May 30, 2009
Congratulations to TortsProf Byron Stier!
This has been a goal since Byron and I met for our teaching fellowship in August 2003 (over beers at the Draught Horse in north Philly). It's a well-deserved honor, and I congratulate the faculty and administration at Southwestern for their wisdom in bestowing it.
May 29, 2009
Personal Injury Roundup No. 38 (5/29/08)
On this day in 1953, Edmund Hillary conquered Mt. Everest. On to this week's news in the world of torts:
Reform, Legislation, Policy
- FDA proposes new direct-to-consumer advertising guidelines. (Life Sciences Legal Update)
- House bill strengthens FDA's watch over food supply. (WaPo)
- White House launches "President's Food Safety Working Group" website.
- Oklahoma Governor signs tort reform bill; changes take effect Nov. 1st. (TortsProf)
- Louisiana rejects med mal limits on suits against nursing homes. (TortsProf)
- FDA urges tougher acetaminophen warning. (ABC News, US News)
- Senate holds hearing on Chinese dry wall. (Mass Tort Defense)
- Connecticut law firm sues Google over sale of firm name as ad-word. (Am Law Daily, CT Law Tribune)
- Photographer sues Chris Brown over alleged assault. (TMZ)
- Three more suits concerning the antibiotic Levaquin filed in New Jersey; cases are being considered for mass tort status. (About Lawsuits)
- Realtors sue CSI writer for defamation. (Turley)
Trials, Settlements and Other Ends
- Florida librarian voluntarily dismissesnegligence suit against Facebook for its alleged failure to protect users from viruses. (CNET)
- Lawyer opposes Nigerian settlement with Pfizer. (Mass Torts Profs)
- NY Appellate Division stays malpractice action against Greenberg Traurig. (ABA Journal)
- Absent a weekend settlement, jury selection will begin Tuesday in Alien Tort Claims Act case against Royal Dutch/Shell. (NY Law Journal/law.com)
- SCOTUS denies review of 5 to 1 punitive damages case against Chrysler for defective design of the car seats. (Cal Punitive Damages, Life Sciences Legal Update)
comp insurer for bad faith (Business Ins)
May 28, 2009
Sharkey on Preemption and Federalism
Cathy Sharkey (NYU) has just posted Federalism Accountability: 'Agency-Forcing' Measures on SSRN. Here is the abstract:
This Article takes as its starting point the “agency reference model” for judicial preemption decisions, adopting the foundational premise that courts should take advantage of what federal agencies, which are uniquely positioned to evaluate the impact of state regulation and common law liability upon federal regulatory schemes, have to offer. The Article’s main focus is on the federalism dimension of the debate: Congress’s and federal agencies’ respective ability to serve as loci of meaningful debate with state governmental entities about the impact of federal regulatory schemes on state regulatory interests. Notwithstanding the dismal track record of federal agencies, which seems to be characterized by total neglect of states’ regulatory interests, the Article sides with agencies over Congress and trains its focus on reform of the agency rulemaking process. Given that the 1999 Federalism Executive Order provides a blueprint for timely and meaningful consultation with the states, issuance of federalism impact statements, and robust interchanges during the notice-and-comment period, what is needed now is an effective enforcement mechanism.
The Article advocates a variety of “agency-forcing” measures designed to enhance the ability of Congress, the executive, and especially the courts, to ensure that agencies abide by executive mandates and other reforms, and to provide a check on overt politicization or inaction on agencies’ part. The Article introduces the concept of “indirect challenges” to agency rulemaking, arising outside of the Administrative Procedure Act’s domain of direct challenges to agency action at a later juncture when a defendant asserts a preemption defense to state common law tort actions.
LA House Refuses to Extend Med Mal Protections to Nursing Homes
The nursing home industry's push to receive state med mal protections (damage caps, panel screening prior to trial) was rejected yesterday by the Louisiana House of Representatives. Nola.com has the details.
Grady on Unavoidable Accident
Mark Grady (UCLA) has published Unavoidable Accident in Bepress's Review of Law & Economics. The abstract provides:
In negligence law, “unavoidable accident” is the risk that remains when an actor has used due care. The counterpart of unavoidable accident is “negligent harm.” Negligence law makes parties immune for unavoidable accident even when they have used less than due care. Courts have developed a number of methods by which they “sort” accidents to unavoidable accident or to negligent harm, holding parties liable only for the latter. These sorting techniques are interesting in their own right and also provide a way of conceptualizing the relationship between specific negligence and res ipsa loquitur, which are two variants of the negligence rule. One judicial sorting technique reveals a paradox of negligence law. New safety technology often reduces the amount of unavoidable accident and simultaneously increases the expected number of “compliance errors,” or routine negligent lapses, that actors will make. Paradoxically, an actor’s use of new safety technology can make it more likely that a court will sort an accident to negligent harm as opposed to unavoidable accident. The article develops these theoretical ideas through a series of graphical illustrations analogous to those of traditional price theory.
May 27, 2009
Petrin on Directors' and Officers' Tort Liability
Martin Petrin (S.J.D. cand. UCLA) has posted a draft of his recent article "The Curious Case of Directors’ and Officers’ Liability for Supervision and Management: Exploring the Intersection of Corporate and Tort Law" on SSRN. The abstract provides:
Directors’ and officers’ liability under corporate and securities laws continues to be a hotly debated subject. Yet, their liability toward non-shareholder third parties under common tort law and statutory provisions has generated relatively modest scholarly interest. Thus, it has gone mostly unnoticed that corporate directors and officers can be held personally liable in tort to non-shareholder third parties based on failures in exercising their core corporate duties - supervision and management.
However, as this article explains, the current liability regime in this area is in need of repair. It fails to distinguish between the corporation’s duties and the duties of directors and officers, neglects the separate corporate personality of the corporation, unduly shifts the risk of doing business to directors and officers, and undermines the heightened liability protections provided to directors and officers by corporate laws. Consequently, a new approach is required.
This article proposes a novel model for corporate liability that is centered around the nature of directors’ and officers’ duties and focuses on the individual’s state of mind. At its core, the proposed model is based on the belief that in order to preserve the corporate shield, liability standards in tort law should not conflate the standards imposed on individuals with those imposed on directors and officers.
May 26, 2009
The Fight Against Libel Tourism in Britain
Sunday's NY Times had an interesting article on libel tourism - plaintiffs with little connection to Britain who bring libel lawsuits against American authors in London courts using Britain's friendlier libel laws. From the article:
London has gained a reputation as the libel capital of the world. Saudi businessmen have sued there to complain about American reports that they engaged in terrorist financing; Russian and Ukrainian oligarchs have sued in Britain over accusations of unsavory business activities; and Hollywood celebrities have gone to London to seek redress over reports of wayward kisses.
To try to insulate American authors and publishers, groups like the A.C.L.U. and the Center for Democracy have persuaded lawmakers in New York and Illinois to pass state laws that block enforcement of British libel decisions in the United States. Similar bills are advancing in other state legislatures, and stronger measures, allowing American defendants to fight back against adverse foreign libel rulings, have been proposed in the United States Congress.
Tort Lawyer Websites
Eric Turkewitz has an interesting post about the various priorities he attempts to advance in working on his website. While not academic, it's a useful overview of all of the moving parts a practicing tort lawyer has to deal with.