Wednesday, September 22, 2010
Anita Bernstein (Brooklyn) has posted to SSRN her article, Teaching Torts: Rivalry as Pedagogy. I've also been increasingly interested in the rise of global tort practice and have noted the rise in attention to global tort practice over the past few years; indeed, I'm now considering teaching a course entitled, Global Tort Litigation. Here's the abstract for Anita Bernstein's article:
This contribution to a Tort Law Academic Workshop considers the ‘twin themes’ pervading torts pedagogy in the twenty-first century: (1) teaching torts for global practice and (2) teaching the common law in an age of statutes. Manifested at both transnational and national levels, the two themes have in common what may be understood as rivalries, where contrary rules and stances compete for power. The article explores illustrations of this competition that emerge in an American torts classroom, with attention to the interest that a ‘pedagogy of rivalry’ might hold for torts teachers and scholars working within common law systems outside the United States.
Brian Fitzpatrick (Vanderbilt) has posted to SSRN his provocatively titled article, Do Class Action Lawyers Make Too Little? Here's the abstract:
Class action lawyers are some of the most frequently derided players in our system of civil litigation. It is often asserted that class action lawyers take too much from class judgments as fees, that class actions are little more than a device for the lawyers to enrich themselves at the expense of the class. In this Article, I argue that some of this criticism of class action lawyers is misguided. In particular, I perform a normative examination of fee percentages in class action litigation using the social-welfarist utilitarian account of litigation known as deterrence-insurance theory. I argue that in perhaps the most common class action – the so-called “small stakes” class action – class action lawyers not only do not make too much, but actually make too little. Indeed, I argue that it is hard to see as a theoretical matter why lawyers should not receive 100% of class judgments in small-stakes cases. Of course, it is unlikely that judges in the current political climate will feel comfortable awarding class action lawyers fees equal to 100% of judgments in any type of class action, small stakes or otherwise. Moreover, it is not entirely clear that judges have the legal authority to award fees at such a level. Nonetheless, even if judges cannot award 100% of small-stakes judgments to class action lawyers due to political or legal constraints, deterrence-insurance theory suggests that they should award fee percentages as high as they can in small-stakes cases, which, by any measure, are much higher than the percentages they tend to award now. Unfortunately, deterrence-insurance theory is unable to provide judges with as much guidance in large-stakes and mixed-stakes class actions.
Monday, September 20, 2010
An article in the Wall Street Journal discusses the remaining BP's remaining challenges stemming from the Gulf Oil Spill -- governmental investigations, civil lawsuits, and fines. The amount of fines imposed may turn on whether BP is found "grossly negligent." With regard to lawsuits, much will depend on the extent to which Ken Feinberg can persuade potential plaintiffs to forego their legal claims in exchange for quicker compensation via the $20 billion BP claims fund.
Sunday, September 19, 2010
The Second Circuit has reversed Judge Weinstein's certification of a RICO class action brought by third party payors against Eli Lilly for excessive pricing of the drug Zyprexia. Essentially the class action was felled on the issue of causation requiring individualized proof rather than generalized proof of causation (i.e. that the defendant's misrepresentations caused plaintiffs to pay a higher price for the drug than they otherwise would have) according to the circuit court.Torts Prof Blog).
According to an article in the Wall Street Journal, Toyota has settled, for an undisclosed amount, an unintended-acceleration lawsuit involving the deaths of four persons. The accelerator appeared to have been caught in the floormat. The article notes that Toyota faces about 200 unintended-acceleration lawsuits.