Saturday, July 11, 2009
Yesterday, Gov. Jan Brewer signed a bill into law requiring plaintiffs to prove malpractice against ER physicians by clear-and-convincing evidence. The new law takes effect on September 30th. Forbes.com has a brief story here.
Friday, July 10, 2009
Thursday, July 9, 2009
A divided Michigan Supreme Court has allowed to stand a ruling that a dead mother's family can sue for $1.4 M for lost household services. The defendants argued the damages were noneconomic and, thus, subject to a damages cap. I haven't read the opinion, and I can't vouch for the valuation, but the principle seems accurate. Replacing these services will require a monetary payment. The Chicago Tribune has a brief story here.
Kyle Logue (Michigan) has posted to SSRN Coordinating Sanctions in Torts. Here is the abstract:
This Article begins with the canonical law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this regulatory picture of tort law, the Article asks the question how tort law should coordinate with already existing non-tort systems of regulation. Thus, for example, if a particular activity is already subject to extensive agency-based regulation, regulation that already addresses the negative externalities or other market failures associated with the activity, what regulatory role remains for tort law? Should tort law in such cases be displaced or preempted? The answer is: It depends. Sometimes, even in the presence of overlapping non-tort regulation, there is a regulatory role that tort law can play, sometimes not.
For one example, if the non-tort regulatory standard is already “fully optimizing,” in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory authority, then tort law arguably should be fully displaced in the sense that no tort remedy should be available for harms caused by such an activity. If, however, the regulatory standard is only “partially optimizing” (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role to play.
This framework can be used to explain such tort doctrines as negligence per se and suggests circumstances in which there should be a corollary doctrine of non-negligence per se. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. Finally, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.
Wednesday, July 8, 2009
Jonathan Turley reports that Sarah Palin's lawyer has sent "cease and desist" letters to the Washington Post and other news outlets regarding their reporting on her decision to leave office. Although the letter reportedly threatens a defamation suit, Turley notes any claim would be unlikely to succeed under New York Times v. Sullivan.
Tuesday, July 7, 2009
A second edition of Foundations of Torts, co-edited by Saul Levmore (Dean, Chicago) and Cathy Sharkey (NYU), is now available:
This is a completely revamped, updated version of the original 1993 edition, and is a valuable resource for torts professors teaching at all levels of instruction. It provides an enhanced theoretical and empirical foundation for a diverse selection of fundamental torts topics typically taught at the introductory level, such as the Hand formula, duty to rescue, market-share liability, and vicarious liability, while, at the same time, providing an in-depth exploration of cutting edge issues suitable for an advanced course or seminar, such as medical malpractice, products liability, federal preemption of state tort law, and punitive damages. Each chapter includes an introductory overview of a topic in tort law, followed by abridged readings, and then provocative notes and questions. The intent is to give the instructor interesting material with which to work, and to equip the student with foundational tools useful for the critical reading of cases and articles.
New Jersey Law Journal (via law.com)reports that the New Jersey Supreme Court has designated the growing litigation over Levaquin, an antibiotic manufactured by Johnson & Johnson, as a mass tort. The case has been assigned to Atlantic County Superior Court Judge Carol Higbee. Judge Higbee has scheduled a case management conference for July 16th.