Best of the Blogs: Trivial Pursuits Edition

This week’s review of blog postings and news stories of note focuses on subjects that might seem trivial, but that interest me nonetheless.

1. Comic Books

My brother and I had an extensive collection of comic books when we were growing up.  We even owned two (two!) mint editions of Conan the Barbarian number 1.  If I still owned that collection today, it would easily pay for the first year of my daughter’s college tuition.

After reaching the age of puberty, I consigned my childhood love of comic books to the “trivial” category of youthful pursuits.  Perhaps that is why I was so delighted to read about the current exhibit at the Lillian Goldman Law Library at Yale University, entitled Superheroes in Court! Lawyers, Law and Comic Books.  As described by John Schwartz in the New York Times, this exhibit includes comic books with a legal setting, contracts and correspondence relating to legal disputes over the ownership of comic book characters, and reports submitted to Congress during the 1950s seeking federal legislation to address the alleged connection between comic books and juvenile delinquency.

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Gulf Oil Disaster — Lessons in Torts and Bailouts

The oil rig explosion that killed eleven workers and causes the daily flow of an estimated 200,000 gallons of oil into the Gulf of Mexico presents a gut check moment on tort policy.  A lot of harm has been and will be caused by this catastrophe, and somebody will bear the cost of that harm. Should it be the responsible parties? the victims? the taxpayers?

American tort law, under the principles of proximate cause and nuisance, tells some victims that they must bear the cost of their own harm because it is either too remote (not a “proximate” cause) or too common (to be compensable, damages from a public nuisance must be “different in kind” from those suffered by others) to require the responsible party to pay. The responsibility of those whose conduct caused the harm must have a “sensible and just” stopping point, according to established doctrine. As a general matter, under common law principles, it is “sensible and just” to cause victims to bear their own costs if the harm they suffer is essentially economic or emotional in nature, as opposed to bodily injury or property damage.

These uncompensated losses often hit the taxpayers as well as the victim. 

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The Economic Loss Doctrine and Other Property

Ralph Anzivino continues his exploration of the economic loss doctrine in a new paper on SSRN.  The economic loss doctrine indicates that economic losses resulting from a defective product are recoverable, if at all, under contract law, instead of tort law.  In applying this doctrine, however, courts have run into difficulty with damage to other property besides the defective product.  For instance, in one case, a ship caught fire and sunk as a result of defective hydraulic equipment, and the court had to decide whether the ship owner could recover the value of other equipment on the ship under a tort theory of strict products liability.  Courts have adopted a variety of conflicting and uncertain tests to determine whether such damages to other property are governed by tort or contract law. 

In his paper, Ralph proposes a new test that emphasizes contract principles first.  Parties should be permitted to allocate the risk of losses between themselves.  Thus, if a contract validly addresses losses to other property, Ralph would enforce the contract; otherwise, tort principles would apply.  He defends this approach as clearer and more consistent with the underlying purposes of the economic loss doctrine than approaches currently in use.

Entitled “The False Dilemma of the Economic Loss Doctrine,” Ralph’s paper is forthcoming in the Marquette Law Review.  His other recent articles on the economic loss doctrine are here, here, and here.

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