Friday, December 4, 2009
Classes ended this week at Western New England, and we had 60-degree weather too. An odd juxtaposition. It's a shorter roundup than usual, but still some good stuff:
Reform, Legislation, Policy
- A RAND look at diagnosis in silicosis suits [TortsProf]
- Tort reform and health care costs [Houston Chronicle]
- ...and a back-and-forth about whether (and how much) tort reform is in the Obama health care plan [Point of Law]
- ...and one more thing about litigation-related matters in the health reform legislation [Progressive Fix, Overlawyered (which first covered this)
- Crime and tort law - guest post from Jason Solomon [TortsProf]
- Possible suit against Robin Williams for doing yet another movie filled with tired impressions alleged defamation against Brazil in connection with Rio getting the Olympics [Brazzilmag.com]
- Not a new suit, but an interesting one involving slipping on water splashed out of a pool by a dolphin -- a suit that strangely parallels an exam I wrote a few years ago [Lowering the Bar]
Trials, Settlements and Other Ends
- Fosamax bellwether cases dismissed [Mass Tort Litigation Prof Blog]
- Big tobacco verdict in Florida [Mass Tort Litigation Prof Blog and links therein]
- 5th Circuit allows a climate change lawsuit to proceed for now [USA Today]
- Philly trial hits Pfizer in PremPro suit [Philly.com]
Thursday, December 3, 2009
Today's Wall Street Journal has an article about asbestos trusts that quotes Vanderbilt's Richard Nagareda and Buffalo's S. Todd Brown. It's a subscriber-only piece, so I can't link to it. However, the WSJ Law Blog has a shorter post on the issue here.
Thanks to Mark Behrens for the tip.
Jay Feinman (Rutgers-Camden) has posted to SSRN The Insurance Relationship as Relational Contract and the "Fairly Debatable" Rule for First-Party Bad Faith. Here is the abstract:
This article uses relational contract theory to discuss the standard to be applied to evaluate the behavior of insurance companies in first-party bad faith cases.
The article first briefly summarizes relational contract theory and describes the insurance contract as a prime example of a relational contract. It then describes the law of bad faith in first-party insurance cases-cases in which a policyholder alleges that the insurance company has violated the duty of good faith and fair dealing that is present in every contract and intensified in insurance contracts. The most widely adopted standard for bad faith is the “fairly debatable” test, under which an insurance company is liable only if it lacks a reasonable basis for denying benefits of the policy and knows or recklessly disregards the lack of a reasonable basis for denying the claim. Therefore, where a claim is “fairly debatable,” the company is held to have not acted in bad faith. Moreover, courts have created a procedural elaboration on the fairly debatable test, under which a policyholder who could not have established as a matter of law a right to summary judgment on the substantive claim is not entitled to assert a claim for an insurer’s bad-faith refusal to pay the claim.
The article argues that from the perspective of relational contract theory, the fairly debatable rule and the summary judgment elaboration are deeply flawed. Instead, negligence is a better rule because it recognizes that the relationship between the company and policyholder is one of security, in which the company has adopted a role of acting not as an adverse party to its insured, but in a responsible manner to give the insured the benefits it reasonably expects. A negligence rule also recognizes and deters the possibility of insurer opportunism in the area of claim practices. The rule also serves the broader social role of the insurance relation in providing indemnity and security for large numbers of people.
This article is a contribution to a symposium in memory of Professor Richard Speidel.
Wednesday, December 2, 2009
The Rio Olympic Committee's lawyers are considering action in a U.S. court over Robin Williams's comment to David Letterman on The Late Show regarding how Rio won the Olympic nod. Brazzil Magazine has the story (as well as a clip of the interview).
Robert McFarland (Jones School of Law) has posted to SSRN Teaching the Law of Wrongs Without Searching for What is Right. Here is the abstract:
This essay fits into a growing body of academic literature examining a crisis of identity in the legal profession. Three recent reports (Carnegie Foundation Report, MacCrate Report and Best Practice in Legal Education Report) link professional malaise to the the state of legal education in America.
This essay argues that a significant problem is embedded in the structure and pedagogy of the traditional first-year curriculum. First-year students are typically not invited to develop an understanding of jurisprudence or professionalism in the first-year. Instead, the typical first-year pedagogy focuses on development of analytical ability and writing skill at the expense of development of a coherent legal philosophy.The typical student learns to set aside questions of justice in order to “learn the rules” and write the brief. Because students are not permitted to search for "right" answers to any question, students develop a fierce cynicism which follows them into the profession and manifests as professional malcontent.
My argument is advanced in three parts. Part one examines the crisis of identity currently afflicting the legal profession and connects this problem to the place where professional identity is formed: law school. Part two follows a student through her first-year experience in torts and describes a process whereby the student loses her moral identity in order to obtain rigorous analytical ability. She learns to set aside her own qualms in order to learn “the law” but is not equipped nor given the opportunity to reconcile the law with her moral and ethical instincts. Part three then argues that this process is problematic because the first year lacks balance and proposes changes allowing the student to learn analytical ability without developing a cynical view of law and justice.
Tuesday, December 1, 2009
The RAND Institute has released Stephen J. Carroll et al., The Abuse of Medical Diagnostic Practices in Mass Litigation: The Case of Silica (RAND Inst. for Civil Justice 2009). It is available here: Download DC-170832-v1-RAND_silica_study_final_report.
Thanks to Mark Behrens for the tip.
In last week's Houston Chronicle, Jennifer Bard (Texas Tech) had an interesting op-ed piece, "There's No Proof Tort Reform Reduces Health Costs." In this essay, Bard explains why tort reform is not a necessary part of health care reform.
Monday, November 30, 2009
Thanksgiving, Football and Torts
If you're a real Torts person -- not someone who just happens to teach the class, take it as a first-year student, or practice in the area -- you see the world as one big kaleidoscope of ever-shifting opportunities for tort claims. Our recent holiday of Thanksgiving and its football tradition is no exception.
Let's start with the recreational. One of my favorite cases is Knight v. Jewett, a 1992 CA Supreme Court case on the difficult issue of how assumption of risk fits into a comparative negligence regime. It arises out of a touch-football game with a group of friends, the kind of game that might happen on Thanksgiving (though this one was at halftime of the Super Bowl). The game was co-ed, and I never know with whom to be more annoyed: the defendant Michael Jewett, who appears to have taken the game a bit too seriously; or plaintiff Kendra Knight, for seeking legal recourse after a touch football injury.
Another big Thanksgiving football tradition now is the televised professional games that offer a great escape at family gatherings. And the major pro football case in torts (in coursebooks at least) is Hackbart v.
The main pro football player I think of these days, though, when I think about torts is Ben Roethlisberger, the defending champion Pittsburgh Steelers’ quarterback. Before the start of this season, Roethlisberger was accused of rape by a hotel employee in
This raises an interesting issue on the boundary of crime and tort, which is: why do these Jane Does get to bring tort suits? If the victim declines to complain to the police, or even if she had and the prosecutor declined to bring the case, shouldn’t that be the end of the matter? Is this the torts system run amok again, with a young woman seeing some deep pockets to go after?
Ellen Bublick has documented the growth in civil suits by sexual assault victims, and offers some thoughts on the advantages and disadvantages of bringing such claims, in an interesting piece available here. From a policy perspective, though, why even allow such suits? I suppose one can tell a typical compensation/deterrence story: because the “reasonable doubt” burden is so high in criminal proceedings, we need an extra measure of deterrence, and because compensation is not generally available in criminal proceedings, tort fills a gap there as well.
I find neither rationale very compelling. We could make any number of changes to the criminal justice system itself to increase deterrence -- changes to the substantive elements of the crime, the severity of the sentence, enforcement resources -- without deploying a separate legal regime. And the increased prevalence of victim compensation funds in criminal justice means that this remedy can be pursued by prosecutors as well.
A more appealing explanation lies in the civil-recourse theory developed initially by Ben Zipursky, and elaborated on in work co-authored with John Goldberg and by Goldberg himself. If tort provides the means for individuals to act against those who have wronged them, as recourse theory tells us, we can see why we might provide such a right of action: so the hotel employee need not depend on prosecutorial discretion to be able to hold her wrongdoer accountable.
To be sure, we can’t make it too easy to bring these lawsuits, or else people might be held accountable, or forced to settle accounts, when they have not behaved wrongfully towards anyone. Indeed, Roethlisberger’s lawyer would say that is exactly what happened here, and has produced emails which, if legitimate, serve to undermine the plaintiff’s account. But those who say the hotel employee was just out to “extort” the wealthy athlete need to explain why her lawyer offered to settle with an apology and donation to charity from Roethlisberger.
What purpose do such lawsuits serve? Assume the hotel employee was indeed raped. A tort claim allows her to stand up to the wealthy, physically imposing man who might have said “Do you know who I am?” or “Who’s going to believe you?” in response to the threat of complaint. Giving Jane Doe recourse here reinforces a norm of social equality, and her own moral worth. It allows her to say to Roethlisberger: “You can’t do that to me,” and for the statement to have real force to it.
This view of tort is less safety net, and more slingshot. Individuals who have been pushed back or thrown down can come right back at their wrongdoer, with the help of an advocate. Many will no doubt see this as an overly romanticized view of tort law and one at odds with much of contemporary practice. But I’d welcome your thoughts, either on the specific sexual assault context or the broader theoretical account of tort, discussed a bit more here.
Assistant Professor of Law
University of Georgia School of Law