April 26, 2008
Med Mal Reform in Tennessee
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.
April 25, 2008
Levin: Tort Wars
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.
Reflections on Changing Textbooks
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.
April 24, 2008
Congratulations to Dan Dobbs
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.
Risks at Basketball Games
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.
April 23, 2008
Lawsuit Climate 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].
GAO Report on FDA: Recent Initiatives Have Potential But Weaknesses Remain
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.
April 22, 2008
Happy Earth Day!
FDA Traces Tainted Heparin In 11 Countries to China
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."
April 21, 2008
Crocs and Escalators
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.
Ten Half-Truths About Tort Law
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?