Saturday, June 13, 2009
Jean Eggen (Widener) has posted on SSRN The Mature Product Preemption Doctrine: The Unitary Standard and the Paradox of Consumer Protection. Here is the abstract:
The history of the U.S. Supreme Court’s product preemption doctrine has been characterized by inconsistency and confusion. Product regulation and common-law product liability actions are primarily concerned with assuring the health and safety of the consuming public, and it is not surprising that the Court’s product preemption decisions have focused substantially on medical devices and drugs. Recent government studies have shown, however, that the FDA is hampered in reaching its safety goals by insufficient resources and increasing demands. This article reassesses the Court’s product preemption doctrine in the light of a triad of new decisions issued in 2008 and 2009. This article argues, first, that the new decisions demonstrate that the Court has embraced a unitary standard for product preemption, which merges previously discrete elements into a single, discretionary analytical process. The unitary standard lacks the desirable structure of a doctrine of this magnitude and leaves itself open to being applied in an arbitrary and unpredictable manner. This article then argues that although the Court continues to express respect for the traditional role of state tort actions in advancing consumer protection, a disconnect exists between those policy goals and the analytical process the Court uses, which places those goals in jeopardy. The unitary standard, paradoxically, invites arbitrary and unpredictable results and poses a threat to the public in the area of product safety.
Friday, June 12, 2009
The Roundup will return next week. In its place, I'll simply offer "things that caught my eye on Bloglines this morning."
Ron Miller has an interesting post about Obama's possible acceptance of medical malpractice tort reform at The Maryland Injury Lawyer Blog. Also see his earlier post "Collateral Source Rule Under Attack in Indiana."
Walter Olson at Point of Law posts about Judge Weinstein on Mass Torts. Just yesterday I read a fascinating roundtable discussion, Judge Jack B. Weinstein, Tort Litigation, and the Public Good [PDF]. Tony Sebok moderated an an all-star cast.
Thursday, June 11, 2009
Over a month ago, Sheila posted Michael McCann's column on the collapse of the Dallas Cowboys' training facility. Today there is an AP report that the Cowboys knew of an earlier collapse of a similar structure at the time they contracted for the facility to be built.
There is an intriguingly titled note in the upcoming issue of the Alabama Law Review. Brian L. Church's Balancing Corrective Justice and Deterrence: Injury Requirements and the Negligent Infliction of Emotional Distress is at 60 Ala. L. Rev. 697 (2009).
Wednesday, June 10, 2009
The Chicago Sun Times reports that the Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois, has threatened to sue publisher Harper Collins for defamation based on statements in the forthcoming book "Triple Cross" by Peter Lance. The Chicago Tribune (AP) also has coverage of the story.
Royal Dutch Shell has agreed to pay $15.5 million to settle the Alien Tort Claims Act case based on its alleged complicity in the 1995 deaths of several Nigerian activists. Jury selection had been scheduled to begin in the Southern District of New York, but was then postponed presumably to allow settlement talks to continue.
Tuesday, June 9, 2009
According to the Wall Street Journal, President Obama's health reform legislation could take a very different form depending on the health of ailing Senator Ted Kennedy (D-MA):
If the liberal Mr. Kennedy takes a lesser role, that could make it easier for the more-conservative Mr. Baucus to push the health-care legislation in a centrist direction. Mr. Kennedy, for example, is a major proponent of including a publicly run health-insurance option as part of a plan to give all Americans coverage, while Mr. Baucus is weighing other proposals that wouldn't include such an option right away.
Mr. Kennedy's committee late last week began circulating the first draft of its proposal for sweeping changes, starting the maneuvering in earnest. The committee is scheduled to hold a "markup" -- public sessions to make final the bill's details -- in mid-June.
Following that, Mr. Kennedy's committee will engage in intensive negotiations with Mr. Baucus, chairman of the Senate Finance Committee. Then the Democrats must guide the bill to passage on the Senate floor.
Torts profs (and practitioners) are litigators, too. So, two civil procedure items of note from the U.S. Supreme Court:
1. In Caperton v. A.T. Massey Coal (pdf) (08-22), the Court held that a West Virginia justice's failure to recuse after accepting substantial campaign donations from a person associated with the defendant violated the Due Process Clause of the 14th Amendment. 2. Yesterday, the Court granted review in Hertz v. Friend (08-1107). The question presented is whether for purposes of determing a corporation's principal place of business for diversity jurisdiction, a federal court should apply the "place of operation test" or the "nerve center test" where a corporation does substantially more business in one state compared to others.
1. In Caperton v. A.T. Massey Coal (pdf) (08-22), the Court held that a West Virginia justice's failure to recuse after accepting substantial campaign donations from a person associated with the defendant violated the Due Process Clause of the 14th Amendment.
2. Yesterday, the Court granted review in Hertz v. Friend (08-1107). The question presented is whether for purposes of determing a corporation's principal place of business for diversity jurisdiction, a federal court should apply the "place of operation test" or the "nerve center test" where a corporation does substantially more business in one state compared to others.
Monday, June 8, 2009
Mark Behrens, Greg Fowler, & Silvia Kim (Shook, Hardy & Bacon) have published Global Litigation Trends in the Michigan State Journal of International Law.
The article explores three particular areas where changes are occurring or are under consideration outside of the United States: (1) aggregate litigation, (2) litigation funding, and (3) punitive damages.
The article concludes that a growing list of countries outside the United States, including Canada, Australia, most European, and several South American countries, now recognize some form of multiclaimant litigation—whether class actions, groups actions, or representative actions by consumer or public organizations. The trend, however, has been to reject wholesale adoption of U.S.-style class actions. What has emerged instead is a distinctly "un-American" approach that generally disfavors opt-out procedures and often allows public bodies and private consumer organizations to bring collective actions in addition to (and sometimes in place of) individuals. Foreign countries also have not so far been inclined to change other rules that have helped make class action lawsuits practical in the United States. In particular, there have not been widespread calls to do away with the loser-pays rule. Contingent fees and punitive damages remain generally prohibited, but changes are occurring in this area and past prohibitions are softening. The steps taken so far in these two areas, in particular, have been incremental and modest—but a wall is built one brick at a time. If collective actions become more prevalent, and the foreign plaintiffs’ bar better funded and coordinated as a result, it would not be surprising to hear calls for broader and speedier reform.
Download the article [PDF] Download DC-162736-v1-Global_Litigation_Trends_Article_pdf.
Sunday, June 7, 2009
Congratulations to Aaron Twerski (Brooklyn) for winning the Robert C. McKay Award. The award is given by the ABA's Torts and Insurance Practice Section to an academic for his or her "commitment to the advancement of justice, scholarship and the legal profession demonstrated by outstanding contributions to the fields of tort and insurance law." Professor Twerski's remarks upon receiving the award, generally critical of the state of legal scholarship for being overly theoretical and irrelevant, are here [PDF]. The remarks inspired this Prawfs post by Professor Michael O'Hear (Marquette).