Thursday, September 18, 2014
Wednesday, September 17, 2014
Steve Hedley (University College Cork) has posted to SSRN Obligations: (Local) Politics or (Universal) Reason?. The abstract provides:
Obligations is both a local institution, influenced by politics, and a universal institution, influenced by reason. It is a distraction to ask which vision should be allowed to predominate: neither truth should be allowed to obscure the other. The real question is how best to accommodate both. This paper approaches the question by comparing two very different descriptions of private law: Ernest Weinrib’s "The Idea of Private Law" (a universal description not expressly tied to any legal system, beyond that it is based on the common law) and Merkin and Steele’s "Insurance and the Law of Obligations" (which is explicitly tied to the legal system of England/Wales). While there are considerable differences between the two (and I imagine that neither approach seems to value the other very much) there are also some surprising similarities between them, raising questions as to the proper perspective from which to describe private law.
Tuesday, September 16, 2014
John Oberdiek (Rutgers-Camden) has posted to SSRN Introduction: Philosophical Foundations of the Law of Torts. The abstract provides:
This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters. Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.
The First District Appellate Court of Illinois determined the City of Chicago owed no duty to a pedestrian who broke his foot in a pothole that was a few inches outside of a crosswalk. The pedestrian was apparently straddling the line, partially in and partially out of the crosswalk. The court applied settled law that municipalities have a duty to keep streets reasonably safe for pedestrians only in those areas in which pedestrians are permitted to walk. The National Law Review has the story.
Monday, September 15, 2014
In April 2012, a woman was taken to an ER and voluntarily admitted based on a suicide attempt. She later slipped out of the hospital, walked through the woods, and rolled into traffic on a nearby bridge. She was struck and killed by a car; a father was driving and his (then-juvenile) daughter was a passenger. The father and daughter filed suit against the hospital for emotional distress. The trial judge held the hospital had no duty to the plaintiffs based on a lack of foreseeability. The Superior Court affirmed the judge's decision. Now the Pennsylvania Supreme Court has refused to consider the appeal. Pennlive has the story.
A new USC Dorsife/LA Times poll found support for Prop 46 " a mile wide and an inch deep." When likely voters were polled on Prop 46, 61% supported it, 29% opposed it, and 10% were undecided/refused to answer. When those surveyed heard both sides' main arguments, the numbers shifted to 37% in support, 50% opposed, and 12% undecided/refused to answer. The LA Times has the story.
Thursday, September 11, 2014
The AALS Torts & Compensation Systems Section has announced that Mike Green (Wake Forest) will receive the 2015 Prosser Award. From the announcement:
The first of about 6,000 Pinnacle metal hip poisoning trials is underway, and plaintiff's lawyer Mark Lanier is producing e-mail evidence designed to show Johnson & Johnson knew of the concern as early as 2001. Plaintiff claims that the Pinnacle hip's design is flawed: the metal-on-metal version of the artificial hip produces debris in the body that can cause metal poisoning. Johnson & Johnson reached a $2.5B settlement last year on another line of its artificial hips known as ASRs. Bloomberg has the story (via Conk/Torts Today).
Wednesday, September 10, 2014
Last week, the Third Circuit revived a fraud claim alleging BASF Catalysts, Inc. took part in systematic fraud with the help of its attorneys Cahill Gordon & Reindel to hide the existence of asbestos in its products. The case has been remanded for further proceedings. The Washington Examiner has the story.
Tuesday, September 9, 2014
On September 24, the Mississippi Supreme Court will hear oral arguments in a case to determine whether the 2004 non-economic damages cap of $1M is unconstitutional. Circuit Judge Charles Webster so held in a 2011 case seeking damages for the death of a child in an apartment complex fire. The jury awarded the child's parents $6M in non-economic damages. Webster upheld the award and struck down the cap, stating the Mississippi Constitution guarantees every citizen a remedy for an injury done to his lands, goods, person and reputation with that remedy to be determined by a jury. The Miami Herald has the story.
Monday, September 8, 2014
The Texas Supreme Court has ruled that a court can order an author to delete a defamatory post, but cannot prohibit the author from reposting the statements because that would be an unlawful prior restraint of free speech. The deletion remedy is novel. The Texas Lawyer has the story.
Friday, September 5, 2014
I confess I haven't kept up with Georgia's plan to replace med mal with a system similar to workers' compensation. Because both physicians' and trial lawyers' groups opposed SB 141, I assumed it was dead. This September 3rd editorial from the Columbia County News-Times indicates that some supporters have not given up.
Thursday, September 4, 2014
Marc Rodwin (Suffolk) & Justin Silverman have posted to SSRN Why the Medical Malpractice Crisis Persists Even When Malpractice Insurance Premiums Fall. The abstract provides:
Concerns that medical malpractice premiums continue to grow unabated has led to numerous proposals to change liability rules and reform tort laws. Not only would proposed legislation make lawsuits more difficult for plaintiffs, but the bills do not address the real source of the problems they intend to solve. Premiums are not rising as claimed and even if they were, other factors are contributing to the plight of physicians. But in fact, the claim that malpractice premiums are an unbearable burden for most physicians is myth, not fact.
The first section of this article will examine how this myth began and the proposed legislative remedies it spawned. It will show that junk data has been used to support legislation and it will then introduce more reliable data bearing on these issues. Next, this article will describe other factors that are rarely mentioned but that have important effects on the cost of medical practice and physician income. If doctors are truly closing up shop, it’s not because of malpractice insurance premiums. This article will then examine one AMA-declared “crisis state” to see if there are indeed crises in some selected states, even if there is no crisis nationally. As will be explained, there are not. The study of individual states reveals that there are premium cycles, that recent premium increases reflect these cycles, and that rates will probably fall as they have in the past following an increase. Finally, this article will offer insight into why physicians continue to perceive a crisis despite the data presented and what the future may hold for reform.
Wednesday, September 3, 2014
Todd Brown (Buffalo) is chairing a conference entitled "Recent Developments in Tort Law and Practice" with Kenneth Feinberg as the Gerald S. Lippes Lecture Speaker. The conference is October 6, 2014 from 8:45 until 5:00 at the Hyatt Regency Buffalo. Registration is here. The schedule:
7:30 a.m. Conference and keynote registration begins
8:45 –10:00 a.m. Breakfast and Gerald S. Lippes Lecture featuring Kenneth R. Feinberg. Mr. Feinberg is an attorney who has overseen the payouts of billions of dollars to the victims of the September 11 Victim Compensation Fund, the BP oil spill, and the Boston Marathon bomb victims, among other highly visible settlements.
10:20 – 11:20 a.m. Aggregation and Disaggregation in Mass Torts: Panelists discuss the recent trend in some mass tort MDLs away from global settlement in favor of individual claim litigation and settlement in state court.
11:30 a.m. –12:15 p.m. Lunch
12:15 – 1:30 p.m. Judges from New York City and Western New York discuss their experience with asbestos litigation.
1:40 – 2:40 p.m. Asbestos Litigation in New York: Panelists discuss legislative reforms at the state and federal levels and recent changes to asbestos practice in NYS courts.
2:50 – 3:50 p.m. Update on the RAND ICJ Asbestos Bankruptcy Project: Early findings from the RAND study on the impact of the bankruptcies of asbestos defendants on asbestos litigation in state court, with commentary from panelists.
4:00 – 5:00 p.m. The Past, Present and Future of the New York “Scaffold Law”: A detailed examination of New York’s unique approach to strict liability in construction accident cases, including the origins and evolution of the law in recent years.
5:00 p.m. Reception. Sponsored in part by the SUNY Buffalo Law Alumni Association.
John Goldberg (Harvard) has posted two pieces to SSRN. First up is Inexcusable Wrongs. The abstract provides:
Tort law has little patience for excuses. Criminal law is more forgiving — it recognizes nominate excuses such as duress and provocation, as well as innominate excuses that temper punishment. Excuses are also commonplace in ordinary morality. Like criminal law and morality, tort law seems concerned with holding persons accountable for their wrongs, and excuses seem to go hand-in-hand with accountability. So why — or in what sense — are torts inexcusable wrongs?
This Article explains how tort law, understood as law that enables victims to hold wrongdoers answerable to them, cogently can refuse to recognize excuses. In doing so, it offers a unified account of many of tort law’s core features, including the objectivity of negligence law’s ordinary care standard, the courts’ insistence on injury as a condition of liability, and the strictness of certain forms of tort liability. More generally, it invites us to broaden our understanding of what it means for law to identify conduct as wrongful, and for law to set up schemes for holding wrongdoers accountable.
Scholars ranging from Holmes to Posner have supposed that, when judges and scholars treat tort as a law for the redress of wrongs, they embrace primitive ideas of vengeance, or empty and sanctimonious notions of morality. This supposition is mistaken. In order to make sense of tort law, one must appreciate that it identifies wrongs and provides rights of action not in the name of vengeance or piousness, but to enable us to hold each other accountable for injuries that we wrongfully inflict on one another.
Next, co-authored with Gabriella Blum (Harvard), is War for the Wrong Reasons: Lessons from Law. The abstract provides:
In Ethics for Enemies, Frances Kamm argues that, under certain conditions, it is morally permissible for a state to launch a war for opportunistic reasons. We consider how law might shed light on Kamm’s argument. Part I addresses the application of criminal and tort law to individual acts of violence analogous to the acts of war analyzed by Kamm. It primarily argues that these bodies of law rely on a framework for determining legal permissibility that runs counter to, and perhaps demonstrates weaknesses in, Kamm’s framework for assessing moral permissibility. Part II considers the law of war. It maintains that, although modern law permits certain opportunistic acts of war, the law does so on terms that cut against Kamm’s claim as to their moral permissibility.
Tuesday, September 2, 2014
Richard Wright (Chicago-Kent) has posted to SSRN Moore on Causation and Responsibility: Metaphysics or Intuition?. The abstract provides:
This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.
However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.
Yet, Moore believes, intuitions come into conflict with metaphysics when considering omissions or other absences as causes, which is routinely assumed to be true in law and life but which Moore insists is fundamentally erroneous from a metaphysical standpoint. His insistence on this point, while admirable from an intellectual integrity standpoint, completely undermines the fundamental premise of his book -- that causation is the pervasive and dominant determinant of legal responsibility -- since omissions/absences are part of every causal chain involving human action and many not involving human action.
In this paper, I defend a specific "generalist" account of causation (the NESS account) and criticize Moore's primitivist singularist account. Along the way, I address a number of issues regarding causation and legal responsibility, including the metaphysical basis for treating omissions as causes.
Monday, September 1, 2014
There are a lot of stories on the med mal front. First, two from the MICRA fight:
An analysis from the The Fresno Bee finds that the anti-cap increase ads are misleading. Here's a taste:
But the ad goes too far by unequivocally claiming that raising the cap will increase malpractice insurance costs and that the result would certainly be higher costs for consumers. Five health economists contacted by The Bee had mixed opinions on those questions.
An editorial in the The Sacramento Bee urges rejection of the initiative, stating that the cynicism of attaching the drug-testing measure is reason enough to vote against it.
In other news, Law Firm Newswire is reporting that misdiagnosis is the most common form of med mal, surpassing surgical errors and medication mixups. This is described as surprising, but it is consistent with my memory of med mal cases in the period I practiced law.
Finally, in August, HHS ruled that all malpractice payments under state liability laws must be reported to the National Practitioner Data Base. The ruling was meant to address issues raised by recent "early offer"-type programs enacted in Massachusetts and Oregon.
Friday, August 29, 2014
Prop 46, a California ballot initiative to raise the 1975 non-economic damages cap from $250,000 to $1.1M, includes a rider: physician drug-testing. The two are joined in the "Troy and Alana Pack Patient Safety Act of 2014." Download pdf here: Download Troyandalanapackpatientsafetyactof201400202344. I'm not a fan of non-economic damages caps (though I acknowledge problems with non-economic damages). Moreover, the cap increase strikes me as an easy call. The cap hasn't been raised in 39 years and the increase is just an inflation adjustment; I ran a quick inflation calculation and $250,000 in 1975 is approximately $1.1M. I do, however, object to the compound question nature of the initiative. These are very different issues and should be considered separately. The Sacramento Bee has details.
Thursday, August 28, 2014
Nicholas McBride (Cambridge) has posted to SSRN Tort Law and Human Flourishing. The abstract provides:
This is the second in a loose ‘trilogy’ of three papers that I presented at successive Obligations conferences: Obligations V (at the University of Oxford, in 2010, on the theme of ‘Rights and Private Law’), Obligations VI (at the University of Western Ontario, in 2012, on the theme of ‘Challenging Orthodoxy’), and Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).
In this paper, I argue that giving effect to the ‘balanced approach’ to determining what rights we have that I set out in my paper on ‘Rights and the basis of tort law’ requires one to draw on a vision of what human flourishing entails, so that we can determine whether the benefit to A from finding that he has a particular right against B outweighs the burden that B will incur if we find that A has such a right against B. I go on to argue that the vision of human flourishing that underlies the law’s practice in determining what rights we have against each other is a very familiar one – one that is widely prevalent in the West and best set out in the writings of John Finnis. I go on to criticise this account of human flourishing as radically defective, and explain what difference adopting a sounder view of what human flourishing entails would have on what rights we are recognised as having against other people.
I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.
Tuesday, August 26, 2014
The Alabama Supreme Court recently denied rehearing in Weeks v. Wyeth, letting stand a holding that name-brand manufacturers can be liable for misrepresentations or failures to warn in regard to generic drugs they did not manufacture or distribute. The rationale appears to be the FDA's requirements that the name-brand manufacturer provide the material for the drug label contents. Generic manufacturers are not allowed to alter those contents. Two views of the case, one from Richard Garrett of the Alabama Policy Institute, and the other from Lew Garrison, who represented the plaintiff.