Saturday, January 24, 2009
In mid-2007, I posted about the investigative report into the death of a teenage girl on an "Air Glory" ride, which is somewhat similar in concept to the popular "SkyCoaster" swing ride, but quite different in implementation.
The lawsuit that followed has settled, reportedly for the insurance limits of $1 million. Perhaps of note, the parents have emphasized that the settlement is solely from the insurer -- i.e., that the Christian festival is not paying directly.
Keith Hylton (Boston) has posted The Economics of Nuisance Law on SSRN. Here is the abstract:
Economic analysis of nuisance law can be divided into two branches: the transaction cost model and the externality model. The two models provide a relatively complete positive theory of nuisance law. Under the externality model, nuisance law optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or not reciprocal to other background external costs. Proximate cause doctrine plays an important role in inducing optimal activity levels.
Friday, January 23, 2009
As is common, Gerald Markowitz, a historian, was named as an expert for the plaintiffs in a vinyl chloride case; I've written an article that related to discovery in the peer review process related to his book, and I've also done some early work towards an article about historians in litigation more generally.
Well, Markowitz (as well as some other experts) was recently excluded in an Ohio case; the short opinion describes some of the challenges in using historians in litigation and is worth a read: Download markowitz_opinion.pdf
Symeon Symeonides (Willamette) has posted Choice of Law in Cross-Border Torts on SSRN. From the abstract:
This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.
One of the article's findings is that, over the last forty years, American cases involving cross-border torts have applied the law favoring the tort victim 86 percent of the time.
Thursday, January 22, 2009
Dr. David Egilman has a post at the Pump Handle blog regarding the settlement of civil and criminal matters by Lilly in the Zyprexa off-label marketing case. Egilman, who acknowledged in a sworn affidavit to violating a protective order in the litigation, argues against the use of protective orders in pharmaceutical tort litigation and for delivering any sealed discovery to the FDA and DOJ.
He also contends that the criminal charges might not have proceeded if not for his leak of documents, though the criminal investigation began in 2004 (well before the protective order violation) and federal prosecutors do not lack for subpoena power. Of course, the leak may have highlighted documents that the prosecutors had not focused on, I suppose.
A draft of my latest article, The Prosser Notebook: Classroom as Biography and Intellectual History, is available on SSRN.
Some of you may recall my series of posts--Post 1, Post 2, Post 3, Post 4, Post 5, Post 6--on the notebook which ran in November and December of 2007. I hope to make the contents of the notebook itself available; William Benemann, the archivist at Berkeley Law, is working to set up a web page that connects my article to the contents of the notebook.
In the article, I use the notebook to present new details regarding several of Prosser's seminal accomplishments, such as his contribution to strict products liability. I also use the notebook to demonstrate Prosser's realism in the classroom and connection to the compensation and deterrence rationales.
I appreciate the comments I have received from many of you on this project, and also the input I received at a colloquium at Rutgers-Camden last fall. I welcome any further comments on the piece.
Here is the abstract:
When a former student offered to let me see his grandfather's Torts notebook, I was intrigued. The 70-year-old black notebook has developed a patina, but is in remarkably good condition. The sides have a lightly textured surface. The spine, not damaged by cracks, has several small gold stripes running across it. The notebook belonged to a first-year law student named Leroy S. Merrifield during the 1938-39 academic year at the University of Minnesota Law School. Merrifield used it to record notes during his Torts class. His professor was William Prosser.
Because Prosser's papers likely have been destroyed, Merrifield's notebook offers a unique "behind the scenes" look at Prosser during a very significant period in his professional development. During 1938-39, Prosser was finishing a draft of the first edition of Prosser on Torts, the most influential treatise ever published on tort law. Furthermore, Prosser's article legitimizing intentional infliction of emotional distress as an independent tort appeared in the spring of 1939. In addition to insights into these particular projects, the notebook allows a better understanding of Prosser's place in the intellectual history of twentieth century legal theory. Prosser's 1938-39 Torts class took place at the height of the realist influence in the academy. The notebook demonstrates Prosser's realism in the classroom, as well as his connection to the two major consequentialist torts rationales of the twentieth century: compensation and deterrence. In short, the notebook sheds light on both the origins and the content of one of the law's most influential thinkers.
This Article accomplishes three things. First, with no biography available on Prosser, the Article provides an account of his life, drawn heavily from archival research. Second, the Article presents new details of several of Prosser's seminal accomplishments. Third, the Article helps situate Prosser in the jurisprudential development of law in the twentieth century.
Eric Turkewitz has a careful analysis of the various potential ways that lawyers in New York might be able to get around the current ethical restrictions on advertising, as well as some suggestions about how to better control advertising.
Wednesday, January 21, 2009
I'm rather late to linking to it, but Walter Olson's Forbes piece is an excellent overview of the unintended consequences of the well-intentioned CPSIA. Consumerist.com has done some relevant posts as well.
John Beisner and Jessica Miller (both partners at O'Melveny & Myers) have published "Litigate the Torts, Not the Mass: A Modest Proposal for Reforming How Mass Torts Are Adjudicated" (pdf) as a monograph with the Washington Legal Fund.
The monograph proposes a four-part reform to improve the multi-district litigation process, including (1) expand the diversity jurisdiction of federal courts, (2) adopt "standardized winnowing procedures," (3) eliminate "class action tolling of limitation periods," and (4) "revise ethical rules to account." More from the press release.
(Via Point of Law)
Tuesday, January 20, 2009
Vaia Karapanou and Louis T. Visscher (Erasmus University Rotterdam) have posted "The Magnitude of Pain and Suffering Damages from a Law and Economics and Health Economics Point of View" on SSRN. The abstract provides:
In this paper we investigate the correct magnitude of pain and suffering damages for personal injuries. These damages differ greatly between and within countries, and the law of damages does not provide a framework to assess the correctness of the granted amounts. In our view, Law and Economics in combination with Health Economics is able to provide the required external framework.
In the Law and Economics literature, a tension exists between the prevention theory (stating that the injurer should fully compensate non-pecuniary losses) and the insurance theory (stating that the victim should not receive compensation for non-pecuniary losses, because he would not self-insure against these losses). We discuss the scarce literature that suggests a synthesis between these two theories: by basing damages on the amount that victims would spend in order to reduce the expected non-pecuniary accident losses, the injurer receives the correct incentives and the victim is not over-compensated. The Law and Economics literature, however, lacks a framework to connect the magnitude of the damages to the injuries of the victim.
The concept of Quality Adjusted Life Years (QALYs) from the domain of Health Economics can fill this gap. A QALY expresses the value of living one year in a certain health condition. By studying Health Economics literature, the impact of different health conditions on the quality of life may be assessed. By subsequently monetizing QALYs, this impact is expressed in monetary terms, thereby providing a non-arbitrary basis for pain and suffering damages.
We compare the amounts granted in pain and suffering damages in several European countries with the amounts that would result from a conservative estimation of the monetary value of a QALY for specific types of personal injuries. The conclusion is that the amounts that are currently awarded are (much) too low from a perspective of deterrence, but also from the more traditional legal compensation point of view.
(Via Solum/Legal Theory Blog)
Over at New York Injury Cases Blog, John Hochfelder surveys verdicts and settlements in recent foot injury cases (excluding amputations). Hochfelder finds a wide range from a low of $75,000 to a high of $2.2 million. He attributes the disparity to the nature of the injury - the $75k for example was for an injured pinky toe while the $2.2 million was for a crushed foot requiring complex reconstruction surgery.
Monday, January 19, 2009
The Secret Ingredients blog of the Seattle Post-Intelligencer has a post today addressing the peanut butter salmonella situation, reporting that the FDA is doing relatively little to determine the scope of the outbreak. Not surprisingly, Bill Marler's blog is the other good source for information on it.
Sunday, January 18, 2009
I'm happy to announce that David Michaels, author of Oxford Press-published Doubt is Their Product, will be giving the first Clason Lecture at Western New England College School of Law, on Thursday, February 5, at noon. It is open to the public.
David will also be guest lecturing in my Experts and Scientific Evidence writing seminar (which is not open to the public). The following week, we'll have Thomas Feher, a defense lawyer who has represented the other side in cases David has served as an expert witness, lecturing the same class. Should be interesting.