March 17, 2007
"Genuine Tort Reform" at RWU
Roger Williams is hosting a symposium on "genuine tort reform" on Friday, April 20. What exactly that means is a little unclear, though it seems to be in contrast with most of what's called "tort reform" today:
For decades, the term "tort reform" has been used by those who wish to curtail the civil justice system. Eight of the nation's most prominent scholars (from Cornell, Duke, Ohio State, Wisconsin, and Yale, among others) will suggest proposals for improving the tort and civil justice systems. In addition, two other prominent scholars join members of the Roger Williams faculty to critique the proposals.
(Noted by the Mass Tort Litigation Blog.)
Ataxia Adventures: Clincial Trials
(Bear with me on this - it will get torts-related, I promise.)
My father suffers from Spinocerebellar Ataxia, which is a neurodegenerative disorder -- i.e., parts of the brain degenerate and stop working properly. In his case, it causes balance trouble and problems with things he does by rote -- not things like breathing or involuntary reflexes, nor his ability to reason, think, etc. but things like walking or talking, especially about subjects he knows very well. His two surviving brothers also appear to have it, and the best evidence is that his father did as well.
It is almost certainly genetic, though the specific genetic marker for his version has not yet been identified. And so I have a strong likelihood (probably 50%) of having it as well. It typically presents in one's fifties. Nobody in my generation has reached that age as yet, and nobody has presented symptoms that we know of.
There is presently no known treatment, nor much understanding of its cause, and presently, if it's not one of the ones for which they know the genetic marker, the only way they can diagnose it is by examining parts of the brain microscopically.
Today I received a letter from a physician I've seen at the Massachusetts General Hospital who is one of perhaps a dozen of the top experts in the field. He is conducting a research study, "Can the Arginine Challenge Test Distinguish Cerebellar-Type Multiple Symptoms Atrophy (MSA-C) from Other Forms of Cerebellar Ataxia?" and the letter invites me to participate. I am inclined to do so. And since medical studies are a fairly frequent item on the blog, I figured I'd document it as it proceeds.
The study will "test [my] response to the intravenous injection (given through the vein) of two different drugs that cause a brief surge of growth hormone in [my] blood. [Ed. note: Good thing there are no tests for performance-enhancing drugs for law profs.] The two drugs that [I] will be given, R-gene 10 and Geref, are both approved by the [FDA] for the diagnosis of Growth Hormone deficiency. No experimental treatment or devices will be used in this study."
The letter also notes that I "may not receive any personal health benefits as a result of your participation in this research study," though I will get $100 and free parking. The letter discloses no risks, though I am certain there are multiple disclosure forms in my future. The letter also emphasizes that participation is not required for keeping the doctor as my physician and that choosing not to participate will have no effect on my treatment at Mass General.
More to come as it proceeds.
March 16, 2007
Overseas Contingent Fees
(Hey, that rhymes.)
Tony Sebok (Brooklyn, but soon to be Cardozo), has a thorough and helpful Writ piece exploring the recent German Constitutional Court decision holding that "under certain narrow circumstances, there was a constitutional right to be able to bring a civil action by means of a contingency fee contract with a lawyer." It includes a useful explanation of the lawsuit-financing companies that exist in Germany.
As he points out, it will be an interesting experiment to follow.
March 15, 2007
Torts & Presidential Politics: McCain
This series may end up being a bunch of rather short posts if these initial ones are any indication.
(My final four, based on watching exactly zero minutes of college basketball and spending fewer than ten minutes on research: Wisconsin, UCLA, UNC, Ohio State, with UNC beating Wisconsin in the championship. McCain requires registration to see his picks, but he evidently picked all four number 1 seeds to make it to the final four.)
Torts & Presidential Politics: Obama
It does seem rather early to be worrying about presidential politics, but since roughly 3,000 candidates are out there already, it seems like a fair time to take an early look. So this is the first in an occasional series of posts looking to see what the various candidates have on their websites about issues relating to tort law. I assume that most candidates have a position paper on most of the relevant issues available on request; that's not what I'm looking for. I'm looking to see if they consider the issue important enough to have online.
(As an aside, I don't know that I think that tort issues are even in my top 10 issues for presidential candidates, so their absence from a candidate's website isn't particularly concerning to me. But it's still an interesting question.)
Today: Barack Obama and his website. The site has nothing that I can see directly on point, though it does have a healthcare page. A half-dozen posts on the site reference tort law, but so far as I can tell, they're all on "my.barackobmama.com" subdomains -- i.e., blogs of supporters or others and comments thereon.
Elsewhere, Obama has been quoted as stating in 2004 that "Anyone who denies there’s a crisis with medical malpractice insurance is probably a trial lawyer." The cited source is no longer an active URL, but here [PDF] is the new location for the same bulletin, and sure enough, it says that.
Update: I should have originally noted that I've previously posted about a bill that Obama and Clinton cosponsored that sought to encourage apologies and remedial measures after medical mistakes.
March 14, 2007
Debate on Williams
Point of Law is featuring a debate on the Supreme Court's punitives caselaw (focusing on Williams, but not exclusively). The participants are David Wagner (Regent) and Michael Krauss (George Mason).
March 13, 2007
Speaking of broadening the law of nuisance (honest, I was), here comes a new posting on SSRN (published in 2001 in the Emory Law Review) from John Copeland Nagle (Notre Dame) on "moral nuisances." The abstract:
Nuisance law provides a remedy for activities that substantially interfere with the use and enjoyment of one's land. Most nuisance cases today involve environmental pollution or unwanted noises, sights, or smells. Historically, though, nuisance law had a much broader application that regulated brothels, saloons, and gambling parlors - what I call moral nuisances.
I articulate a theory of moral nuisances that applies when (1) a substantial and legally cognizable interference with a landowner's use or enjoyment of his or her land is caused by (2) an action that is regarded as immoral by a reasonable person within the community (3) whose harm outweighs the benefit of the offending conduct, and (4) which is not protected by the law. A moral nuisance claims is even stronger when (5) the activity is not only immoral, but illegal as well. This article illustrates the application of this test by using the example of Mark v. Powers, a 1999 Oregon state court case which held that a state wildlife area that was used as a nude beach constituted a nuisance to the neighboring landowners.
This article also considers the harms that may be remedied by nuisance law. A nuisance case can be premised on the sight of an offensive activity, the inability to use one's property because of the embarrassment caused by the activity, reasonable fears, or any more general interferences – such as excessive noises or physical harassment – with the plaintiff's use of his or her property. The mere awareness of the activity, any improper temptation produced by the activity, and reduced property values are not sufficient to establish a nuisance.
March 12, 2007
ABA Journal on Tobacco Settlement
This month's ABA Journal has a lengthy article about "how greed, hubris and high-stakes lobbying laid waste to the $246 billion tobacco settlement."
And the website also has a piece addressing the practical implications (or lack thereof) of the Williams case.
"Come to the Dark Side..."
Interesting WSJ piece (rerun in the Baltimore Sun) about defense firms taking occasional contingent fee work, framing the story with a discussion of Faegre & Benson's plaintiffs' work in the Exxon Valdez case. I summered at Faegre and recall even then the general anticipation of the eventual fees...which look like they may finally be coming.