The Henry G. Manne Program in Law & Economics Studies, a division of the Law & Economics Center at George Mason University Antonin Scalia Law School is hosting a Market Share Liability Research Roundtable.

Full Details

To allocate liability for torts, courts have traditionally demanded that plaintiffs provide proof of direct and identifiable causation that is traceable to a particular defendant to decide the scope of a defendant’s liability.  But, tort actions with multiple potential contributors to harm and multiple defendants – which may or may not include all potential contributors in the case – oftentimes have difficulties in deciding the appropriate allocation for liability.  Indeed, proof of any single contributor’s share may be difficult to establish.  Whether this difficulty is enough to dispense with the traditional rigors of requiring proof of direct causation and particularized traceability to a defendant’s conduct is a question in and of itself.  Some believe there should be a relaxation of the traditional standards in the face of practical difficulties.  Consequently, courts have at times accepted arguments advocating for innovative proxies for proof.

One method suggested is apportioning liability among defendants based on their respective market shares in the sale of a product, provision of a service, or profit from conduct – known as “market share liability.” Because market share liability in recent years has once again emerged as a serious point of discussion in a number of highly consequential tort cases across the country, there is a need for a renewed scholarly focus on this concept.

* * *

The Manne Program at the Law & Economics Center issued a call for papers that would produce insightful analysis exploring market share liability.

Total honorarium payments of $12,000 per paper are available to those who fulfill all the obligations of the program, which are described in detail below.

Qualifying papers critically examine market share liability from a law and economics perspective and evaluate how market share liability fits within the traditional and foundational structure of the tort system. Authors are writing papers on any topic related to market share liability,  including:

• What is the economic basis, if any for market share liability? Does this economic basis justify deviation from traditional tort liability standards?
• What might be unintended economic consequences from creating a system in which defendants can be liable based on market share?
• How does market share liability apply when the relevant state or court does not have jurisdiction over significant portions of the market or implicated activity, especially when the harm cannot be traced to activity directly in the relevant jurisdiction?
• Should plaintiffs be required to sue all known market participants to pursue market share liability? Is there a fairness issue in singling out some market participants when the harm can’t be directly traced to them?
• Are there due process concerns with deviating from traditional standards of causation and particularized traceability?
• Does market share liability apply when the named defendants could not have been responsible for the harm, including because their cumulative actions would be immaterial or not establish proximate causation?
• Does market share liability apply when the alleged harm and/or causal chain is not concrete, but rather an increased risk of harm or severity of harm? Is market share liability appropriate in contexts like deceptive or misleading practices, where the wrongful action did not directly cause the harm?
• How does market share liability apply when multiple markets/other sources could have contributed to the harm? Should they be included as a collective market or otherwise dilute liability?
• Does market share liability change the incentives to sue and, if it does, how? What might the unintended consequences be for the court system from wider adoption of market share liability?

1. Submission of Research Proposal – Submission Deadline of March 18, 2024:

•  Successful applicants will be notified by Monday, April 1, 2024.

2. Research Roundtable, Chicago, Illinois (August 6-8, 2024):

• Selected authors will present well-developed drafts of their papers at a private research roundtable. This research roundtable is designed to provide authors with constructive feedback from expert academics and practitioners in the field. In addition to the paper authors are expected to serve as commentators on all papers, the research roundtable will also include at least one additional commentator per paper who will join the roundtable. This peer review process ensures every draft paper undergoes significant scrutiny and receives substantial feedback for improvement. Research roundtable drafts should represent substantial work beyond the proposal, and they should be suitable for presentation at a faculty workshop. Authors chosen to present will be provided an honorarium of $4,000 per paper after timely submission of their draft and presentation of their work at the August roundtable. Roundtable drafts will be circulated to participants two weeks prior to the roundtable and are therefore due by July 23, 2024.

3. Completion of Final Draft, Submission to a Suitable Academic Journal, and Posting to SSRN (December 1, 2024):

• Authors are expected to complete a final draft and post it to SSRN by December 1, 2024.  The LEC will also host these drafts on its website (https://masonlec.org). Upon completion of these requirements, author(s) will receive a final honorarium of $8,000 per paper.  As a condition of receiving final payment, authors must commit to seek publication in a suitable academic journal by March 1, 2025, if submitting to the general law review pool or by January 1, 2025, if submitting to peer-reviewed journals.

In addition to providing honorarium, the LEC will provide lodging and meals at the Research Roundtable. Participants will be responsible for their own transportation arrangements and expenses.

For questions about the Roundtable, please contact Angelica Sisson (asisson2@gmu.edu).   

* * *

The LEC’s Henry G. Manne Program in Law & Economics Studies promotes law and economics scholarship by funding faculty research, convening research roundtables, and hosting policy-relevant academic workshops and conferences.

Established in 2010 to honor the legacy of Henry G. Manne – legendary former Dean of the Antonin Scalia Law School, founder of the Law & Economics Center, and one of the founding fathers of the law and economics movement – the program seeks to improve the quality of legal scholarship by offering educational workshops on important and topical areas of study.

Since its founding, the Manne Program’s workshops and research roundtables have included more than 2,000 participants from 429 academic institutions. In addition to its core constituency of academics, Manne Program events also attract attendance from the policy community, including economists and lawyers from federal agencies, Capitol Hill, state government offices, and the non-profit and for-profit research sectors.