Saturday, May 2, 2009
Over at Legal Theory Blog, Larry Solum (Illinois) has recommended two pieces of torts scholarship. First, Theodore Eisenberg, Michael Heise, and Martin Wells (all Cornell) have the "Download of the Week" in Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court's Decision in Exxon Shipping Co. v. Baker. Here is the abstract:
Exxon Shipping Co. v. Baker acknowledged what virtually all methodologically sound punitive damages research shows. The Supreme Court relied in part on an article by the present authors and others to state that empirical studies undercut the most audible criticism of punitive damages and that no mass of runaway punitive awards existed. Paradoxically, the Court simultaneously expressed concern about jury predictability based on a high mean and standard deviation in the punitive-compensatory ratio published in our article. The Court therefore reduced a $2.5 billion punitive award relating to the Exxon Valdez oil spill to $500 million to implement a 1:1 punitive-compensatory ratio and stated that “the constitutional outer limit may well be 1:1.” This article shows that our empirical findings relied on by the Court do not support the unpredictability concern or widely applying the limiting ratio. The high mean and standard deviation are artifacts of not accounting for the key variable that explains punitive awards - the compensatory award. Stratifying the mean and standard deviation of the punitive-compensatory ratio by the level of the compensatory award shows that the ratio is reasonably stable in high award cases and significantly and explicably more variable in low award cases. Basing doctrine on summary statistics that combine these heterogenous distributions is not statistically supportable. The award reduction in Exxon Shipping may have promoted consistency with other high compensatory award cases but the 1:1 principle the case hints at is not statistically supportable across the broad range of compensatory awards, and could contribute to an inability to tailor punitive awards to the facts and circumstances of particular cases.
Here I am concerned with Jules Coleman's challenge, in his book The Practice of Principle, to the attempts of some economists of law to defend, in economic terms, certain core doctrines of the law of torts. The core doctrines in question are (a) that a tort is a wrong and (b) that the remedial duties of tort law (especially to pay damages) are duties to repair the wrong (or the damage that forms part of it). Although I share the view that economists of law typically work with a bad theory of value, I doubt Coleman's contention that their bad theory of value disables them from defending these doctrines in terms of it. Along the way I doubt the contrasts that are sometimes drawn between 'justificatory' and 'explanatory' theories of tort, and between 'normative' and 'positive' economics.
Thursday, April 30, 2009
I've got a couple more days until the exams roll in for grading, so I'm off to Brooklyn for the weekend. Here's a look at some of what happened this week in tort law.
Reform, Legislation, Policy
- CEO of Universal Health Services, a hospital management company, thinks med mal liability reform should be on the table [CNBC]
- Developments in Oklahoma liability changes [Insurance Journal] (don't confuse this story with the much more entertaining story about Oklahoma naming the Flaming Lips' "Do You Realize" the official state rock song)
- Andrew Speaker of TB fame/infamy sues the CDC, who is no doubt not at all busy right now. [TortsProf]
- No suits yet (that I know of), but hotel lawyers are thinking about swine flu carefully. [Hotel Law Blog]
- Included only for the title: "Calzone Victim Files New Lawsuit." Yes, it really is about a calzone, the delicious cheesy foodstuff. [News-Journal Online]
Trials, Settlements & Other Ends
- Wyeth v. Levine decision breaks logjam; lots of pharma trials coming. [Bloomberg]
- Another trial starting in chicken litter cases in northwest Arkansas. [NWANews.com]
- Part of Arkansas tort reform measures struck down as unconstitutional. [Johnson v. Rockwell (PDF)]
- Suit over alleged overseas torture allowed to continue, rejecting "state secrets" defense. [Washington Post]
- Ron Miller asks for a link, I provide one. Plus, it's a good batch of links. [Maryland Lawyer Blog]
- Chris is looking for Prosser references in pop culture. I hope some hip hop artist somewhere has thrown in a Prosser line, perhaps rhyming with "bosser"? [TortsProf]
- Botox gets a black box in non-cosmetic use context, though patients getting the cosmetic use should be warned too (and, yes, there are Google ads for Botox Lawyer, and I bet this post will get some comment spam too). [WebMD]
Mark Geistfeld (NYU) has posted on SSRN Efficiency, Fairness, and the Economic Analysis of Tort Law. Here is the abstract:
Throughout its history, the economic analysis of tort law has been largely limited to one question: How should tort rules be formulated so as to minimize the social cost of accidents? Throughout its history, the economic analysis of tort law has also been controversial. The two phenomena are related. It is highly controversial whether tort law should minimize accident costs to the exclusion of fairness concerns, which in turn has fostered the belief that the economic analysis of tort law is controversial.
The most forceful critique has come from those who maintain that tort liability is best justified by the principle of corrective justice. This principle is based on an individual right that imposes an obligation or duty on another individual. A duty-holder who violates the correlative right has committed a wrong, creating a duty to repair or correct any wrongful losses suffered by the right-holder. This rights-based principle of justice purportedly rules out the economic analysis of tort law.
Such sweeping claims about the irrelevancy of economic analysis must be understood in context. If the appropriate rationale for tort liability is a rights-based principle such as corrective justice, then the justification for a liability rule does not depend on whether it is allocatively efficient. Economic analysis is “ruled out” for being irrelevant to the rights-based justification for tort liability.
Allocative efficiency does not need to be the norm of tort liability in order to make economic analysis relevant. Economic analysis is not limited to issues of allocative efficiency and cost minimization. It is an open question whether a rights-based tort system would employ economic analysis, and if so, how.
To address this question, I specify the substantive content of an autonomy-based, individual right that is both allocatively inefficient and fully compatible with the relevant requirements of welfare economics. As I have argued at length elsewhere, such a right also provides a good description of tort law. Thus, the idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken. I conclude by arguing that economic analysis is integral to any plausible rights-based tort system.
Andrew Speaker, an Atlanta lawyer, has sued the CDC for privacy-related torts arising from the attention he received back in 2007 when the CDC publicized his international travel with what the CDC asserted was a dangerous form of TB. He contends that the publicity was unnecessary to achieve the CDC's public health goals and that it caused him harm (including ending his marriage).
We had several posts about the case at the time.
And now for something completely different. The end of classes finds me in a somewhat mellow mood, focusing on the lighter side of torts. In that vein, I'm curious about the number of references to Prosser on Torts in pop culture.
- In the 1991 movie "Doc Hollywood," Michael J. Fox's character encounters Julie Warner's character in a diner in fictional Grady, South Carolina. She is interested in eventually going to law school, and she's reading the famous tome.
- In Lisa Scottoline's 2006 novel, Dirty Blonde, on page 335, the main character is unpacking books in her judicial chambers. One of the books is, again, the famous tome. The heroine clearly had good taste in law classes: "Cate unpacked another book, Prosser on Torts. She had loved that class." (Thanks to my colleague Kathy Jones for the tip.)
- During the 2008 campaign, Prosser on Torts made an appearance on the website Things Younger than John McCain here.
Am I missing any?
Wednesday, April 29, 2009
Mark Behrens (SHB) has a new article coming out this week in the Texas Review of Litigation, "What's New in Asbestos Litigation?" published at 28 Rev. Litig. 500 (2009). Download What's New in Asbestos Litigation (pdf). The abstract provides:
Asbestos litigation is the "longest-running mass tort" in U.S. history. Since asbestos litigation emerged over three decades ago, lawyers who bring asbestos cases have kept the litigation going by adapting to changing conditions. Now, the litigation appears to be evolving once again. In the earlier years of asbestos litigation, most cases were filed by people with cancer and other serious conditions. From the late 1990s until recently, the vast majority of claimants were not sick. The mass recruitment of non-malignant claims has ceased, and the litigation is re-focused on people with mesothelioma (a type of cancer) and other serious conditions. The target defendants have changed too. First, the litigation was focused on companies that made asbestos-containing products. Then, when most of those companies went bankrupt, the litigation spread to premises owners in claims brought by independent contractors. Now, new companies and industries are being targeted, and new theories are being raised. New forums are also emerging. Plaintiffs’ lawyers are actively seeking out new jurisdictions in which to file their claims, largely driven by the desire to avoid reforms adopted in states that were once favored jurisdictions, such as Texas. The article discusses these trends and forecasts the types of claimants, places, and theories that are likely to dominate the civil court asbestos litigation landscape for the next several years.
Admittedly, this is not Torts-related, but I am so proud of my students that I ask your indulgence this one time.
In yesterday's ruling in FCC v. Fox Television Stations, et al., Justice Thomas cited an article in the Charleston Law Review's annual Supreme Court Preview. Specifically, Justice Thomas 's concurring opinion cited Charting a New Constitutional Jurisprudence for the Digital Age by Randolph J. May.
So, consider submitting an article to the Supreme Court Preview volume! The law review welcomes articles or essays addressing a case before the Court in its October 2009 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court. The Supreme Court Preview is published to coincide with the opening of the October Term, and the editors will begin reviewing submissions for next year's volume beginning July 1, 2009. Work must be submitted no later than August 1, 2009, and submissions are reviewed on a rolling basis. Please direct submissions and any questions about the Supreme Court Preview to Ben Garner, Editor in Chief, via email at bgarner [at] charlestonlaw.edu or via telephone at (434) 941-9831.
Tuesday, April 28, 2009
Monday, April 27, 2009
Prof. Ben-Shahar argues that those needs are all at least overstated. Audio and video at the link.