By Alyssa Greenstein
As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Torts & Compensation Systems to discuss the state of the field and upcoming section initiatives.
The Section on Torts & Compensation Systems promotes and stimulates ideas, interest, and activities, and the communication and discussion thereof, among those concerned with the teaching, administration, improvement, and reformation of the law relating to torts and compensation systems.
Chair: Mary J. Davis, University of Kentucky, J. David Rosenberg College of Law
Chair-Elect: Timothy D. Lytton, Georgia State University College of Law
Mary J. Davis: When I began teaching torts in 1991, I had a wonderful mentor from the faculty at my law school. I knew that I wanted to be active in the world of tort law and tort scholarship. My mentor was very encouraging and suggested the AALS Section would be very valuable. There are no lawyers in my family, so I was trying to soak in everything I possibly could about what it was like to be in academia. It made sense to me to be engaged with a section of people who are interested in the same subject. In the 1990s and early 2000s, tort theory scholarship blossomed, so it was an exciting time to be active in the Section, particularly in my area of focus, which is products liability. I have continued to be involved with the Section because the programming is so rich for scholarly purposes.
A former faculty colleague of mine at the University of Kentucky Law became active in the Section’s leadership more recently and recommended that I get involved. I joined leadership of the Section later in my career, which has been really nice because I know a wide variety of people across the tort spectrum.
Timothy D. Lytton: I, too, started teaching torts in 1991. I got interested in torts because there was a growing trend emerging out of the products liability revolution that harnessed private law–tort litigation in particular–as a way to advance public policy on health and safety issues like tobacco-related illness and gun violence. I was attracted to the idea that private lawsuits might be a way to improve public policy. Scholarship over the last 20 or 30 years has challenged the traditional distinction between private lawsuits and public policy, which has made it an exciting time to study torts.
During the past 30 years, there have been a lot of senior scholars who mentored me along the way. I thought Section leadership would be an effective way to advance the careers of younger academics so that there will be another generation of people whose primary area of teaching and scholarship is torts.
MJD: We have a board of seven members, including a chair and a vice chair. We have a secretary, who is Nora Engstrom (Stanford Law School) this year. We have a treasurer, who is Elizabeth Weeks (University of Georgia Law). The structure is fairly lockstep. The treasurer is responsible for making sure that we have a plaque for our Prosser Award winner, for example. The secretary takes care of making sure the newsletter is prepared. The vice chair typically doesn’t have a formal role, although Tim has been really active, and such a welcome participant in assisting with planning the annual meeting session. He has been creating a good model for the vice-chair role going forward. The chair typically identifies the nature of the Annual Meeting session topic, but there is also always input from other Section officers. I will roll off and become a member of the executive committee as past president, and Tim will become chair.
TDL: The treasurer also runs the nomination process for the Prosser Award. The secretary oversees the newsletter. Those are really the two big activities, other than the Annual Meeting program, that we prepare for over the course of the year.
MJD: In prior years, chairs have suggested other kinds of initiatives for the Section to engage in. For example, we had a chair a few years ago who was really interested in trying to enhance formal mentoring for junior scholars. As chair, I have been thinking about this same initiative. We are always trying to think of way to increase participation and connection among the Section’s members.
TDL: In some ways, the Section is not particularly active during the year because there is a robust infrastructure of conversation about torts outside of the Section that keeps us all connected. For example, there is an active torts professor blog that has new content every day. There are also at least two listservs specifically for tort scholars. On JOTWELL, there is a regular review of the latest scholarship, hot topics, and articles in torts. Because torts is such a large field and has so many different subspecialties, there are a lot of tort-focused conferences and symposia each year.
MJD: I was approached by the chair of the Section on Environmental Law and the chair of the Section on Natural Resources and Energy Law to do a joint program on climate change litigation. All of us are extremely interested in engaging on such a salient topic. The title of the program is “The Rising Tide of Climate Torts.” We discussed other programming, but this seemed to be the one that had the most energy. We think this topic will draw a very robust crowd. People have so many different lenses through which to view this topic, so we’re very excited about the dialogue that the program will create.
TDL: We want to create a conversation where people from these different areas can discuss how climate change litigation might be informed by perspectives based on environmental law, energy regulation, and torts. We also want to talk about how climate change litigation is likely to have an impact on these areas of law. We know that the tort system has been transformed by the advent of mass litigation, and, mass litigation has, in turn, transformed the way in which torts are litigated. We expect the same phenomenon around climate change.
We want the session to be less an academic panel and more like a town hall or workshop. Although we expect the discussion to be primed by official panelists, we’re hoping to have individuals in the audience also generate conversation so that everyone in the room can engage in a more free-flowing exchange of ideas.
Additionally, I hope that our session will prompt reflection about the contribution of academia to climate change. We burn an enormous amount of jet fuel flying around to various events and conferences. I think that the academy writ large—and also AALS as an organization—may be ready for conversation about how to reduce the carbon footprint of the whole enterprise without entirely jettisoning the opportunities for collegiality that travel provides.
MJD: Tort law touches so many different elements of our life, by both public regulation and private remedies, that there are many different views through which our members see the role of tort law. There is the view of litigation as an aggregate regulatory mechanism, important now with the way that opioid litigation is evolving and how tobacco litigation evolved before it. Many of our members write in that space. Then, there is the traditional tort theorist. Is tort law multi-lateral in its goals? Is it unilateral? The economic analysis of law, as an example, is still important in tort law. Also, there are many people writing in the intersection of tort law and race and racism regarding how systemic racism has impacted the operation of tort doctrines. Our members also explore the role of the interaction between federal regulations and state law.
TDL: The Section newsletter pulls together all the scholarship related to torts and compensation systems each year. The citations cover a variety of topics, from highly theoretical studies in the philosophy of liability and tort theory to the details of litigation strategy, and things in between like the general tendency towards aggregation of claims and the vanishing trial. We solicit citations from members of their own work and supplement that with bibliographical research by law librarians.
MJD: One of the best ways for people to get involved in the field is to find scholars who are producing work in the areas you are interested in. The junior faculty workshops are robust, and it’s fairly easy to get into the world of sharing your scholarship and presenting your scholarship. The Executive Committee members are very interested in hearing from people who want to be active in the Section. Our Executive Committee also tries to identify faculty at different schools, different regions, different types of school, and focus on different subject matters to bring vigor to the Section’s leadership. Please get in touch with us if you are interested in the Section and/or leadership.
TDL: Different fields of legal scholarship and teaching have different cultures. Torts scholars comprise a particularly open and welcoming community. In my experience, it doesn’t take much more than a cold call or an email out of the blue to introduce yourself to someone, make a connection, and get advice about how to advance your career, how to get invited to a conference, or how to get involved in Section leadership. I second what Mary suggested, and I encourage people to reach out to scholars they admire because there are a lot of opportunities to be mentored.
MJD: It’s hard to know the full extent of the impact that the pandemic is going to have on the way we compensate for injuries. I think there are going to be some substantial impacts as a result of, for example, the federal legislation with regard to immunities that are going to be provided to people who’ve provided personal protective equipment or even vaccines. There is a strong likelihood that compensation systems at the state level will also be impacted, like workers compensation.
TDL: COVID-19 created a policy window for interest groups such as the Chamber of Commerce to advance ideas about tort reform that had been routinely raised in state legislatures and in Congress for 20 years. Early in the pandemic, there was a lot of talk by Republican congressional leaders about a tidal wave of litigation against store owners and business operators for COVID-19 transmission. This caused a lot of fear, and tort reform rose to the top of the national political agenda. Proposals to grant businesses sweeping immunity from tort liability were blocked in Congress repeatedly, but they have been successful in state legislatures across the country. Many state legislatures have passed laws that immunized businesses and professionals from liability arising out of COVID-19 transmission caused by a business owner’s negligence or professional malpractice.
MJD: Conversations about systemic racism and antiracism are happening on a daily basis within the academy. For example, many tort law professors have been teaching for a long time about the systemic way in which race is embedded into legal doctrine and torts law. I think we’re all trying to explore ways to have those conversations in our courses in a more robust, honest, and respectful way. In my own geographic area, tort law professors got together last summer before the semester started to talk about ways in which each of us can better raise questions of race and racism in the subject and the doctrine. Conversations like those are happening throughout the academy, throughout every subject. The deans of the AALS member law schools have created the Law Deans Antiracist Clearinghouse Project, which has resources that deans posted last summer to assist all of us in exploring ways in which we can respond to the issues of systemic racism and injustices born of race.
TDL: The events of the last year have created an even more heightened sense that it’s important to actively identify obstacles or barriers that may be impeding people’s progress, both their ability to enter the field and also their opportunities to obtain leadership positions. We have tried in our recruitment of new board members to be especially sensitive to those sorts of issues and to actively pursue greater diversity and inclusion in Section leadership.
MJD: Remote work has impacted legal education, and education more broadly, in a myriad of ways that we don’t yet fully appreciate. I taught in-person in the fall of 2020, and it was difficult being in a room, socially-distanced, wearing masks, and face shields. The nature of the interaction and the nature of the social connection were impacted. Part of what legal education requires is that we give our students the understanding about how to interact with your clients and the people in your community that you will lead. That requires an understanding of in-person social dynamics. Students in law schools last year are in some ways behind the curve in that part of their education, but ahead of the curve in understanding the value of remote methods that enhance efficiency, and the quality of life. The nature of the practice of law is absolutely going to be different going forward because of changes from the pandemic. For instance, virtual hearings, virtual depositions, and virtual mediations will likely continue. We, as legal educators, will have to respond to these changes for our students.
TDL: Outside the academy, remote work has been a major challenge for litigators. Trials have been suspended, and the threat of trial is central to settlement dynamics.
MJD: I started teaching from the book that I learned from during law school, and I taught from that book for a long time. Then, I decided about 10 years ago that I was at risk of being stale. All of us who have taught for a long time have to be aware of the risk of our courses becoming stale and look for ways to include current issues in our teaching. Changing books has really benefited my teaching. It caused to flip the way I thought about the subject in important ways. It was not the way in which torts was changing as much as it was the way I needed to change to respond to what might be different about the subject.
TDL: When I started teaching in 1991, I taught torts as I had learned it as a student–with a heavy emphasis on economic theories of efficient risk allocation and philosophical theories of corrective justice. The longer I spent teaching torts and learning about the tort system, the more I started to integrate a more sociolegal and empirical approach that focuses on how the tort system works in action. In my course, I grapple with questions such as: Why are claims framed in one way rather than in another way? What are the types of strategic considerations that lawyers think about when filing lawsuits? How is litigation part of a broader effort by lawyers to solve problems for their clients? What is the relationship between tort litigation and political activism? There are lots of things that go into tort practice, and a lot of them are not captured by a narrow focus on economic analysis or philosophical theories.
AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each section is focused on a different academic discipline, affinity group, or administrative area. For a full list of AALS sections and information on how to join, please visit aals.org/services/sections.