TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, January 6, 2007

Shapo & Peltz Casebook

A note from Rick Peltz (UALR):

Shameless self promotion, but sometimes one must.  I'm naturally a fan of Shapo & Peltz (3d ed. Carolina Academic Press 2006).  I was a fan of Shapo (2d ed. Lexis) previously, which is why I signed onto it.

When I am first starting out in a new course, I like a strong TM.  I tend not to use it at all after a couple years, but it's a great security blanket from the get go.  Shapo's original TM, which we've improved, was terrific.  Packed with tidbits.

Also in Torts specially, I like to look at what cases the authors chose, because there are of course a lot of areas in which you have a good deal of flexibility, i.e., many cases from various jurisdictions that could do the job.  I like to see cases that have amusing angles, compelling facts, twists.. the sort of thing students will find entertaining reading.  I thought Shapo had a knack for picking such cases, and I have tried to keep up in that tradition.

I also like a text that is not shy about throwing in a comparative angle here and there.  Shapo included in his text various comparative references, including fascinating treatment of the new zealand comp system, which i've since learned a good deal about, and even the occasional reference to Jewish canon.

Finally something I like to see, though it is not necessarily dispositive, is that an author is supportive of his or her casebook users.  I'll usually contact an author to let 'em know I am using the book and thank them for the materials.  I have had a range from no response to very kind and supportive responses.  Shapo was of the latter sort, and I pledge to serve likewise.

Further comments on casebooks would be welcome!

January 6, 2007 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Thursday, January 4, 2007

Your Favorite Casebook?

A new Torts prof contacted me asking if I'd ever posted about the relative merits of the many Torts casebooks, and I haven't. I haven't looked at other ones seriously since 2004 (when I started), so I don't have a lot to say -- but I suspect some readers might. 

I use the David Robertson et al. book from West (I forget which West entity it is).  It's tightly-edited, well-organized, relatively short (in a four-hour course, I like covering at least half of the book to avoid annoying students), and pretty current.  Plus, the authors are responsive, which was especially important to me when I was starting out.

What book do you use?  Please post your thoughts on various casebooks in the comments.

(I'm at AALS today so comments will be approved sporadically.)

January 4, 2007 in Teaching Torts | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 3, 2007

Anarchy at AALS

Did I say anarchy?  I meant "scholarly discussions."

I spent most of today at a session on "Remedies: Justice and the Bottom Line," in particular sessions on "Aggregate Litigation: Time to Address Remedies" (with Elizabeth Cabraser of Lieff Cabraser and Sam Issacharoff of NYU) and "The Political and Policy Debate Over Tort Remedies" (with Cathy Sharkey of Columbia, Deborah Hensler of Stanford, Keith Hylton of BU, and Olivier Moreteau of LSU).

Things that caught my eye enough to write them down:

Sam Isaacharoff provided his top ten remedy issues related to aggregate litigation, based in part on his work as reporter for the ALI's efforts on aggregate litigation.  Here's my list of them, with an emphasis that I may have specifics incorrect - I didn't get a copy of his presentation.

1. Contractual waiver of class action membership, often joined with arbitration clauses.  He referred to this as the “dark side of ADR.”

2. In what he called the "good side of ADR," he discussed a Second Circuit case, In re Nassau County Strip Search.  In a case where the county apparently allowed semi-public strip searches of prisoners, the county stipulated liability but said, cleverly, that the stipulation knocked out potential class claim – because all that was left was damages, which were individual by their nature. That stipulation, according to the county, necessarily knocked out the necessity of class notice.  The Second Circuit disagreed, allowing a class notice, implying that they assumed there would be a semi-class-based ADR worked out in the future, justifying the class notification process.

3. Issue classes.  In particular, the issue of what happens to merits evaluations when a class is decertified later.

4. Relationship between class action as litigation-inducing mechanism and statutory liquidated damages as litigation-inducing mechanism.  Combining classes and presumed or liquidated damages can cause troubles.  Both are set up to encourage litigation even in low-value cases, but if you combine them, you end up getting too-large damages, from an incentives perspective.

5. Cy pres & fluid remedies, with a cottage industry developing of nonprofits seeking a chunk of damages even when completely unrelated.

6. Mass cases where the only evidence is epidemiological where it is clear that some increased number of people suffered a particular harm due to exposure to the product, but when individual causation is impossible.  Various proposals, including allowing damages to be discounted by the percentage likelihood that the particular harm was caused by the product.  That obviously runs straight into the tradition of individualized causation proof and litigation.

7. Collateral attack – what is the scope of challenge to a final settlement?  The issue here, obviously, is getting finality for litigants.

8. Increased use of MDL class-like mechanisms (e.g., Wienstein in Zyprexa).

9. CAFA, setting up funny role for state courts as a place to park collusive settlements.

10. Aggregate settlement rule, based on ABA model rules, which provides that client must have right to approve any settlement at any time, and that client can give right to negotiate, but can never be irrevocable.  Causes trouble for mass settlements due to holdouts.  Suggestion was to allow more of that to be contracted for at the start of representation, as a tradeoff for the increased value of having a firm who has lots of the same type of case.

The remedies reform session was also really interesting but harder to summarize.  I missed the first part (where Hensler spoke). Much of the rest of the discussion -- in particular Hylton's discussion -- focused on the law & economics aspects of punitive damages, addressing the Williams case in particular.  If I can make sense of my notes, I'll try to write more on it later.

(Thanks to West for the lunch for network bloggers!)

January 3, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 1, 2007

Wii Warnings!

Recall the Wii recall and the related lawsuit. Well, thanks to my brother who evidently wished to ensure that I stay up late shooting bunnies for every day of my vacation, I can report the following:

  1. The interface for the Wii is unbelievably cool, genuinely accessible to everyone from, say, age 4 up.
  2. The games are fun and addictive (in addition to Rayman, they brought Wii Sports).
  3. I can see how the strap would be insufficient and how, in particular with games like the bowling game, damage could occur.
  4. The system is chock full o' warnings. In addition to the reminders to clear furniture, people, etc., from the region, it also periodically says "Why not take a break?" and describes how to pause the game.  It also tells you, daily, how much time you spent playing which games, which can help suggest that you might be overdoing it.
  5. Did I mention that it's really fun?  It is.

January 1, 2007 in Products Liability | Permalink | Comments (0) | TrackBack (0)

New & Improved!

The LawProf blog network has a bunch of new features you can see over on the right (below the ads):

1.  A link to the Network’s new blogroll page which lists the last five posts from every Network blog. See   

2.  Improved syndication for all blogs using FeedBurner, which allows blog readers multiple options to subscribe to web-based news readers plus email option, and FeedBlitz, which offers an email-based RSS feed subscription service;   

3.  A blog-specific search engine using Technorati search engine technology; and   

4.  Automated display of each blog's Topical Archive in the right sidebar so that the establishment of new categories will appear once they have been used to tag a post. 

Posting may still be sporadic through AALS, but then I'll be back on the usual daily schedule, with the site's 50,000th visitor coming probably in the next week or so.

Happy new year, all!

January 1, 2007 | Permalink | Comments (0) | TrackBack (0)