Wednesday, April 30, 2008
Listed below are the top 10 downloads for papers posted on SSRN from March 1, 2008 to April 30, 2008 in the Journal of Torts & Products Liability Law:
|1||161||The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons |
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: March 9, 2008
Last Revised: March 9, 2008
|2||109||Fault in Contract Law |
Eric A. Posner,
University of Chicago - Law School,
Date posted to database: March 17, 2008
Last Revised: March 17, 2008
|3||96||Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights |
George Mason University School of Law,
Date posted to database: April 9, 2008
Last Revised: April 22, 2008
|4||75||The Original Sense of the (Equal) Protection Clause: Pre-Enactment History |
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: March 4, 2008
Last Revised: April 18, 2008
|5||75||The Wreckage of Recklessness |
Geoffrey Christopher Rapp,
University of Toledo - College of Law,
Date posted to database: March 13, 2008
Last Revised: March 21, 2008
|6||73||Tort Negligence, Cost-Benefit Analysis and Tradeoffs: A Closer Look at the Controversy |
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: April 11, 2008
Last Revised: April 16, 2008
|7||68||The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application |
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: March 5, 2008
Last Revised: April 18, 2008
|8||66||An Article III Defense of Merits-First Decisionmaking in Civil Rights Litigation: The Continued Viability of Saucier v. Katz |
University of Denver Sturm College of Law,
Date posted to database: March 10, 2008
Last Revised: April 25, 2008
|9||60||Tort Damages |
Louis T. Visscher,
Erasmus University Rotterdam (EUR) - Erasmus School of Law,
Date posted to database: March 19, 2008
Last Revised: March 19, 2008
As noted yesterday, a federal district judge has upheld the NYC regulation requiring chain restaurants to post calorie information. The United States Court of Appeals for the Second Circuit has now lifted a stay, allowing the law to go into effect. The city, however, has agreed to delay issuing any fines under the new law until July 18th. As WNBC reports, yesterday's oral argument on the stay might have foretold at least one Judge's position on the merits:
In arguments earlier Tuesday, [Restaurant Association lawyer Kent] Yalowitz said restaurants believe federal laws pre-empted local efforts to try to regulate how restaurants describe the contents of their food. He said the First Amendment rights of restaurants protected them as well.
Judge Rosemary Pooler noted that cigarette packages contain health warnings. "If we were to adopt your view, no warnings would ever appear on anything," she said.
Tuesday, April 29, 2008
On April 16th, U.S. District Judge Richard J. Holwell upheld New York City's revised Regulation 81.50, which require restaurants to post calorie information on menus. As previously reported, Judge Holwell struck down the original regulation last September. The original regulations only applied to restaurants that already had voluntarily disclosed nutrition information to their customers. Judge Holwell concluded that the original regs were preempted by the federal Nutrition Labeling and Education Act of 1990 because the NLEA regulated voluntary disclosure of nutrition information by restaurants.
In his latest opinion, however, Judge Holwell found that the revised regulation "is not preempted by NLEA because that statute explicitly leaves to state and local governments the power to impose mandatory nutrition labeling by restaurants." Judge Holwell also rejected a First Amendment challenge by the Restaurant Association. The New York Law Journal (via law.com) has a full report on the decision.
The new regulations took effect on Monday, April 21st, and only apply to chain restaurants with at least 15 outlets across the country. WNBC reports that the Health Department will not start fining restaurants until June 1st.
On Monday, Utah Attorney General Mark Shurtleff stated that he is open to a cap on punitive damages awards.
To help improve the state's legal climate, Shurtleff said caps on punitive damage awards would, among other things, help prevent physicians from being driven from Utah by skyrocketing medical malpractice premiums, as has happened in Nevada.
"A lot of times those punitive damages awards are outrageous, and the cumulative effect, particularly when it comes to medical malpractice litigation, can create a situation like they have in Nevada," Shurtleff said.
Doctors are just leaving the Silver State because they can't afford their insurance premiums anymore, "and a big part of that is because of these horrific damage awards that are being awarded in some of these cases," he said.
Via Legal Newsline.
Monday, April 28, 2008
That's me on the right; on the left is my friend and colleague Sam Charron, assistant director of career services and public interest coordinator at the School of Law:
(Why, you ask, am I wearing a bathrobe? Good question. Read on...)
Our school's chapter of Equal Justice Works was the beneficiary of the spring auction this year. As I have with past auctions, I donated a "Tortious Tour of Six Flags," where I'll take students to Six Flags New England and discuss various incidents there as well as the safety record of the amusement industry generally (both our local park and the industry are quite good overall). A couple of my evening students went together and donated $100 for that.
But this year Sam and I also said that if students bid at least $500, we'd shave our heads in a dignified public ceremony (straight razors were expressly prohibited).
Well, they made it (actually exceeded it, raising nearly $600 on that item):
My kids are used to it and enjoy rubbing my head for luck. My wife...well, no doubt she'll look at me again someday.
The auction as a whole raised nearly $5,000 to go towards public interest stipends. That's in addition to the law school's public interest scholars' program.
Sunday, April 27, 2008
My daughter went out for sushi the other night with a friend's family (at age 9, she's more adventurous, food-wise, than I was by 25). She came home with a bottle of Ramune, a Japanese soft drink. I will try to get a picture of the bottle up later, but for now, check out Wikipedia's. What's hard to see in photos is that the bottle contains a marble, which is used to seal the bottle (the carbonation holds it in place). Before drinking, the user pushes the marble into the bottle by way of a supplied plunger; the marble then hangs out in an upper part of the bottle where one challenge is to drink the soda without the marble re-sealing the bottle. (The bottle has a little notch in the upper part that helps the user with that.)
Anyway, it struck me mostly because of all of the warnings:
- DO NOT SWALLOW THE PLUNGER. Throw it away immediately after opening.
- Adults should open the bottle for small children and supervise drinking.
- Do not try to remove the marble from the bottle to avoid injury.
- Do not freeze the bottle or store it in direct sunlight.
- Do not consume if the marble is broken, missing, or descended before opening.
I've already written my products exam this term, but there's all sorts of fun possibilities here...
Saturday, April 26, 2008
Both houses of the Tennessee General Assembly have passed a medical malpractice reform bill; it is now in the hands of Governor Phil Bredeson. The Memphis Business Journal states:
The bill will require attorneys to file a certificate of good faith to reduce the number of medical malpractice claims that end in no payment to the plaintiff. The bill will require that medical providers are notified 60 days before a medical malpractice lawsuit is filed. The plaintiff's attorney would need to get certification from a qualified medical expert that there is good cause to pursue a claim against defendants. Also, attorneys who fail to comply with certification rules will be penalized. The bill does not provide for any limits on non-economic damages.
Friday, April 25, 2008
Joel Levin (Case Western Reserve) has published Tort Wars, available here from Cambridge University Press. Levin's central thesis is that tort law is about achieving peace. I read the book as a reviewer. Whether you agree with Levin or not, the book is provocative and worth reading. Here's the official description:
Tort Wars brings together the diverse and usually insufficiently related strands of tort law and treats the moral, economic, and systemic problems running through those strands with a single analysis and theory. In that tort law employs theory at all, it is typically theory measured against notions of corrective justice or appeals to utility. Both have severe prescriptive restrictions and limited explanatory power and often stray from any useful description of tort cases in the courts. Tort Wars looks at the nature of dispute resolution techniques, criticizes the blasé justice and more esoteric utility theory, and examines the problems of both the legal academy and the veracity vacuum in the courtroom. Further, it explores the conceptual differences between tort and contract, locating contract as a subset of tort. It uses examples drawn from the edges of tort law in an attempt to measure central cases by the marginal ones and to provide a barometer of emerging legal and social change, achieved through imposing an individualized peace.
Last night, I finished teaching my (two-semester) Torts class for the third year in a row. I really love the teaching part of the job. I thoroughly enjoy the Socratic dialogue, exploring the concepts, and interacting with students. However, I'm beginning to wonder if I should change textbooks. It's not that I dislike the text I use. In fact, I think it's great. But I feel a little stale teaching the cases yet again. I know the cases are new for these students, but I worry that my familiarity with them dampens my enthusiasm somewhat. Obviously the downside to changing texts is the amount of preparation time. That time could, of course, be spent on scholarship instead. The positive points seem to include a potential for increased enthusiasm and the ability to use cases from the old text as fairly complete hypotheticals. If anyone has changed textbooks, I would appreciate hearing about your experience.
Thursday, April 24, 2008
Dan Dobbs (Arizona) is retiring after a full and influential career. The Arizona Law website has a feature "In Celebration of Dan Dobbs." Here is a sample:
Professor Dan B. Dobbs is retiring from Arizona Law in May, 2008. In five decades of writing, teaching, and practice, Dan B. Dobbs has helped shape the law of torts. He is the author of two leading treatises – The Law of Torts, and The Law of Remedies – and a coauthor of the treatise Prosser & Keeton on Torts. He has guided many casebooks to print, including five editions of Torts and Compensation Systems, the last three with co-author Paul T. Hayden. In addition, he has published more than thirty scholarly articles.
The full web page is here.
A dentist is suing the Chicago Bulls for injuries he suffered at a basketball game, not due to any of the usual game-related risks, but instead due to the mascot, Benny the Bull:
Dr. Don Kalant Sr. alleged he was sitting near courtside on Feb. 12 when he raised his arm to get a high-five from [the mascot]. . . . Instead of merely slapping Kalant's palm, Anderson grabbed his arm as he fell forward, hyperextending Kalant's arm and rupturing his biceps muscle, according to the lawsuit filed in Cook County Circuit Court.
* * *
The lawsuit claims Anderson was negligent in either "falling forward while grabbing a fan's hand" or "running out of control" through the crowd according to the Chicago Tribune.
Kalant is out of work for up to four months. I just taught assumption of risk in my final Torts class of the year last night; an interesting question whether this would be in the inherent risk category.
Wednesday, April 23, 2008
The Institute for Legal Reform has released its annual ranking of the civil litigation systems in the fifty states. The top five states, in order, are Delaware, Nebraska, Maine, Indiana and Utah. The bottom five, also in order, are West Virginia, Louisiana, Mississippi, Alabama and Illinois. The full report is available here [pdf].
In a report [pdf] released yesterday, the Government Accounting Office concluded that "[r]ecent FDA initiatives--some of which have been implemented and others proposed--could strengthen FDA's foreign drug inspection program, but these initiatives do not fully address the weaknesses that GAO previously identified." For example,
[In November 2007], GAO testified that gaps in information weaken FDA's processes for prioritizing the inspection of foreign establishments that pose the greatest risk to public health. While FDA recently expressed interest in obtaining useful information from foreign regulatory bodies that could help it prioritize foreign establishments for inspections, the agency has faced difficulties fully utilizing these arrangements in the past. For example, FDA had difficulties in determining whether the scope of other countries' inspection reports met its needs and these reports were not always readily available in English.
Tuesday, April 22, 2008
The New York Times reports that the FDA has identified 12 Chinese companies that supplied contaminated heparin (an anti-coagulant) to 11 countries, including the United States. In addition, "federal officials said Monday they had discovered a clear link between the contaminant and severe reactions now associated with 81 deaths in the United States."
Monday, April 21, 2008
Crocs (the footwear, not the amphibians) have been in my life a lot lately. My son just got some knockoffs (Croc-offs?), the station we do the kids' music radio show on is doing a fashion makeover contest themed on them, and now Above The Law has a post about the potential danger of the shoes on escalators. The Japanese government has apparently asked for a redesign to reduce the danger, and at least one suit has been filed based on injuries to a three-year-old hurt on escalator.
John Goldberg (Vanderbilt) takes on what he sees as ten items of conventional wisdom about tort law that don't stand up to close scrutiny in this SSRN posting (to be published in Valparaiso Law Review). The ten:
I. Tort is a Miscellaneous Category.
II. Tort Law is 150 Years Old, Give or Take.
III. Tort Law is Accident Law.
IV. The Life of Tort Law Has Been Experience, Not Logic.
V. Tort Theories are Either Unified or Pluralist.
VI. Tort Damages Aim to Make the Plaintiff Whole.
VII. Tort Liability Exists on a Spectrum from Strict Liability to Intent.
VIII. Settlement and Insurance Have Rendered Tort Law Obsolete.
IX. Tort Law is Common Law.
X. Torts is a Class, Not a Subject.
It's an interesting and entertaining read. What half-truths would you add?
Saturday, April 19, 2008
[W]hile the tort system is the best mechanism for resolution of the Ground Zero toxic exposure claims, it is far from perfect, and...lawmakers must give serious consideration to developing a discrete and workable management plan for toxic claims in the future.