PRR) in medical malpractice. There, private expert entities would write evidence-based clinical guidelines under a statutory framework. If physicians complied with these guidelines, they would enjoy an absolute safe harbor from malpractice liability; if they deviated, the guidelines would serve as a kind of “blunt sword” for plaintiffs.

Comparing Marchant’s proposal with that kind of private regulation regime helps to clarify what Swords and Shields is, and what it is not.

The first contrast is the institutional ambition of the proposals. The PRR is a full-scale architecture: the law defines who the private regulators are, how they are funded, how they internalize the social costs of too-risky or too-conservative guidelines, how their guidelines are evaluated ex ante from a social-welfare perspective, how intellectual-property rights are handled, and how guideline writers themselves are held liable if their standards are inefficiently dangerous. In return, compliant physicians get complete immunity from malpractice suits.

Marchant does not go that far. He works with the standard-setting institutions we already have without trying to re-engineer their incentives from the ground up. Standards are treated as sophisticated custom, not as the output of a dedicated private regulator charged by statute with optimizing social welfare. That institutional modesty is part of the reason he stops at partial swords and shields.

Second, who is being protected? The PRR addresses individual physicians facing enormous pressure to practice defensive medicine. The safe harbor is partly about liberating them from ex post second-guessing that overweighs bad outcomes and ignores the beneficiaries of cost-effective care. Marchant focuses on AV manufacturers: large, sophisticated firms already accustomed to complex regulation and liability exposure. Giving them full immunity merely for complying with self-influenced standards would raise more serious under-deterrence and capture concerns.

The third consideration is whether the system is designed ex post or ex ante. A central move in private regulation is to design the guidelines themselves under an explicit ex ante framework: guideline writers must internalize the costs of harm and of wasteful safety measures before accidents occur. Crucially, the PRR’s strict ex ante focus is designed to eliminate cognitive biases inherent in the tort system (e.g., Hindsight Bias and Identifiable-Other Effect) by holding the guideline writer strictly liable. Marchant’s approach uses ex post standards merely to moderate these biases, making it a more cautious step than a full private regulation regime.

The PRR further enforces systematic knowledge production by explicitly denying the guideline writer the “State of the Art Defense,” thereby forcing the continuous scientific updating of standards

In Swords and Shields, Marchant takes the standards mostly as given and asks: Given what these institutions are already doing, how should courts treat their work when AV cases arise? His answer is doctrinal and incremental rather than systemic and reconstructive.

Seen this way, Swords and Shields can be read as a “proto-PRR” in the AV context, a first step in treating private standards as quasi-regulatory baselines for tort law, without yet building the complete private regulation machinery around them.

The worries Marchant takes seriously
Marchant does not pretend that outsourcing so much to private standards is costless. He flags several important concerns.

• Capture. Standard-setting processes are formally open and multi-stakeholder, but in practice industry often dominates. If AV makers push for weak standards and then claim a shield by complying with them, courts will be asked to ratify captured norms. Marchant’s helpful answer is that the sword-and-shield effect should depend on the procedural quality and perceived legitimacy of a standard, not just its existence.
• Fragmentation. AVs face multiple overlapping standards, which are sometimes inconsistent. Which one is the baseline? Marchant suggests looking at industry uptake, credibility of the SSO, and fit with the technology at issue. The more a standard looks like a real, widely accepted baseline, the more weight it should get.
• Partial compliance. Manufacturers may comply with some standards and not others, or with some parts of a standard and not others. This will make AV litigation messy, but not unmanageable. Here, too, the sword and shield are partial: the pattern of compliance becomes grist for experts and juries.
• Access and copyright. Because many standards are paywalled and copyrighted, simply putting the standard in front of a jury can be surprisingly difficult. Marchant notes that courts and legislatures may have to rely on fair-use doctrines, compulsory licensing, or other solutions if standards are to be used routinely in litigation.

Marchant gives us an important starting place for a conversation about standards governing new technologies. Consider the following questions: First, once courts treat AV standards as central evidence of reasonableness and of entitlement (or not) to punitive damages, the design of the standard-setting process itself becomes crucial. Marchant hints at this but does not fully explore it. If private standards are going to carry this much legal weight, we may eventually need to think about borrowing some of the tools from more ambitious private regulation proposals: ex ante evaluation and perhaps even some form of liability for standard-setters who get it badly wrong.

Second, AVs are likely just the beginning. Any domain with rapid technological change, thin public regulation, and dense private standards, such as medical AI, robotics, and some areas of fintech, will be tempted to adopt the “partial sword, partial shield” approach Marchant sketches. The hard question, which this paper invites rather than fully answers, is where to draw the line between incremental doctrinal adaptation and full-blown private regulation regimes.

At the end of the day, Swords and Shields offers a clear, thoughtful account of how courts should use private standards to decide liability for autonomous vehicles. It shows how tort law can, at least for now, ride on the back of private technical expertise without formally abandoning negligence or products liability. Whether future work will push toward more structured private regulation or stay with Marchant’s more modest swords and shields, his article richly deserves a reading.

The post Private Standards as Swords and Shields for Autonomous Vehicles appeared first on Torts.

Gregory Keating

In an illuminating article, A Novel Tort Duty for Platforms that Intermediately Produce Real World User Interactions, Jordan Wallace-Wolf proposes that we recognize that a distinctive duty of care should attach to internet platforms that “cultivate” markets. Ridesharing Apps— Uber and Lyft— are the paradigm platforms that he has in mind. Professor Wallace-Wolf’s perceptive proposal warrants careful consideration. It puts its finger on properties of the interactions that platforms promote that courts and other commentators have not identified as clearly. And its proposed liability rule responds to those properties in an attractive, justified way.

Internet platforms puzzle courts and commentators, and for good reason. For one thing, internet platforms come in myriad forms. Zoom enables people who are not in the same room to speak face-to-face, but the fact that it uses the internet to connect people who might otherwise speak by phone does not appear to present any significant or special legal issues. The internet infrastructure enables interactions that would not otherwise be possible— and is the medium through which those interactions take place— but Zoom’s enabling of the interaction does not, by itself, give rise to any distinctive responsibility for the content or the course of the interaction. No one would think that Zoom bears responsibility for a bank heist merely because the criminals involved happened to plot the heist over a Zoom connection.

But platforms like Uber and Lyft are different: they don’t just connect users, they create markets. And it is not clear what we should make of this, if anything, legally speaking. Perhaps these platforms are no more responsible for the real-world interactions they enable than Zoom is for the conversations that people hold by accessing its technology. Perhaps, in both cases, the Internet enables a familiar phenomenon, namely, a two-sided market. And perhaps there is nothing legally special about internet-enabled two-sided legal markets. Just as Visa’s business is connecting retailers and sellers, and just as Visa benefits from being used by more shoppers and more sellers, perhaps Uber and Lyft merely connect people who need rides with people who need riders. (P. 454.)

But perhaps not. Courts have found the matter anything but obvious. Multiple legal frameworks might be brought to bear on the internet platforms of particular interest to Professor Wallace-Wolf, and many of them have been. Uber and Lyft are Apps. Like other Apps, they have been treated as products. Professor Wallace-Wolf reminds us of Brookes v. Lyft, a Florida decision classifying Lyft as a product and entertaining the possibility that it is a defective one because it requires drivers to take their eyes of the road. (P. 442.) Another court is in the process of considering deploying product liability law to specify rights and responsibilities with respect to sexual assaults. Alternatively, assaults and other torts arising during transport might be analyzed through the lenses of vicarious liability. Perhaps Uber drivers are agents (employees, or participants in a joint enterprise, or joint venturers) of Uber and Uber is therefore responsible for the torts they commit in the course of ferrying passengers about. If we balk at assimilating Rideshare Apps to products because rides fit more readily into the category of “services,” we might characterize them as a new kind of “profession,” or as a new form of common carrier. Rideshare Apps resemble utilities in their apparent tendency towards monopoly, and they provide the very service that the most canonical of common carriers provide. And “common carrier” liability is a longstanding and legally rich framework. Last, but surely not least, we might bring general negligence liability to bear and ask if the distinctive character of a Ridesharing App brings a duty of care in tow and, if so, what the contours and scope of the resulting duty are.

All of these categorizations are plausible. All of them have been explored by commentators, and most of them have been explored by courts. Each of them might be appropriate in some circumstances. Professor Wallace-Wolf does a deft job of describing them and showing how each picks up on particular salient properties of Rideshare Apps. His distinctive contribution, however, is to put another possibility on the table. A Novel Tort Duty for Platforms takes general negligence analysis as its starting point, pinpointing the faults in the prevailing applications of general negligence law and, taking indirect inspiration from Bob Rabin’s felicitous idea of “enabling torts,” proposes that we respond to the special properties of Rideshare Apps by recognizing a duty of care with respect to the social interactions that those Apps sponsor.

When courts bring general duty analysis to bear, they focus on the relationships of the Apps to one party to the interaction. If the alleged wrongdoing is an assault on the customer, courts focus on the relation of App to customer. If an assault on the driver is at issue, courts focus on the relation of App to driver. This eclipses the distinctive way in which Rideshare Apps differ from standard two-party markets: Rideshare Apps create the market for the interactions that they broker. Visa does not. The duty of care that responds to this special property of Rideshare Apps is a duty to sustain the integrity of the interaction—to underwrite the trust that is essential to its existence. This is, to be sure, a vague idea. Wallace-Wolf writes of “intermediating” the relationship. (Pp. 456-60.) But these vague phrases orient us in the right way and stimulate us to think about responsibility in a fruitful way.

On the one hand, Wallace-Wolf’s approach draws on the existing resources of tort law. On the other hand, it doesn’t force Rideshare Apps into the Procrustean bed of a preexisting category that can be made to fit them only with a bit of torturing. Instead, it uses the existing lenses of the law to bring into focus and respond to a central property of Ridesharing Apps that makes them distinctive but legally elusive. I would amend Wallace-Wolf’s idea of “intermediation” a bit and say that the Apps both constitute the market for the interactions at issue, and sponsor, or underwrite, the ensuing relationships. By dialing in the possibility of a duty to sustain the interactions that they sponsor, Professor Wallace-Wolf’s A Novel Duty for Platforms has significantly advanced our thinking about a novel and important domain of tort liability, and done us all a great service.

The post Sponsoring Torts: Reconceptualizing Platform Liability appeared first on Torts.