Saturday, April 12, 2008
Friday, April 11, 2008
Eric Claeys (George Mason) has posted Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights on SSRN. Here's the abstract:
In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.
The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when "tort" was forming into a single field of legal study. The "Jeffersonian" natural-rights theory predicts the contours of doctrine more determinately and accurately than "Coasian" economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis - its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.
The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort - to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.
Thursday, April 10, 2008
Via ATL, Reuters reports that the victim of an alleged battery by one "Yayo," apparently a friend of 50 Cent and member of his hip-hop group, has sued both the rapper and his label for promoting a violent lifestyle.
In related news, I am contemplating suing all organizers of science fairs for causing me to be nerdy and, thus, the obvious target for junior high beatings. Sound good?
The lawsuit actually may not be quite that crazy (though it's still pretty crazy, at least as reported) -- keep in mind that Yayo allegedly was part of Fitty's group and, according to the suit, "The members of G-Unit, including defendants Yayo and 50 Cent, encouraged, sanctioned, approved and condoned its members threatening violence, and or engaging in violent acts in furtherance of its business." That last bit -- "in furtherance of its business" -- may be the link that gets it to potential vicarious liability rather than being the "media makes people mean" argument. And the suit alleges that the battery was triggered by the victim wearing a shirt for a rival group. Was it in furtherance of the employer's interests?
Consumerist has a post (based on a WSJ piece) about the second life of thirty years of videos made for Wal-Mart. The company that did the work evidently retained the rights (oops on Wal-Mart) and Wal-Mart declined to pay as much as the company asked. Now the company is selling access and it's helped at least one plaintiffs' lawyer:
Plaintiffs attorney Diane M. Breneman stumbled across the videos while working on a lawsuit she filed in 2005, on behalf of a 12-year-old boy, against Wal-Mart and the manufacturer of a plastic gasoline can sold in its stores. Her client was injured when he poured gasoline from the container onto a pile of wet wood he had been trying to light, and the can exploded. The lawsuit alleges that the containers are unsafe because they don't contain a device that prevents flames from jumping up the spout and exploding.
Wal-Mart's lawyers have argued in court filings that the retailer couldn't have known that the product "presented any reasonable foreseeable risk...in the normal and expected use."
* * *
Ms. Breneman says Flagler Productions located videos of product presentations to Wal-Mart managers in which executives gave parody testimonials about the same brand of gasoline can. In an apparent coincidence, one manager joked about setting fire to wet wood: "I torched it. Boom! Fired right up." In a separate skit, an employee is seen driving a riding lawn mower into a display of empty gasoline cans. A Wal-Mart executive vice president observing the collision jokes: "A great gas can. It didn't explode." The tapes were made before the lawsuit was filed.
Ms. Breneman argues the footage provides evidence that the retailer could have foreseen the risk that customers would use the gas cans when starting fires. She says she plans to ask the Kansas City, Mo., federal court handling the case to allow the footage to be used as evidence. Wal-Mart's lawyer on the case didn't return calls seeking comment.
Last year, Oklahoma's governor vetoed legislation that would have changed various things in that state's tort system -- capping noneconomic damages at $300K, requiring clear and convincing evidence of intentional conduct or gross negligence for punitive damages, etc. There's more about the veto in this post.
Well, it's back. And presumably it has the same fate; it seems at least plausible that this being an election year has just a little to do with its reintroduction.
Wednesday, April 9, 2008
The Washington Post reports that the FDA has increased its estimate of fatalities from contaminated heparin to 62.
The posting said that the reports of allergic reactions or low blood pressure after the administration of heparin do not mean the drug was the cause of death "in all cases." But the agency provided comparison statistics showing that in 2006, three people were reported to have died following allergic reactions to heparin.
In addition, FDA's month-by-month count of adverse-event reports involving heparin showed that 47 of the 62 deaths associated with allergic reactions occurred from November through February.
The Legal Intelligencer (via law.com) reports on a decision filed yesterday by the United States Court of Appeals for the Third Circuit holding that claims that the manufacturers of Paxil and Zoloft failed to warn of a risk of suicide were preempted. The court issued a narrow decision based on the fact that the FDA expressly had refused to order the very suicide warnings that plaintiffs argued were necessary:
"We do not decide whether the FDA's mere approval of drug labeling is sufficient to pre-empt state-law claims alleging that the labeling failed to warn of a given danger," Sloviter wrote. Likewise, Sloviter said, the court would not address "whether FDA approval of drug labeling constitutes minimum standards in the absence of the FDA's express rejection of a specific warning."
On the narrow question, Sloviter found that since both plaintiffs were suing over warnings that the FDA had explicitly refused to order, their failure-to-warn claims "conflict with, and are therefore pre-empted by, the FDA's regulatory actions."
Beck & Herrmann have a break-down of the decision's "high points." Judge Thomas L. Ambro dissented from the majority opinion.
In this week's Writ column, Tony Sebok discusses the Second Circuit's recent decision in McLaughlin v. American Tobacco, which reversed Judge Weinstein's certification of the "light cigarettes" class action. The plaintiff class were individuals who had smoked "light" cigarettes. Plaintiffs alleged that the tobacco industry has known for years that "light" cigarettes are not safer than regular cigarettes. Thus, plaintiffs brought (essentially) a consumer fraud claim against the tobacco companies because "the seller promised one thing (a safer cigarette) and intentionally delivered something else (a cigarette that was not, in fact, safer)." Judge Weinstein originally had certified the class action back in 2006. Unsurprisingly, the Second Circuit has now reversed.
In his column, Sebok analyzes the Second Circuit's decision, and offers his predictions as to the decision's effect on consumer fraud class actions generally. I previously have written on the issue of reliance in consumer fraud class actions: The Consumer Fraud Class Action: Reining in Abuse by Requiring Plaintiffs to Allege Reliance As An Essential Element, 43 HARV. J. LEGIS. 1 (2006). In this article, I argue that requiring reliance for the resolution of private suits creates the correct balance of individual justice and deterrence.
Tuesday, April 8, 2008
In an article yesterday, Forbes reports on "The Worst Places to Get Sued in America." Forbes asked the American Tort Reform Association, which compiles an annual listing of "judicial hellholes," to compile "the worst possible places to be a defendant in particular types of lawsuits":
Hit with a personal-injury lawsuit? Better hope it's not in Starr County, Texas. Class actions? Hopefully you won't find out why John Grisham sets so many legal thrillers in Mississippi. Construction suits? Building's not the only thing booming in Clark County, Nev. And journalists hoping to avoid libel suits may wish to avoid courts in Philadelphia, according to ATRA's report for Forbes.
[Cage's lawyer] said all the defandants apologized to Cage and will pay all of Cage's legal costs. Smith said they will also make a substantial donation to a charity chosen by Cage - The National Adult Protective Services Foundation, which benefits victims of elder abuse.
Cage will not be filing suit in the U.S. "because the publisher is adding a correction statement to future books sold here."
Monday, April 7, 2008
I just returned with three of our students from the Rendigs Products Liability Moot Court Competition in Cincinnati, Ohio. The competition, run by the University of Cincinnati College of Law, is now over twenty years old and is a terrific event. Congratulations to the winning team (from South Texas) and to all competitors, especially the WNEC team, which did excellent work throughout. Torts profs looking for a moot court competition to participate in should consider this one seriously; it's very well-run.
The problem [PDF] this year is a good timely one, based on the diacetyl in microwave popcorn, raising compelling questions of duty, foreseeability, breach, and (in the secondary issue) personal jurisdiction.