Saturday, April 7, 2007
This week's issue of The Nation has two items about stories I've discussed previously, both, unfortunately, subscription only but no doubt available in your library.
First up is a piece by David Rosner and Gerald Markowitz about the Rhode Island lead paint nuisance case. Rosner and Markowitz are both historians and both served as expert witnesses for the plaintiffs; their book Deceit and Denial criticizes the conduct of the lead and vinyl chloride industries. The discovery into the peer review of that book was the main example I use in my forthcoming Nebraska Law Review piece. Their article acknowledges that it is new to treat matters like lead paint through the law of nuisance, and outlines varied bad conduct on the part of the manufacturers, but in so doing suggests that the lawsuit required bad conduct. Public nuisance, however, is generally a fault-free doctrine as compared to classic tort cases. Rosner and Markowitz do note their role as experts but do not note whether or not they were paid experts.
Second is an interesting column by Patricia J. Williams called Colorstruck, addressing the recent "wrongful birth" lawsuit brought by New York parents against a fertility clinic for using sperm from an African-American father rather than that of the father, Thomas Andrews. Her conclusion (but the whole thing is well worth reading):
I might have consigned all of this to tabloid sensation had I not had conversations in recent days in which this case came up. Well-educated legal minds of all political stripes were arguing that there's nothing wrong in the parents' claim, that it's a private choice they made to have a family that looks "like" them and that they should get some money for the girl's "trauma" since, after all, it is harder to be black in this society. Some of the people arguing this have previously argued against affirmative action because our society is supposedly colorblind. Just look at Angelina! If this dreamy reasoning is any reflection of the culture at large, then its logic signals a privatization of civil rights: Discrimination is no longer a social problem that implicates all of us and our institutions as unloving or uninclusive. Discrimination becomes destiny, the normative response to biologized "abnormality."
It is ironic. There is a bill in the Georgia state legislature to make April Confederate Heritage Month. Not Southern heritage, but Confederate. Whatever romance that term may conjure in the collective imagination, it's important to remember that the Confederate Constitution was almost identical to that of the United States. The only significantly different provision was one that said: "No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves shall be passed." In an era when none of us are slaves but all of us are increasingly objects in the marketplace, it is sad and alarming that "Negro" features, however arbitrarily perceived or shiftily delineated, still lower the value of the human product, of human grace.
Friday, April 6, 2007
The Consumerist blog has posted a pretty amazing (and somewhat disturbing) ad for the safety benefits of asbestos. On the one hand - wow, that's pretty weird. On the other - it suggests either remarkable denial (quite possible!) or a genuine belief in the wonders of the product. It's a reminder of a time in which asbestos was really considered very nearly a miracle. (Of course, lots of the fights are over precisely when it became clear that it was not a miracle but instead a disaster.)
In what will no doubt affect the tort litigation, ComAir has acknowledged some level of fault in the Kentucky crash in August, but also says that better safety systems at airports could have avoided it. The acknowledgment, in a regulatory filing, is a nice example of the interaction of regulatory and litigation schemes.
Thursday, April 5, 2007
The title of Frank Capra's classic 1946 movie seems to encapsulate a fundamental all-American conviction. Unsurprisingly, it has been applied by several courts and jurists as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants will answer in the affirmative, whereas Capra's aphorism makes a compelling counterargument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths; so neither may ever prevail. Having no satisfactory solution within conventional wisdom, the life-as-injury debate may be regarded as the Gordian knot of tort law. The purpose of the Article is to cut, rather than untie the knot: Allow the child to recover, without challenging or validating the deep-seated perception of life.
Part I shows that the hostility to liability in tort for wrongful life is almost a universal phenomenon, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability - logical and practical - to establish “harm” under the traditional definition of this term. Part III opines that since the Gordian knot of tort law cannot be untied it must be cut altogether. The traditional framework, giving rise to an insoluble problem, should be replaced with a more promising contractual framework, inspired by the celebrated case of Hawkins v. McGee. In my view, the child's action may be based on the claim that the defendant promised her parents that she would be born without a certain defect, and that the promise was not fulfilled. In formal terms, the child is an intended third-party beneficiary of the contract concluded between her parents and the consultant, in which the latter warranted that she would not be born with a particular disability. The warranty of the future child's physical integrity and health, being an integral and inseparable part of the contract, should form the basis of her cause of action.
Wednesday, April 4, 2007
The Pump Handle has a post discussing the expected recess appointment of Susan Dudley, head of regulatory studies at George Mason University's Mercatus Center, to fill the lead position at the Office of Information and Regulatory Affairs (OIRA). OIRA has been at the front of many of the Bush administration's efforts to change regulatory schemes and the nomination is, to say the least, controversial, no doubt made more so by bypassing congressional approval.
Tuesday, April 3, 2007
My Nebraska Law Review piece (which should be out any day now, honest) addresses discovery into peer review, exploring a case related to vinyl chloride litigation. There's been another recent confrontation about the issue relating to welding rod litigation, with an article (subscription only for full text) written by researchers who had performed work for plaintiffs criticizing the potential for litigation to interfere with research.
One of the defense lawyers involved has responded (with a reply from the researchers below it). For the reasons I present in my article, I generally think the discovery sounds reasonable. (An earlyish draft is here.)
I'm not going to say much about it since I'm involved in other Cox-2 litigation, but coverage of the new Pfizer ads for Celebrex certainly are interesting, as is the ad itself. The ads are 150 seconds long, with the risk fair balance content first and rather specific, expressly referencing death as a potential side effect of any NSAID.
Sunday, April 1, 2007
The Becker-Posner blog is featuring a discussion on the recent Jackpot Justice study. Well, right now, it's just got Becker's post that appears to be in response to a Posner post that I don't yet see up. But presumably Posner's post will show up eventually. (Edit: It did and is linked to at the end.)
Becker, after agreeing with Posner's apparent statement that the study overstates costs, advocates for a rebuttable presumption of caveat emptor and a limitation of punitive damages to, generally, four times compensatory damages. He also discusses forum shopping but concludes that ultimately it probably increases predictability.
As for the study, I still haven't had a chance to sit down with it with any care, but continue to be underwhelmed by their decision to compare U.S. tort costs with those of other industrialized countries and declare any difference to be excess. One could quite rationally conclude that greater costs were worthwhile in having the system we have; similarly, other countries may have chosen to pursue similar goals through different systems (i.e., greater regulatory state power or stronger criminal penalties). Those countries' increased spending on other regulatory schemes wouldn't necessarily be "excess" any more than increased tort costs are "excess" here.
I do, it should be noted, think that there are significant excesses in the U.S. system. But I don't think that comparison is particularly useful.
Update: Posner's post is now up here, and sure enough, he finds the study to be questionable in substantial parts.