Saturday, July 19, 2008
In May, I discussed a potential privacy claim (in the abstract) based on surreptitious taping of consensual sex. Now suit has been filed, alleging not only invasion of privacy but infliction of emotional distress. Stay tuned.
Friday, July 18, 2008
Economic loss is moving to the forefront of tort discourse on both sides of the Atlantic. A Council draft of the Restatement (Third) of Torts: Economic Torts and Related Wrongs is being appraised and discussed by prominent American tort scholars, and European academics are seeking common ground regarding liability for economic loss in the European Union. The time may well be ripe to focus on an unexplored, perhaps unnoticed, mystery in the common law of torts: the consequential/relational economic loss dichotomy. Consequential economic loss is economic loss that stems from physical injury to the plaintiff's own person or property. Relational economic loss is purely economic loss that stems from physical injury to the person or property of a third party, or to an ownerless resource. The difference between the two may often seem normatively immaterial, but it has far-reaching implications in tort law. This Article endeavors to unveil the political--redistributive--underpinning of this perplexing legal distinction.
Part I shows that while all common law jurisdictions have allowed recovery for consequential losses without much hesitation for centuries, most of them have been reluctant to impose liability for relational losses.
Part II identifies the various reasons given by courts and scholars for the consistent unwillingness to impose liability for relational losses. It shows that these reasons are equally applicable to consequential losses, inapplicable to most cases of relational loss, or fundamentally flawed. The inevitable conclusion is that the law should treat consequential and relational losses similarly, at least as a general rule. The positive and normative analyses thus seem incongruent.
Part III theorizes that the best account for the consequential/relational economic loss distinction is an embedded political inclination of common law judges. The traditional distinction has been used, perhaps unconsciously, to empower the powerful. Following a general overview of my hypothesis, notwithstanding its intrinsic appeal, I substantiate it further on three levels. First, I place it in a wider theoretical context, assuming that an interpretive account of a particular doctrine must, at least to some extent, fit with an interpretive theory of the relevant branch of law. Put differently, I "zoom out" to show that Robins is an unremarkable tile in a larger mosaic. Second, I "zoom in" to show that the intricacies of the law concerning relational economic loss, not only the general rule of no-recovery, roughly conform to my hypothesis. Third, I test my hypothesis from a comparative perspective. If my contention holds, and the consequential/relational loss dichotomy is politically contingent, different legal regimes may be expected in other political environments. I demonstrate that this is in fact the case.
Via Solum/Legal Theory Blog.
Thursday, July 17, 2008
Yesterday the North Carolina Medical Board voted to scale back its public disclosure of medical malpractice payments by physicians. The Board decided to post only those payments in excess of $25,000, and also limited the time frame for disclosure. Rather than immediately reveal a seven-year history, the initial revelations will only date back to October 2007, when the state legislature made the rule effective. The reduction is partially in response to concerns that disclosure would violate secrecy clauses in settlements reached in the past. In pursuing disclosure, the Board relied on a poll finding the public strongly in favor of it. Over 20 states already have some form of disclosure of med mal payments. The Raleigh News & Observer story is here. Triangle Business Journal coverage is here.
Wednesday, July 16, 2008
Just imagine your day if you are the insurer for Steven Kirshner, an orthopedic surgeon. You're filing through the complaints filed against your various insureds -- malpractice, failure to diagnose, failure to treat properly, and...huh?
Putting a temporary tattoo of a red rose on a patient's belly while the patient was anesthetized?
Yikes (via Philly.com).
The doctor doesn't deny it, with his lawyer saying that the tattoo "was intended just to make the patient feel better" and that he's done it to other patients, none of whom have complained.
Arthur Caplan of Penn: "You cannot do something like this even as a joke."
(My daughter, on hearing the basics: "It'd be all right if it was a Radio Adventures of Doctor Floyd tattoo, because then she could find out about a great show!")
(hat tip Rick Linsk)
The WSJ Law Blog recently interviewed Bill Marler, a partner at the six lawyer MarlerClark - "a practice dedicated to representing victims of food poisoning," about the salmonella outbreak. Marler reported that his firm did have a few salmonella clients, but until the source of the salmonella outbreak "clarifies a bit, there really is, in my view, no one to sue."
Victims of a 2006 Hezbollah rocket attack in Israel filed suit last week in New York state court against American Express Bank Ltd. and the Lebanese-Canadian Bank SAL. The suit alleges that the banks aided and abetted the attack by facilitating money transfers to Hezbollah. The suit seeks $650 million in damages.
Tuesday, July 15, 2008
Sebok calls the decision "a model of common law reasoning," and concludes that the decision added to the law of public nuisance in two important ways: (1) by noting that "the definition of “public right” (the second element in the test for public nuisance) does not refer broadly to any interest shared by all persons in a society," and (2) by holding that "that the law of public nuisance requires not only that the defendant be a substantial cause of the interference, but that the defendant still be in control of the instrumentality that caused the interference at the time when the suit is brought."
Read his thorough analysis over at Findlaw.
Technically, this post is not torts-related, though the name of this new blog sure sounds like it could be....
Check out The Slippery Slope, "a legal variety podcast" by Professor Meredith Miller (Touro). The podcasts do not focus on any particular substantive area, but instead examine "the culture of law, the gray areas of the law, and the every day places where the law intersects with our lives."
Monday, July 14, 2008
Cynthia Kalish married her partner as soon as it was legally permitted in Massachusetts, but the Massachusetts SJC ruled that she can't be a plaintiff in a med mal suit related to injuries prior to the marriage. The Boston Globe has more.