Friday, March 16, 2012

House Republicans Link Bipartisan “IPAB Repeal” Bill with Partisan “Tort Reform” Bill

You can never be too rich or too thin, and apparently you can never get enough “tort reform,” either.
And if you keep repeating over and over that damages caps lower malpractice premiums, maybe it will someday be true despite all empirical evidence to the contrary.

A bill to repeal a portion of “Obamacare” dealing with the Independent Payment Advisory Board (H.R. 452) had bipartisan support until House Republicans linked it with the Orwellian “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011” (H.R. 5). The resulting bill, ( now called the “Protecting Access to Healthcare Act,” provides in its findings:

that our current civil justice system is adversely affecting patient access to
health care services, better patient care, and cost-efficient health care, in
that the health care liability system is a costly and ineffective mechanism for
resolving claims of health care liability and compensating injured patients,
and is a deterrent to the sharing of information among health care
professionals which impedes efforts to improve patient safety and quality of

(2) EFFECT ON INTERSTATE COMMERCE.—Congress finds that the
health care and insurance industries are industries affecting interstate
commerce and the health care liability litigation systems existing throughout
the United States are activities that affect interstate commerce by
contributing to the high costs of health care and premiums for health care
liability insurance purchased by health care system providers.

Same old rhetoric, same old provisions -- $250,000 cap on noneconomic damages, 3-year-statute of limitations, elimination of joint and several liability, court review and serious reduction of plaintiff’s attorneys’ contingent fees, and limitations on punitive damages (including the prohibition of pleading such damages initially).

Politico ( reports that the IPAB bill was expected to go to the floor of the House for a vote later this month, but now “[i]It’s unclear exactly how Republicans plan to move the two bills, but both should clear the House relatively easily.”


March 16, 2012 in Current Affairs, In the News | Permalink | Comments (1)

Wednesday, March 14, 2012

Motion to Dismiss Age Discrimination Suit against Georgetown Law School in Faculty Hiring Denied

The March 13, 2012 opinion by Judge Huvelle of the District of District of Columbia in Spaeth v. Georgetown University is available here.

As an aside, the court seems to be backing off Twiqbal:

The notice pleading rules are “not meant to impose a great burden on a plaintiff,” Dura Pharmaceuticals, Incorporated v. Broudo, 544 U.S. 336, 347 (2005) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513–515 (2002)), and “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion. Twombly, 550 U.S. at 555 (citing Conley, 355 U.S. at 47).


March 14, 2012 in Recent Decisions | Permalink | Comments (0)

Hall on Standing of Intervenor-Defendants in Public Law Litigation

Matthew Hall (University of Georgia) has posted Standing of Intervenor-Defendants in Public Law Litigation to SSRN.

Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.

But the issue of standing to defend takes on outsized importance when third parties who are not targeted by the plaintiff’s requested remedy seek leave to intervene in order to oppose the plaintiff’s claim for relief. In cases featuring intervenor-defendants — often cases that concern important issues of public law — the personal-stake requirement becomes a real and not merely theoretical concern for the defendant. The problem is well illustrated by pending cases that address the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act. In each case, the executive branch officials named as defendants declined to defend the challenged law, prompting a nonparty with a questionable personal stake to seek to intervene to defend against a plaintiff’s claim. The prevailing plaintiff-centered model of standing does not lend itself readily to assessing whether such volunteer defendants have an interest sufficient to create a case or controversy.

This Article develops a model of defendant standing based on the functions that standing doctrine is intended to serve, and derived from the cases in which the U.S. Supreme Court has considered the personal stake of defendants under Article III. Under this model, absent a traditional injury in fact, intervenor standing to defend in public law litigation is appropriate only where state or federal law confers on the intervenor the authority to represent the government’s interest. This Article then illustrates the application of that model in the Proposition 8 and DOMA cases, and concludes that the intervenors in the Proposition 8 litigation do have standing to defend, while the intervenors in the DOMA litigation do not.


March 14, 2012 in Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)