Yearly Archives: 2016

The Man, The Torts Legend

Feb 23, 2016 Ellen BublickAdd a Comment

United States courts cited Dean Prosser’s hornbook on Torts more than 200 times over the course of 2015.  In that year, courts also cited Dean Prosser’s Restatement (Second) of Torts more a thousand times. Dean Prosser’s work shaped the law of Torts in the United States and continues to do so today, forty-three years after his death. Despite Prosser’s out-sized influence in the field, surprisingly few articles have been written about this founder of contemporary Tort law.

Two recent articles begin to fill that gap. Ken Abraham and Ted White tackle the subject of Prosser’s work and influence. Meanwhile, Chris Robinette uncovers the private correspondence of the man behind the law. Both the Abraham and White article and the Robinette article are insightful, a pleasure to read, and ultimately leave the reader ready to purchase the next chapter (Robinette reveals that part two is in the works).

Looking at Prosser from a biographical perspective, Abraham and White begin with an outline of Prosser’s career. While much of that background is generally known—from Prosser’s early teaching at Minnesota to his Deanship at Berkeley—there are surprises—that Prosser dropped out of Harvard Law School after his first year, that he began writing his hornbook in only his second year of Torts teaching, that Warren Seavey corresponded with Prosser “almost weekly” for the four-year period of the hornbook’s writing, that Prosser himself became something of a “laughingstock” at Harvard after a student filed suit against him for Prosser’s classroom demonstration of converting the student’s $5 bill, that Prosser’s “practical jokes” included delivering hearses to the homes of acquaintances, and that Prosser disapproved of faculty who refused to sign a loyalty oath.

After an overview of Prosser’s history, Abraham and White examine a seminal moment in Prosser’s career—the publication of Prosser’s Handbook on Torts, in 1941, to universal acclaim. They illustrate Prosser’s rhetorical style through closer examination of his handling of two particular torts, intentional infliction of emotional distress and invasion of privacy. Though they give credit to Prosser’s powerful and engaging writing, they ultimately conclude that his hornbook “was influential precisely because…it was somewhat deceptive.” (p. 64.) They contend that Prosser’s footnote-laden work, particularly in the two torts they examine, was not the synthesis of existing cases that readers of that time would have expected. Instead, although Prosser’s citations provided a “mantle of authoritativeness,” had readers “actually looked more carefully” they would have been dissatisfied with Prosser’s generalized propositions, which were largely unsupported by the authorities he invoked in their support. (p. 64.)

Meanwhile, Professor Robinette reexamines Prosser not from his published work, but from two collections of Prosser’s private letters—one set given by Prosser’s son to the Berkeley Law Center, and another given to the University of Minnesota Law Library by a person who purchased them at a yard sale. From these letters, Robinette pieces together key facts about Prosser’s childhood, education, and the start of his career. From Robinette’s work, we learn about Prosser’s father, a well-educated lawyer who ran an industrial institute and was known as the “Father of Vocational Education.” (p. 5.) We also learn about Prosser’s mother, who spent evenings reading aloud to her son and was proud of the way he could “sling the King’s English.” (p. 5.) The article discusses Prosser’s undergraduate education at Harvard, his enlistment during World War I, his 1L year at Harvard, his work as a sales manager in Minneapolis, his schooling at the University of Minnesota Law School, his work at a Minneapolis law firm, his time on the Minnesota faculty, and then his year on the faculty at Harvard.

Robinette’s examination reveals new information that shows Prosser as less deity than a man of his place and time. Prosser’s work “makes liberal use of ethnic references.” (p. 4.) For example, he’s glad not to spend Christmas in Germany “among the Heimies,” and a key feature of his law club is that it is “not Hebrew.” (p. 6.) Concerning honesty, when working as Secretary to the Commercial Attaché in Brussels, Prosser makes plans to smuggle some personal gifts via government supply truck and states that he hasn’t “any conscience about beating the government out of money.” (p. 12.) Moreover, readers (and Professor Robinette), are left to wonder why Prosser did not return for a second year of a play writing program at Harvard, or of Harvard Law School. Might he have been among the 1/2 of play writing students or 1/3 of law students who were not permitted to return?

That both the Abraham and White article and the Robinette article suggest there may have been a mere man behind the curtain of the great and powerful Torts scholar, does not ultimately detract from the professional accomplishments to which Prosser lays abundant claim.  As all acknowledge, his fluid use of language makes him one of the most readable scholars in the field.  His attention to detail— and to blending decided cases with broadly-articulated policy interests— warrants the full attention that courts have paid him. And his controlling influence in the field even today reveals his keen political acumen. Perhaps it is true, as Abraham and White have argued, that Prosser wrote in a time when Restatements and treatises were thought only to synthesize existing law and not to create it, but it is difficult to imagine that all of Prosser’s readers were either too lazy or obtuse to realize the ruse. Instead, perhaps Abraham and White underestimate the latitude Prosser’s readers gave him to shape the law beyond narrow descriptive boundaries. Indeed, the wide-spread acceptance of Prosser’s work suggests that, even after the realist moment, a broad and intelligent audience might accept normative development of doctrinal common law rules as long as the craftsman is skillful, modest in policy approach, and reflects well the values of the time.

Writing as only brilliant academics at elite institutions can, Abraham and White suggest that Prosser “certainly is not revered today in the way that he was in his own time.” (p. 2.) What they mean of course, is that Prosser is not revered by elite academics looking for interdisciplinary policy analysis served straight up, rather than shrouded in the traditional common law language of case law and doctrines.  But as they lament, in that rarefied academic world, it is more difficult to show any broad scholarly influence at all. Rather than consigning Prosser to the dust bin of historical relics, perhaps Prosser can be seen as an exemplar for current scholars to build impact—by using both instrumentalist and formalist tools. While it may be difficult to trace the impact of contemporary academics devoted to interdisciplinary policy analysis, it is not difficult to admire the enduring edifice of Prosser’s work—just count this year’s judicial citations.

Stealth Ways to Keep Tort Cases from African-American Juries

Jan 27, 2016 Catherine SharkeyAdd a Comment

What do Alabama, Maryland, North Carolina, Virginia, and Washington D.C. have in common? Answer: They all apply the doctrine of contributory negligence to tort cases. Indeed, they are the last five contributory negligence outposts; the rest of the United States has long since moved on to comparative fault regimes of one form or another.

They are, moreover, all located in the South. And according to Donald Gifford and Brian Jones, this is no coincidence.

In their provocative article, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law, Gifford and Jones argue that certain states cling to contributory negligence and other “anti-plaintiff” tort doctrines to prevent cases from being decided by juries. The most worrisome aspect of their thesis is that this concerted effort to insulate cases from juries is most pronounced in Southern states whose major urban centers include significant African-American populations.

The article’s novel contribution to the literature is its distinct focus on the role of substantive tort law, as opposed to procedural issues like jury selection or political questions like judicial elections, in keeping cases from juries and ensuring that cases are decided (translation: dismissed) by judges. In addition to the doctrine of contributory negligence, the authors, having consulted with twelve tort law “experts” (judges, plaintiffs’ lawyers, and defendants’ lawyers), identify the following doctrines and standards as the most formidable barriers to jury access: laws that limit or block a property owner’s or landlord’s potential exposure in premises liability cases (such as laws immunizing property owners from anyone other than invitees), laws limiting the liability of charitable institutions (including hospitals), and standards governing the admissibility of expert testimony. Each of these rules facilitates pretrial dismissal as a matter of law on motions for summary judgment, or during trial but before submission to the jury, on motions for a directed verdict.

The authors devised an empirical test to measure how their dependent variable—a construct they term a particular state’s “jury access denial index,” or JADI (a weighted average, based upon their designated tort experts’ view of the relative significance of each of the five restrictive tort doctrines)—is affected by the following independent variables: a high degree of income inequality in the state’s largest cities, high percentages of African-Americans in a state’s largest cities, a state’s history as part of the traditional, slaveholding South, and a state’s political ideology. Their sample includes seventeen states, eight of which are part of the “traditional South,” including four of the contributory negligence stalwarts.

The authors’ powerful conclusion is that: “Even in the twenty-first century, supreme courts in a number of states with substantial percentages of African Americans in their largest cities, particularly those in the South, continue to follow outmoded doctrines of tort law that make it more difficult for personal injury plaintiffs to have their cases decided by juries.” (p. 41.)  A surprising outcome of their test is that a state’s political leanings have little to no effect on a state’s JADI (and, as they most unexpectedly determined, if anything, states with liberal leanings actually had a higher JADI).  They accordingly conclude that “it is race and region of the country, not political ideology that primarily affect a state’s JADI.” (p. 41.)

A key prong of the authors’ thesis is that the drive to prevent jury decision making where those juries are most likely to be comprised of African Americans is the unshakeable perception that such juries will rule in a plaintiff’s favor. In a section that deftly weaves together history, literature, and some colorful quotes from contemporary practitioners, the authors show that it is generally assumed that such jurors will rule against a defendant out of empathy for a plaintiff who, like themselves, has been harmed, marginalized or, in the words of one trial lawyer, “hammered all their lives” (p. 16.)

But according to certain scholars, the perception is false. Issa Kohler-Hausmann, a law and sociology scholar, has determined that “there is no statistically significant correlation between the chance of prevailing on the liability issue and any of the following three variables: the income inequality of the local population from which the jury is drawn, the percentage of the population living below the poverty line, and the percentage of persons of color.” (p. 19.) The authors cite work by Eric Helland and Alexander Tabarrok showing that “race and poverty [do] act . . . to increase the size of jury awards,” but do not affect “plaintiff success rates” in a statistically significant way. The authors do not try to explain why the disconnect between perception and actual impact persists. And, in any case, the truth or falsity of the perception is ultimately, for these authors’ purposes, beside the point:

Our objective is not to choose sides in this debate, mostly between judges and practitioners on one side and scholars on the other, as to whether the racial or socioeconomic characteristics of the juror population affected trial outcomes. Instead, our hypothesis is that the perceptions of judges and legislators that juries with higher percentages of African-American or low-income jurors in a state’s largest cities will lead them to continue to follow traditional tort doctrines that keep plaintiffs from reaching juries. (p. 20.)

The authors readily recognize the unlikelihood of obtaining direct proof in support of their thesis (“[J]ustices are not going to admit that they continue to follow doctrines in order to keep juries with substantial numbers of African-American or low-income jurors from deciding personal injury cases”), and, accordingly, they explain that they can only prove “strong correlations between a state’s substantive law that makes it difficult for personal injury plaintiffs to have their cases decided by the jury and the factors of race and being a part of the South.” (p. 41)  Their presentation of these correlations is masterful, and one in particular stands out: their description of certain states’ failure to adopt more liberal liability regimes viewed against the legal historical backdrop of jury selection.

The authors detail our country’s distressing history of measures, particularly “harsh, widespread and sustained” in the South (p. 23), designed to keep African Americans from serving on juries. Southern states were savvy in trying to avoid the Supreme Court’s holding in Strauder v. West Virginia (1879) that a West Virginia statute barring African Americans for juries violated the Equal Protection Clause. They required, for instance, that African Americans’ names be printed on different color paper and thus were immediately identifiable when names were picked out of a pile. They devised mandatory character prerequisites for jurors to meet and that were readily “interpreted to exclude African Americans” (p. 23) such as the requirement to be of “good intelligence, fair character, and sound judgment.” (p. 23.) As these and other efforts were stricken by such cases as Norris v. Alabama (1935), states became more creative in devising other means of exclusion.   But when, in the wake of Batson v. Kentucky (1986), Powers v. Ohio (1991), and, most relevant, Edmonson v. Leesville Concrete Co. (1991) (holding that a party in civil litigation was entitled to a jury trial where his or her adversary had not excluded jurors on the basis of race), overt exclusion of potential jurors for race-based reasons became all but impossible, states’ rigid adherence to retrograde tort laws filled the bill:

Edmonson, of course, was decided after Southern courts disproportionately failed to follow those courts elsewhere in the country that had already [approximately from 1965-1985] adopted substantive principles governing tort cases that made it easier for plaintiffs to have their cases heard by the jury. After Edmonson opened the doors to substantially greater African-American participation on Southern juries, principles of outmoded substantive tort law became principal bulwarks to prevent personal injury plaintiffs from having their cases heard by the jury. (p. 25.)

The authors’ keen insight is to juxtapose and, in so doing, shine a bright light on the contrast between, this chronology of gradual enlightenment and inclusion with the legislative and jurisprudential stasis in those states that continue to adhere to anti-plaintiff regimes. In so doing, they make a persuasive case that the stubborn clinging to these restrictive rules is an end run around rules requiring that African Americans be put on juries in the first place.

The authors should be commended for this article and the deep thinking (and, perhaps, the legislative or policy changes) it should prompt. The authors do, in fact, hope to effect policy changes. Indeed, Giffords’ policy-driven agenda rounds out this piece in an important way; standing alone, the article’s empirical study only goes so far in pointing out troubling correlations, and, as they acknowledge, does not reveal that the states in their empirical study have retained the tort doctrines at issue because they seek to keep cases from being decided by African-American jurors.  If anything, the article left me wanting to know more about what they had addressed. For instance, the authors could have clarified whether the “anti-plaintiff” legal rules at issue in their study were statutory or instead common law principles. This, in turn, would clarify if it is legislators or judges who are primarily responsible for perpetuating them. Moreover, to the extent that any of the rules at issue are statutory, the article would benefit from a discussion of any relevant legislative history or, more generally, contemporaneous lobbying or debates (either within the legislature or society at large) about the prospect of adopting a comparative fault regime, or laws abrogating premises liability immunities and the like. I would also have liked to know more about the judges in the state courts under scrutiny. The authors portray these judges as uniformly beholden to white, moneyed, establishment interests, but I wondered if there were any exceptions and, if so, how those exceptions bore on the issues under study. At a minimum, it would be good to know the percentage of African-American judges and state legislators at the relevant time of adoption of a so-called anti-plaintiff tort doctrine by common law or statute, respectively. Lastly, I wondered whether the authors, in the course of researching and writing this article, encountered any states that bore characteristics of those with a high JADI (e.g., large African-American populations in their major cities), yet had abrogated contributory negligence and, if so, how the authors might explain why such a state nonetheless plotted a different course.

Might it be that state-by-state variation with respect to various tort reform measures, such as caps on damages, or overall jury trial rates in tort cases could be explained, in part, by Gifford and Jones’ provocative thesis? They should be thanked for unlocking so many doors for future study.