September 14, 2007
McFarland and Garner on terrorism tort claims
Robert McFarland and Donald Garner of Faulkner University have posted a paper on SSRN suggesting that American law supports viable tort claims against Saudi Arabia for certain terrorist acts. The paper -- Suing Islam: Tort, Terrorism and the House of Saud -- is forthcoming in the Oklahoma Law Review. Here's the abstract:
This paper examines the Kingdom of Saudi Arabia's vital role in propogating Wahhabism, a peculiarly intolerant form of Islam justifying violent jihad, and argues that Saudi Arabia is liable for the resulting harm.
The Kingdom's role in creating terrorism is a subject of great national concern. The need for reform in Saudi Arabia's Wahhabist religious establishment is frequently discussed in the Congress. This paper argues that the federal judiciary, in addition to Congress, has a vital role to play, not only in generating compensation for terrorism victims, but also in winning the ideological war on terrorism. 9/11 and other contined manifestations of terrorist jihad are causally intertwined with the Sunni Wahhabism practiced and promoted by Saudi Arabia. Upon that understanding we build our tort theories and upon that understanding America can more thoughtfully defend itself in the ideological war on terror.
Part I discusses Saudi Arabia's historic and continued committment to Wahhabism. Part II argues that American tort law supports two viable causes of action against the Kingdom for harm inflicted by Wahhabi jihadists: (1) negligent incitement of terrorism; and (2) special relationship liability. Finally, in Part III, the question of Saudi Arabia's sovereign immunity is discussed with special attention given to the analysis of Saudi Arabia's immunity in the 9/11 litigation.
September 13, 2007
Drug and Device Law Blog discusses in detail the recent New Jersey Supreme Court Operating Engineers opinion, decertifying a third-party-payer, consumer fraud class involving Vioxx.
Food Law Prof Blog has a post on the FDA Statement on the Strategic Framework Document on Import Safety.
Punitive Damages Conference at Charleston Law School
I had the pleasure of attending and participating last Friday, September 7, in the Charleston Law School conference, entitled, "Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams." The conference included top national experts on punitive damages, as well as counsel in Williams, and was very well attended, with likely upwards of two hundred people. As Professor Michael Rustad of Suffolk Law School noted, if the conference is any indication of the trajectory of recently founded Charleston Law School, it will "rise like an arrow."
Look for the symposium issue from the Charleston Law Review, which will include publication of transcripts and articles from the conference.
September 12, 2007
Mattel CEO Appears Before Senate Panel
Article on cnn.com -- Mattel CEO contrite before Senate, by Parija Kavilanz. Here's an excerpt:
Mattel CEO Robert Eckert made another public apology Wednesday over unsafe toys that were made in China, and sought to convince a Senate panel that the company was determined to avoid more recalls in the future.
"On behalf of Mattel and its nearly 30,000 employees, I apologize sincerely," said Eckert, who testified before a Senate Appropriations subcommittee on toy safety.
"I can't change the past, but I can change the way we do things," he said.
Referring to Mattel's string of big toy recalls over the summer due to lead paint hazards and choking risks, Eckert blamed Mattel's vendors in China. "As to lead paint on our products, our systems were circumvented, and our standards were violated," he said.
"What has made these events particularly upsetting is that Mattel has long had in place what we believe are some of the most rigorous safety protocols in the toy industry," he said.
Going forward, Eckert said Mattel had two jobs, to prevent what happened from happening again and to let consumers know about recalls at the earliest.
Maryland Allows Product Liability Claims for Unmanifested Defects
Article in the ABA Litigation News -- Maryland Expands Product Liability for Unmanifested Defects, by Brian A. Zemil. Here's an excerpt:
Rejecting the majority rule adopted by other states, Maryland’s highest court has held that unmanifested product defect claims can be actionable even when the plaintiff fails to allege personal injury.
In Lloyd, the Maryland Court of Appeals reinstated a class action brought by plaintiffs who had sued auto manufacturers that sold cars allegedly containing defective seatbacks—even though the defects had yet to manifest themselves, let alone cause actual injury to the class members. Because the flaws could potentially cause death or serious injury, the court held that the cost of repairing the seatbacks was actionable in tort and contract and as a consumer protection claim.
The decision forms “part of a hotly contested nationwide dispute over whether a product that has a possibility of malfunctioning is defective such that it can support a consumer-type product liability class action claim for economic loss,” says Scott L. Nelson, Washington, DC, former Co-Chair of the Section of Litigation’s Class Actions and Derivative Suits Committee.
September 11, 2007
"Mass Torts and the Incentives for Suit, Settlement, and Trial"
In a new article entitled Mass Torts and the Incentives for Suit, Settlement and Trial two Vanderbilt economists, Andrew F. Daughety and Jennifer F. Reinganum, try to predict the effect of proof regimes on plainitff's incentives and therefore on the resolution of mass tort cases Here is the abstract:
We explore how the incentives of a plaintiff and her attorney, when considering filing suit and bargaining over settlement, can differ between those suits associated with stand-alone torts cases and those suits involving mass torts. We contrast “individual-based liability determination” (IBLD),wherein a clear description of the mechanism by which a defendant's actions translate into a plaintiff's harm is
available, with “population-based liability determination” (PBLD), wherein cases rely upon the prevalence of harms in thepopulation to persuade a judge or jury to draw an inference of causation or fault. We show that PBLD creates a positive externality for the plaintiff's side that is inherent in many mass tort settings; this externality induces an increased propensity to file suit, higher settlement demands and greater joint payoffs for plaintiffs and their attorneys. Consequently, the defendant in a PBLD case faces an increased ex ante expected cost compared with the IBLD regime, thereby increasing incentives to take care. However, PBLD need not always imply an increased likelihood of trial relative to IBLD for any filed case (though it may lead to more cases being filed); the heightened aggressiveness of the plaintiff and her attorney can actually lead to a reduction in the likelihood of trial. Thus, PBLD can be more, or less, efficient than IBLD (in the sense of reducing trial costs), when considering cases that would be filed in both possible regimes.
This raises both substantive questions and methodological ones. The article is available here on SSRN.