Monday, June 29, 2015
Leslie Kendrick has posted to SSRN Nonsense on Sidewalks: Content Discrimination in McCullen v. Coakley. The abstract provides:
What does it mean to say that the government may not “restrict expression because of its message, its ideas, its subject matter, or its content?” Whatever it means, how would one determine when it has occurred? First Amendment law has wrestled with these questions for more than forty years, and if McCullen v. Coakley is a reliable indicator, the debates have only become more fractious. At several points, the Justices viewed a single phenomenon in strikingly different terms. These conflicts demonstrate both the potential benefits of clear rules in the content discrimination context and their lurking futility.
Thursday, June 25, 2015
Political subdivisions involved in the clean up of a corn mash spill onto a highway were denied sovereign immunity in a recent Nebraska case because they were on notice of the incident, had a reasonable amount of time to correct the problem, but failed to do so. Iowa State's CALT has details.
Tuesday, June 9, 2015
Monday, June 8, 2015
Friday, June 5, 2015
Greetings! In my capacity as Secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.
1. Torts and Compensation Section Newsletter As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at email@example.com. The deadline for inclusion is August 17, 2015.
2. 2016 William L. Prosser Award This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs. Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015. Email submissions to firstname.lastname@example.org are preferred. If you would rather mail hard copies of nomination materials, please mail to: Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.
Please feel free to contact me if you have any questions.
Thursday, June 4, 2015
Ted White has posted to SSRN The Emergence and Development of a Law of Torts. The abstract provides:
This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.
Wednesday, June 3, 2015
Alberto Bernabe has published Setting Parental Controls: Do Parents Have a Duty to Supervise Their Children's Use of the Internet?. He answers "no" in a comment on last year's Georgia appellate decision in Boston v. Athearn (prior coverage here).
Tuesday, June 2, 2015
Heidi Hurd has posted to SSRN The Innocence of Negligence. The abstract provides:
This article defends the claim that negligence is not blameworthy, and that the system of accident law that dominates Anglo-American law is thus not, in fact, fault-based. Recognizing that this claim contradicts hundreds of years of case law and jurisprudential rhetoric, the article systematically examines five alternative bases upon which it might be tempting to predicate claims of fault in cases in which persons have inadvertently caused harm. On these accounts, we are entitled to blame, and therefore to transfer the costs of accidental injuries, to negligent actors because: (1) they deliberately chose to violate per se precautionary rules that exist to safeguard others from inadvertent injury, and in so doing they culpably engaged in objectively faulty conduct, even if they did not subjectively appreciate its risks; or, (2) they deliberately chose to do acts that they knew would make their later inadvertence to risks unjustifiably likely, and we can properly blame them for those prior culpable choices, even if we cannot blame them for the inadvertence that later attended their injurious actions; or (3) while they made no relevant choices with regard to the accidental injuries they caused, they possessed unexercised capacities, which if exercised, would have prompted them to choose a risk-free course of conduct; or, (4) they possessed defective motor skills, cognitive capacities, or volitional resources which were themselves morally blameworthy or which, if not themselves blameworthy, were causally significant to the accidental injury in ways that could have been prevented; or (5) they possessed defects of character which were themselves blameworthy, and which caused their failure to advert to the risks of their behavior, thus making such inadvertence blameworthy.
As I shall argue, none of these arguments succeed in grounding the claim that negligence is morally blameworthy. None thus provide a basis for thinking that negligence liability is fault-based. Absent any further account of how inadvertent injuries are culpably caused, tort law and tort theorists should confess that negligence liability is just another species of strict liability. Corrective justice theorists who are anxious to preserve the claim that tort law should be in the business of redressing culpable wrongs should thus either urge the doctrinal adoption of genuine culpability conditions or get on with the task of vindicating the morality of redistributing losses to those who have voluntarily caused them, however innocently.
Monday, June 1, 2015
The largest premises verdict in Texas in the last decade, for the deaths of two teenagers, was handed down against McDonald's last month. One of the victims was beaten in a McDonald's parking lot in College Station, Texas, and the other was killed in an auto accident while a friend attempted to get her and the first victim to the hospital. The theory of the case was lax security; the argument was based, in part, on the fact police had been called to the restaurant at least 20 times in the last year and McDonald's never hired security or installed cameras. PR Newswire has details.
Friday, May 29, 2015
Thursday, May 28, 2015
It's summer and literature week here at TortsProf. Yesterday I posted about Martin Clark's "Jezebel Remedy," and today I'm pushing another novel from my home state of Virginia. Charlottesville lawyer John Davidson has just published his debut novel, "Virginia Dawning." Back in 2012, John won a short story contest judged by John Grisham. "Virginia Dawning" is receiving strong early reviews; the blurb:
One spring morning in the gentle hills of Virginia, when Dr. Luke Andrews kisses his wife, Sarah, goodbye for the day and drives to his small-town medical practice, he unwittingly leads their young family into the hands of Hiram Legrand, a dangerous fugitive from the law.
Filled with shocking twists, Virginia Dawning is a fast-paced thriller that brings one family face-to-face with pure evil. Told in a rare dual first-person narrative by Luke and Sarah Andrews, a young couple, this suspenseful tale offers surprises at every turn while compelling readers to consider the true meaning of hope and love.
Wednesday, May 27, 2015
Virginia Circuit Judge Martin Clark is about to publish his fourth novel, "The Jezebel Remedy." I reviewed Clark's third novel, "The Legal Limit," back in 2009. I'm very excited about the next one, due out on June 9th. From the blurb:
Lisa and Joe Stone, married for twenty years and partners in their small law firm in Henry County, Virginia, handle less-than-glamorous cases, whether domestic disputes, personal injury settlements, or never-ending complaints from their cantankerous client Lettie VanSandt (“eccentric” by some accounts, “certifiable” by others). When Lettie dies in a freakish fire, the Stones think it’s certainly possible that she was cooking meth at her trailer. But details soon emerge that lead them to question how “accidental” her demise actually was, and settling her peculiar estate becomes endlessly complicated.
Before long, the Stones find themselves entangled in a corporate conspiracy that will require all their legal skills—not to mention some difficult ethical choices—for them to survive. Meanwhile, Lisa is desperately trying to shield Joe from a secret, dreadful error that she would give anything to erase, even as his career—and her own—hangs in the balance. In The Jezebel Remedy, Clark gives us a stunning portrait of a marriage, an intricate tour of the legal system, and a relentlessly entertaining story that is full of inventions, shocks and understanding.
Tuesday, May 26, 2015
Friday, May 22, 2015
Thursday, May 21, 2015
Tom Baker & Rick Swedloff have posted to SSRN Liability Insurer Data as a Window on Lawyers' Professional Liability. The abstract provides:
Using the best publicly available data on lawyers’ liability claims and insurance – from the largest insurer of large law firms in the U.S., the American Bar Association’s Standing Committee on Professional Liability, and a summary of large claims from a leading insurance broker – this article reports the frequency of lawyers’ liability claims, the distribution and cost of claims by type of practice, the disposition of claims, and lawyers liability insurance premiums from the early 1980s to 2013. Notable findings include remarkable stability over thirty years in the distribution of claims by area of practice among both small and large firms, a large percentage of claims (64-70%) involving de minimus expense (less than $1000) in the small firm market, and in the large firm market a declining rate of “real claims” per 1000 lawyers, a declining rate of real average gross loss per claim, and stable real premiums per lawyer since the early 1990s. Because of data limitations, however, these results cannot be confidently generalized. Further advances in the understanding of lawyers’ liability and insurance will require qualitative research.
Wednesday, May 20, 2015
Tuesday, May 19, 2015
Monday, May 18, 2015
A Louisiana appellate court has held a 1983 chemical spill does not constitute a continuing tort that tolls the statute of limitations. The court also held CERCLA does not preempt the state statute of limitations. Ned v. Union Pac. Corp. is discussed at JD Supra.
Friday, May 15, 2015
William Sage is lead author on a study of nondisclosure agreements in med mal settlements. Using the Texas closed-claim database, the authors determined nondisclosure clauses were included in 88.7% of settlements. This is not surprising to me, but the authors also concluded the clauses were broader than necessary to protect the doctors and hospital, and even broader than needed to avoid attracting other claimants. Monthly Prescribing Reference has a story, with links to the study.
Thursday, May 14, 2015
Aaron Twerski & James Henderson have posted to SSRN Drug Design Liability: Farewell to Comment K. The abstract provides:
Half a century ago the reporter for the Second Restatement of Torts, William Prosser, drafted Comment k to § 402A, defining the liability of drug companies for defective prescription products. Prosser’s attempt to shelter drugs from design defect liability has confused courts and commentators alike. Courts at first interpreted Comment k to immunize drug manufactures from design-based liability; more recently, a growing number have begun to interpret the Comment to allow such actions. However, there is wide disagreement regarding the conditions under which courts should permit drug design claims. Courts have articulated no fewer than eight different tests, all relying on Comment k. This article examines the historical origins of Comment k and explains why it has confused so many judges and academics. The authors argue that the tests adopted by courts in reliance on Comment k are seriously flawed. In its stead, the article advocates that a drug manufacturer should held liable for defective drug design only when the drug is not fit for use by any class of patients. All other drug-related claims should be based on findings that the drug either contained a manufacturing defect or was marketed with inadequate warnings.