September 12, 2009
Kuney on Successor Liability
George Kuney (Tennessee) has posted to SSRN Appendix to George W. Kuney, A Taxonomy and Evaluation of Successor Liability. Here is the abstract:
This appendix to an earlier published article represents the author’s attempt to continue to explain the characteristics and contours of each of the judge-made forms of successor liability in the 50 states and other jurisdictions listed. These presentations should be thought of as a set of “field notes” as they are often based on sketchy, brief observations of the doctrines in jurisdictions where the reported case law is thin or where the state supreme court has not spoken. As the story of Cyr v. Offen in New Hampshire shows, at times, long standing assumptions about the doctrine can be quickly reversed or undermined.
This appendix is updated annually to track the state of the law in this field. Please note that while the author and editors are cognizant of the formalities of the blue-book form, we have chosen to abandon the use of “Id.,” in order to avoid confusion between different versions of the document.
September 11, 2009
Personal Injury Roundup No. 50 (9/11/09)
My kids finally started school this week, so -- after three weeks teaching -- it finally actually feels like fall here.
Reform, Legislation, Policy
- The "uneasy case" for products liability (SSRN)
- Obama's speech makes limited reform suggestions (Washington Post, Overlawyered has more and links)
- Point of Law has a roundup of objections to the nomination of David Michaels to head OSHA (Point of Law). (As an aside, I'm not sure that Michaels, or his organization, are categorically opposed to Daubert, at least conceptually.)
- Wrongful death suit blames death on casino CEO's "hedonistic" lifestyle (On Point Legal News)
- Possible problems with a wrongful death suit based on Michael Jackson's death, from noted legal analyst TMZ.com (TMZ)
- New (Canadian) lawsuit based on injuries at a rap show (The Boom Box)
- Roethlisberge's accuser says she'll drop the suit if he admits guilt; he refuses (Newsday)
Trials, Settlements and Other Ends
- Not an end, but a timeout for the jury in first Fosamax trial (CNN)
- Lawyers allege that Toyota hid evidence, suits should be reopened (SE Texas Record)
- $13.8 million in punitive damages for smoker's daughter (AP)
September 10, 2009
Introducing Guest Blogger Tony Sebok
Before joining the Cardozo faculty, Sebok was the Centennial Professor of Law and the associate dean for research at Brooklyn Law School, where he taught for 15 years. In 2005-06, Sebok was a Fellow in the Program in Law and Public Affairs at Princeton University, and in 1999, he was a Fellow at the American Academy in Berlin. After completing law school, he clerked for Chief Judge Edward N. Cahn of the U.S. District Court for the Eastern District of Pennsylvania.
Sebok has authored numerous articles about mass restitution litigation, including lawsuits involving tobacco, handguns, and slavery reparations. Sebok has also written extensively on the differences between the European and American tort systems, and is currently writing a book with Mauro Bussani of the University of Trieste on comparative tort law that will be published by Oxford University Press. Sebok is the author of Legal Positivism in American Jurisprudence, articles and essays on jurisprudence, and is the coeditor of The Philosophy of Law: A Collection of Essays. His casebook, Tort Law: Responsibilities and Redress, which he coauthored with John Goldberg and Benjamin Zipursky, is used at several leading law schools. Finally, Sebok is also a regular columnist for Findlaw.
September 9, 2009
Top 10 Recent SSRN Torts & Products Liability Downloads
|1||243||Responsibility & the Negligence Standard |
Joseph Raz, Joseph Raz,
University of Oxford - Faculty of Law, Columbia Law School,
Date posted to database: July 21, 2009
Last Revised: September 7, 2009
|2||103||Justifying the Structured Settlement Tax Subsidy: The Use of Lump Sum Settlements |
New York University School of Law,
Date posted to database: June 19, 2009
Last Revised: September 2, 2009
|3||76||Introduction: Tort Law as Cultural Practice |
David M. Engel, Michael McCann,
University at Buffalo Law School, SUNY, University of Washington - Department of Political Science,
Date posted to database: July 10, 2009
Last Revised: July 10, 2009
|4||61||Coordinating Sanctions in Tort |
Kyle D. Logue,
University of Michigan Law School,
Date posted to database: July 8, 2009
Last Revised: August 25, 2009
|5||61||Asbestos Achievements |
Brooklyn Law School,
Date posted to database: July 18, 2009
Last Revised: August 27, 2009
|6||56||Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems |
Date posted to database: June 25, 2009
Last Revised: August 7, 2009
|7||53||Explaining the American Norm against Litigation |
Shawn J. Bayern,
Florida State University - College of Law,
Date posted to database: February 26, 2009
Last Revised: June 22, 2009
|8||51||Apologies and Good Lawyering |
Tulane University - School of Law,
Date posted to database: July 7, 2009
Last Revised: July 7, 2009
|9||50||Recalibrating the Legal Risks of Cross-Border Health Care |
Southern Methodist University - Dedman School of Law,
Date posted to database: June 24, 2009
Last Revised: June 24, 2009
|10||46||Global Trends and Constraints on Tax Policy in the Least Developed Countries |
University of Wisconsin Law School,
Date posted to database: August 11, 2009
Last Revised: August 11, 2009
September 8, 2009
Shavell & Polinsky on the Uneasy Case for Products Liability
Steven Shavell (Harvard) & Mitchell Polinsky (Stanford) have posted to SSRN The Uneasy Case for Products Liability. Here is the abstract:
We explain in this Article that the benefits of product liability may well be outweighed by its costs in a wide range of circumstances. One benefit is that the threat of liability may induce firms to improve product safety. However, this benefit is limited: even in the absence of product liability, firms would often be motivated by market forces to enhance product safety because their sales are likely to fall if their products harm consumers; moreover, their products must frequently conform to safety regulations. Consequently, product liability might not be expected to exert a significant additional influence on product safety — and the available empirical evidence suggests that such liability does not in fact have a measurable effect on the frequency of product accidents. A second benefit of product liability is that it causes product prices to increase to reflect the riskiness of products and thereby may improve consumer purchase decisions. But this benefit also involves a detriment, because product prices may rise excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are already often compensated by their insurers for some or all of their losses. Potentially offsetting the benefits of product liability are its costs, which are great. To transfer a dollar to a victim of a product accident requires more than a dollar on average in legal expenses. Given the limited benefits and the high costs of product liability, we conclude that it may be socially undesirable — especially for widely sold products, with respect to which market forces and regulation are relatively strong. This judgment is in tension both with the broad social endorsement of product liability and with proposals for its reform, which generally do not question its existence. Our more critical assessment of product liability stems from the fact that we engage in an analysis of its benefits and costs, whereas neither the proponents of product liability nor its reformers undertake to do so.
New Twist on Vicarious Liability: Las Vegas Hardrock Owners Sued for Death of CEO's Girlfriend
Matthew Heller at On Point Legal News reports on a new twist on an employer's vicarious liability for its employee's torts:
Taking employment law into uncharted waters, a $645 million lawsuit alleges the operator of the Hard Rock resort in Las Vegas is liable for the death of its former CEO's girlfriend because it consented to his “hedonistic lifestyle.”
Michelle Hatchel, 23, died of a drug overdose Aug. 29, 2007 while staying at a Las Vegas condominium with Ed Scheetz, who was then the chief executive officer of Morgans Hotel Group(NASDAQ: MHG). Members of Hatchel's family filed a wrongful-death suit last week that names both Scheetz and Morgans as defendants.
According to the complaint, Scheetz flew Hatchel to Las Vegas from New York on Morgans' private jet for a weekend of cocaine and sex. She was killed, it says, “as a proximate result of the Defendants' ... wrongful and/or negligent acts or omissions” in the three-bedroom penthouse suite leased by Morgans.
An autopsy report attributed Hatchel's death to “acute, multiple drug intoxication (oxycodone, cocaine).” Police allegedly found more than seven grams of cocaine and a prescription bottle in Scheetz's name for oxycodone, an opiate painkiller, in the condo.
Under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s torts committed within the scope of employment. The plaintiffs suing Morgans have given a novel twist to that theory by arguing that Scheetz's behavior mirrored the raunchy “image” of the Hard Rock Hotel & Casino.
Class Action Suit Filed Against Applebee's For Allegedly Misleading Nutrition Values
The Lexington-Herald reports that two Kentucky women have filed a class action suit against Applebee's for fraud based on allegedly false nutrition values on its menus. Similar class actions are already pending in Ohio, Illinois and Kansas.
September 7, 2009
Happy Labor Day!
Enjoy your day away from classes. Guest Blogger Monday resumes next week.