Friday, October 3, 2008
Dan Markel (Florida State
Here is the abstract of the first piece:
What are punitive damages for? In a companion article, I argued that states should re-conceive and restructure punitive damages to advance, in part, the public's interest in retributive justice. I called such damages "retributive damages." Although that article provided the rationale and basic structure for retributive damages as an expressly "intermediate sanction," and explained why society should want retributive damages independent of other remedial or penal options, the theoretical nature of the proposal only scratched the surface of how they would operate in practice. This Article addresses the next critical question: how should punitive damages work? This question is especially timely in light of the Supreme Court's recent decision in Philip Morris v. Williams, which held that juries may not consider the harms to non-parties in determining the amount of punitive damages a defendant must pay. To make punitive damages work, we must first separate retributive damages from damages meant either to achieve optimal deterrence (to the extent permitted by Philip Morris) or to vindicate the victim's dignity interests. Because these purposes are distinct, a jurisdiction that conflates them risks both under- and over-protection of various defendants. Once we correctly understand these distinct purposes, our institutional design for civil damages should map these values appropriately.
This Article begins that important task, first by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages vindicate, and second, by addressing the critical implementation issues associated with this pluralistic scheme of extra-compensatory damages: insurance, settlement, and taxation.
Yesterday's New York Law Journal had an article detailing the higher threshold for class certification in the Second Circuit. Among the Second Circuit cases profiled were the 2006 In re IPO Securities Litigation decision and, more recently McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) (RICO class action). The impact of those decisions has started to trickle down to decisions in the Southern District of New York in the following cases:
McCracken v. Best Buy Stores, 248 F.R.D. 162 (S.D.N.Y. 2008) (denying class certification because of individualized issues of proof in theories of breach of contract and unjust enrichment);
In re Credit Suisse First Boston Corp. (Latronix Inc.) Analyst Securities Litigation, 250 F.R.D. 137 (S.D.N.Y. 2008) (decertifying a class based on allegedly false and misleading analyst reports in light of the Second Circuit's IPO decision);
Lapin v. Goldman Sachs & Co., 2008 WL 4222850 (S.D.N.Y. Sept. 15, 2008) (certifying the class and disagreeing with the Credit Suisse case by holding that plaintiffs need not establish loss causation to invoke the presumption of reliance in a class certification motion and that the question was whether loss causation could be proven by classwide evidence--not whether that evidence was ultimately persuasive);
In re Grand Theft Auto Video Game Consumer Litigation, 251 F.R.D. 139 (S.D.N.Y. 2008) (decertifying a class based on the Second Circuit's McLaughlin decision and in light of having to determine the laws of the state where each purchase was made).
Wednesday, October 1, 2008
Professor Tom Cornford (Oxford) has published Towards a Public Law of Tort (2008). Here's the description:
Presenting a new approach to the problem of public authority liability, this volume provides a theoretical foundation in the form of principles of administrative liability that are both normatively sound and consonant with other recognized legal principles. These principles are used as criteria by which to judge the current law and as a guide to reform.
Such reform could be brought about by judicial development of the law, and this volume explains how. It considers both the procedural and the substantive divides between public and private law and explains the proposed solution's relation to the forms of public authority liability already present under European Community law and the Human Rights Act. Focusing in particular on UK law, the book is also relevant to other Commonwealth countries and will be of interest to scholars and practitioners of both tort and public law.
In 2009, Professor Magdalena Tulibacka (Oxford) will publish Product Liability Law in Transition: A Central European Perspective (Ashgate Publishing). Here's the description:
This volume examines the evolution of Central European product liability regimes, with particular reference to the effect of the implementation of the Product Liability Directive in the context of the recent enlargement of the EU.
Using Product Liability Law, the study offers a valuable insight into the necessary features and requirements of the harmonization of laws between the EU and Post-socialist Europe. This complex undertaking is achieved by use of comparative law methodology concerned with convergence of laws, international movements of law and the changes these necessitate. The volume further provides a comparison of how the law has evolved in Socialist states and compares it to developments taking place in the West.
Predominantly legal in scope, the study also takes account of the importance of extralegal elements in law reform. As such, it will be a valuable resource for those interested in European Law as well as those working in the area of Consumer and Product Liability law.
Tuesday, September 30, 2008
Article on cnn.com -- Manufacturing giant recalls melamine tainted tea. Here's an excerpt:
Unilever is recalling four batches of Lipton Milk Tea sold in Hong Kong and Macau after finding traces of the chemical melamine in the product, the company said Tuesday.
Unilever Hong Kong Limited described it as a precautionary measure and said no other Lipton Milk Tea Powder products were affected.
The announcement came a day after British confectioner Cadbury said it has recalled all of its Chinese-made candy products after preliminary tests showed they contained trace amounts of melamine. Some of the products were exported to Taiwan, Hong Kong, Australia, Nauru and Christmas Island, according to the company.
They are the latest companies to get caught up in China's tainted milk scandal, which began earlier this month when authorities discovered melamine in powdered infant formula.
Contaminated milk has sickened nearly 53,000 children in China, killing four.
On Friday, October 24, 2008, Suffolk Law School will host a conference, Successful Strategies for Jury Trials. Speakers include Professors George Conk (Fordham), Valerie Hans (Cornell), Michael Rustad (Suffolk), Linda Sandstrom Simard (Suffolk), Gabriel Teninbaum (Suffolk), and Neil Vidmar (Duke).
Professor Conk will deliver the Luncheon Keynote Address on "The Vioxx Story."