TortsProf Blog

Supreme Court of VA Grants Writ in Sovereign Immunity Case

The Supreme Court of Virginia will revisit its sovereign immunity doctrine in the drowning case of a 16-year-old boy in a Lexington, VA park.  Circuit Judge Michael Irvine found the City of Lexington was protected by sovereign immunity.  VLW Blog has the story.

--CJR

Retroactive Grade Inflation

Seriously.   From the New York Times:

One day next month every student at Loyola Law School Los Angeles will awake to a higher grade point average. But it’s not because they are all working harder.  The school is retroactively inflating its grades, tacking on 0.333 to every grade recorded in the last few years. The goal is to make its students look more attractive in a competitive job market.

Thanks to Kate Schaffzin for the tip.

- SBS

Reminder- Prosser Award Nominations Deadline Coming Up

From Mike Rustad:

Dear Section Members:

The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award for 2011.  The Prosser award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ...."   The three most recent distinguished recipients are  Oscar Gray, Dan Dobbs, and Robert Rabin.  Past recipients also include luminaries such as  Leon Green, Wex Malone,  and John Wade. 

Any law professor is eligible to nominate another law professor for the award.  Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2011.   

Nominations, accompanied by a brief supporting statement, should be submitted to Prof. Michael L. Rustad, Chair Elect of the Executive Committee, either by regular mail or e-mail  at profrustad [at] aol.com.   Since I am in Sweden teaching at the University of Lund until July 14, I will extend the period of nomination until July 20, 2010.   Nominations must be received no later than 5 pm eastern time (U.S.) on July 20, 2010.  E-mail submissions at profrustad [at] aol.com are preferred.   Under our section’s policy for the Prosser award, all letters must be accompanied by a letter of support via email or hard copy at the address below:

Michael L. Rustad

Thomas F. Lambert Jr. Professor of Law &

Co-Director of the Intellectual Property Law Concentration

Suffolk University Law School

120 Tremont Street, Boston, Massachusetts 02108-4977

Bernstein on Torts Pedagogy

Anita Bernstein (Brooklyn) has posted to SSRN Teaching Torts:  Rivalry as Pedagogy.  The abstract provides:

This contribution to a Tort Law Academic Workshop considers the ‘twin themes’ pervading torts pedagogy in the twenty-first century: (1) teaching torts for global practice and (2) teaching the common law in an age of statutes. Manifested at both transnational and national levels, the two themes have in common what may be understood as rivalries, where contrary rules and stances compete for power. The article explores illustrations of this competition that emerge in an American torts classroom, with attention to the interest that a ‘pedagogy of rivalry’ might hold for torts teachers and scholars working within common law systems outside the United States.

--CJR

"Judge-Directed Negotiations" and Medical Malpractice

The New York court system received one of twenty recent federal grants to study alternative ways to resolve medical liability claims.  The court system will attempt to systematize the methods of NY Judge Douglas McKeon.  McKeon describes his method as "judge-directed negotiations," but the emphasis seems to be what he refers to as "humanness."  In essence, he listens to the parties to determine what is really driving the dispute.  Cases not settled by the parties will go to a special courtroom staffed by judges trained with a curriculum McKeon helped develop.  Plaintiffs can insist on a jury trial at any point.  WTOP.com has more.

--CJR

Calnan Named to Professorship

Congratulations to Alan Calnan, who has been named the 2010-2011 Irwin R. Buchalter Professor of Law at Southwestern Law School.  The announcement is here.

--CJR

Supreme Court Denies Cert in Wyeth Hormone Case

The United States Court of Appeals for the Eighth Circuit had ordered a retrial on punitive damages in a hormone replacement case against Wyeth.  Wyeth sought a full re-trial, but the Supreme Court denied cert.

AP/Law.com has the full report.

- SBS

Klass on Punitive Damages After Exxon Shipping v. Baker

Alexandra Klass (Minnesota) has posted "Punitive Damages after Exxon Shipping Company v. Baker: The Quest for Predictability and the Role of Juries" on SSRN.   The abstract provides:

This Symposium Essay considers the impact of the Supreme Court’s 2008 decision in Exxon Shipping Company v. Baker on the ability of juries to award punitive damages in a manner that comports with the law. In that case, the Court continued its two-decade crusade to place federal limits on punitive damages awards. The Exxon case was a federal maritime case arising out of the 1989 grounding of the Exxon Valdez in Prince William Sound, Alaska, resulting in arguably the biggest environmental disaster in U.S. history. In its decision, the Court for the first time identified “unpredictability” as the fundamental problem with punitive damages today. It then set out to make those damages more predictable by reaffirming the need for very low ratios, in this case 1:1, between punitive damages and compensatory damages. In this Essay, I argue that the Court’s quest for predictability has resulted in reviewing courts being forced to rely too heavily on the facts of other cases involving similar claims in order to determine if the punitive damages
award in the case at bar is constitutional. Such a system is fraught with error and, more importantly, creates a situation where juries cannot possibly render punitive damages verdicts that meet due process requirements because the very evidence they need to assess predictability – the facts and damage awards in other cases – cannot be made available to them.

Part I provides a brief discussion of punitive damages generally and the Court’s recent effort to place federal constitutional limits on those damages. Part II discusses the Exxon case itself and highlights the Court’s focus on “unpredictability” as the fundamental problem with punitive damages. Part III shows how lower courts have applied the Exxon case. This Part reveals that even though courts recognize that the Exxon case is a federal maritime case rather than a substantive due process case, courts have embraced the call for predictable awards by ensuring punitive damages awards are in line (both as a matter of ratio and as an absolute dollar amount) with other similar cases. Part IV illustrates how the quest for predictability requires information on other similar cases that cannot be given to juries, and how the premium now placed on predictable damages awards makes it difficult, if not impossible, for juries to arrive at constitutional verdicts.

 

Via Solum/Legal Theory.

- SBS

Top 10 Recent SSRN Torts & Products Liability Downloads

Rank	Downloads	Paper Title
1	167	Over-Parenting Gaia Bernstein, Zvi H. Triger, Seton Hall University - School of Law, The College of Management School of Law, Date posted to database: April 13, 2010 Last Revised: June 9, 2010
2	158	The Puzzle of Brandeis, Privacy, and Speech Neil M. Richards, Washington University School of Law, Date posted to database: April 6, 2010 Last Revised: April 6, 2010
3	148	Punitive Damages, Forum Shopping, and the Conflict of Laws Patrick Joseph Borchers, Creighton University School of Law, Date posted to database: March 25, 2010 Last Revised: March 25, 2010
4	120	Foreseeability in Breach, Duty and Proximate Cause Benjamin C. Zipursky, Fordham University - School of Law, Date posted to database: May 7, 2010 Last Revised: May 7, 2010
5	118	The Exxon Valdez Litigation Marathon: A Window on Punitive Damages Catherine M. Sharkey, New York University - School of Law, Date posted to database: April 15, 2010 Last Revised: June 4, 2010
6	84	Punitive Damages after Philip Morris USA v. Williams Benjamin C. Zipursky, Fordham University - School of Law, Date posted to database: May 7, 2010 Last Revised: May 7, 2010
7	77	Unbundling Risk Lee Anne Fennell, University of Chicago Law School, Date posted to database: April 27, 2010 Last Revised: April 27, 2010
8	76	Dworkin's Two Principles of Dignity: An Unsatisfactory Nonconsequentialist Account of Interpersonal Moral Duties Kenneth W. Simons, Boston University - School of Law, Date posted to database: May 7, 2010 Last Revised: May 17, 2010
9	70	Finding the Good in Holmes' Bad Man Marco Jimenez, Stetson University College of Law, Date posted to database: April 5, 2010 Last Revised: April 29, 2010
10	70	The Inauthentic Claim Anthony J. Sebok, Yeshiva University - Benjamin N. Cardozo School of Law (faculty), Date posted to database: April 21, 2010 Last Revised: April 21, 2010 --CJR

Epstein on BP

Yesterday's WSJ included an article by Richard Epstein arguing that the best legal regime for dealing with risks created by oil drilling is "full responsibility" on the party creating the risks.  He favors a strict liability system, backed by mandatory insurance to cover losses, with no caps on damages.  The article is here.

--CJR

Two by the Late Gary Schwartz

 

Two papers written by the late Gary T. Schwartz have been posted to SSRN.  The first is Feminist Approaches to Tort Law.  The abstract provides:

This Article finds that the most conspicuous development in tort scholarship during the last fifteen years has been the emergence of a body of writings examining tort law from feminist perspectives. The Article takes advantage of the author's background as a mainstream torts scholar in order to provide an initial evaluation of these writings. One conclusion reached is that the scholarship in question is provocative but unsatisfying, inasmuch as it has failed, at least so far, to connect itself to available empirical information and to the larger themes in tort theory.

The second is Auto No-Fault and First-Party Insurance:  Advantages and Problems.  The abstract provides:

Auto no-fault replaces liability (and liability insurance) with compulsory first-party insurance. However, American no-fault plans take the form of a hybrid of tort and no-fault (unlike no-fault plans in several jurisdictions outside the United States, which are no-fault all the way). In reviewing the advantages of no-fault - by way of effectively compensating accident victims and also reducing the overhead of the legal system - this Article concludes that hybrid plans are so compromised as to prompt little enthusiasm. Accordingly, those who favor no-fault should insist on pure no-fault.

The heart of the Article considers the relevant objections to auto no-fault. A standard objection is that no-fault is unfair, or fails to provide appropriate deterrence, insofar as it removes liability from the shoulders of the negligent driver. This objection fails to appreciate a basic point. Bad driving that imperils third parties imperils motorists as well. Accordingly, no-fault insurers - in this regard resembling liability insurers - will raise premiums to take the motorist's bad driving into account. In light of this, the standard objection to no-fault is significantly overstated.

The Article goes on to identify what it regards as the most important objection to auto no-fault. Under no-fault, the insurance premiums assigned to heavier passenger vehicles (both full-size cars and light trucks) will decline sharply, while the premiums assigned to lighter vehicles (compacts and subcompacts) will increase sharply. This is not due to the inherent safety of heavy vehicles or the inherent unsafety of lighter vehicles, but rather to the interaction between the two: when a heavier vehicle and a lighter vehicle collide, it is the latter's occupants that suffer the more severe injuries. In these circumstances, to reallocate insurance premiums away from heavier vehicles towards lighter vehicles would be unfair, and would produce inappropriate incentives for the purchase of passenger vehicles. To be sure, the problem can evidently be dealt with by regulatory controls on no-fault insurance practices, but such controls would inevitably be awkward.

--CJR

2010 Wacky Warning Labels Finalists

From Walter Olson comes word that Bob Dorigo Jones has announced the five finalists in the 2010 Wacky Warning Labels Contest.   From Jones, the finalists include: 

Never operate your speakerphone while driving," warns a label on a product called "Drive 'N' Talk."

A motorized go-cart helpfully warns consumers that "this product moves when used."

A bottle of swine growth supplement called "Piglet Blast" cautions, "For animal use only."

The Bluetooth headset alerts its users that "use of a headset that covers both ears will impair your ability to hear other sounds."

And a pair of swim goggles alerts users to the risk of pulling them away from the face, lest they "spring back and cause injury."

If you wish to use these in class, you can download pictures of the products here.

- SBS

Your Input Needed On Law Review Survey

Lucy McGough (LSU), James Bowers (LSU), and Richard Wise (UND - Psychology) are trying to assess the current system of student-run law reviews:

For the last several decades, there has been much controversy and discussion about how well the current system of student run law reviews and journals meet the needs of legal scholars, the legal profession, and its student members and how they can be improved. Despite the significance of this controversy, no one has determined the legal community's opinions about them.

The purpose of the present survey is to assess: (1) What law professors, attorneys, judges, and law  review editors think about the current system of student run law reviews and journals; (2) Whether reforms are needed; and (3) If reforms are needed, what they should be.

We are asking for your help with this important survey because the success of any survey depends in large part on the number of people who complete the survey. The present survey is completely anonymous and confidential and only takes about 15-20 minutes to complete. The results of the survey will be reported in a law review article. A link for the survey is enclosed below:

http://www.surveymonkey.com/s/SVJXVNW 

Thank you very much for considering our request.

 

- SBS

Tort Law or Worker's Comp for Workplace Shooting?

A Florida wrongful death suit is testing the reach of the state's worker's compensation statute.  The suit against Publix alleges that the store had no policy or procedure for dealing with workplace violence, and that the resulting shooting by an ex-employee was "substantially certain to occur." The plaintiff's lawyer argues that the state's worker's comp law should not apply because it amounts to an "unconstitutional denial of access to the courts."    ABA Journal has more including a link to the complaint.

- SBS

Guest Blogger Catharine Wells on "The Measure of Injury"

I would like to begin by thanking Martha and Jennifer for their fine book and for asking me to comment on it.  If you are planning to read one book on torts in the next five years this should be it.  This was a book that was waiting to be written.  Twenty five years ago, many of us were interested in a feminist and critical analysis of tort law, but none was forthcoming.   Tort law seemed to be ripe for feminist commentary.  After all, it was centered upon that most masculine of creatures, the average reasonable man.  In addition, it purported to balance the needs of victims and perpetrators and was perhaps the only area of law where it was conceded that perpetrators have needs too.  And finally, torts had rendered women and people of color virtually invisible as identity groups.  When we asked the feminist question – Where are the women? – the answer was:  Here, there and everywhere but not clustered around feminist concerns.  Nevertheless, thirty years after MacKinnon’s book on sexual harassment had shown how feminists could revolutionize whole areas of the law, no book was forthcoming.  Until now.  Finally we have such a book and the question is:  Why did it take so long.  Thinking about this question will help us to understand what a brilliant book this is.  It will also help us to appreciate that there is nothing simple about critical theory and that this is especially true when it analyzes a subject such as torts where the subordinated have been rendered invisible. 

 

Contrast tort law with family law or civil rights law.  Gender and race figure prominently in the legal analysis of these areas.  Since women and racial groups are highly visible, critical theory pursues an obvious agenda.  The critic analyzes traditional law in order to show its contradictions as well as the racist and sexist assumptions on which it is based; (s)he then develops a more adequate description of the experience and needs of subordinated groups; and finally reconstructs the law to take account of these concerns. 

 

Traditional common law subjects are harder to deconstruct.  Perhaps property is the easiest since it invites discussion of ownership and the use of this concept to organize society into haves and have nots.  It also has a history of legitimizing the ownership of persons through slavery and coverture.  Contracts and torts, however, present real methodological difficulties – How can we analyze their effect on groups that do not seem to be present?  Wriggins and Chamallis begin with exactly the right questions – Where are the women and people of color?  And why can’t we see them through the lens of tort law?This requires them to think carefully about the function and purposes of tort law.  Why do we have a tort law?  What purposes is it meant to achieve and how have these aspirations failed subordinated groups?  They also think imaginatively about society.  They ask:  if women and people of color had designed tort law, what would it do for us?  What sorts of wrongs might it address?  Their answer, not surprisingly, focuses on three main areas: 1) losses with respect to reproduction; 2) remedies for domestic violence; and 3) injuries associated with bias and discrimination.  With these answers in hand, they proceed to launch their critical inquiry.  They ask: what are the intellectual structures of tort law that prevent it from addressing these injuries?

 

It is important to see that the answers to these questions are not simple.  It is not this doctrine or that that rules out recoveries for these harms.  They are literally excluded by the basic structures of tort law.  In particular, the authors point to two distinctions that matter.  One is the distinction between negligence and intentional torts with the heavy favoring of negligence recoveries.  The second is the distinction between physical and emotional harm with the heavy favoring of physical harm.  These two preferences – for physical harm and negligence theories – literally rule out of court many of the claims that women and people of color might press.  This is not an obvious explanation.  Surely women’s reproductive harms are physical rather than emotional.  But the truth is, as Wriggins and Chamallis amply demonstrate, most of these complaints are treated as either emotionally caused or as resulting in emotional not physical damage.  For example, if my horse rears up in front of you, causing you a miscarriage, the tort law would treat this as an emotional harm despite the fact that I am physically injured.  It reasons that, since the miscarriage was caused by fear (an emotion) and not by physical contact, you have been harmed in an emotional rather than physical way.

 

The problem with the intentional torts/negligent torts dichotomy is also not obvious.  Nevertheless it operates in an unexpected and ironic way to exclude claims of sexual or racial harassment.   Civil rights plaintiffs often lose their civil rights cases because they are unable to show that the defendant treated them badly because of their race or gender.  They may have been yelled at, threatened, disadvantaged and disparaged, but still there is a need to prove that all of this was motivated by racial or gender prejudice.  The plaintiff, having failed at a civil rights claim because the defendant had not disclosed his true intentions, is left to pursue an intentional tort claim – the assumption is that whatever wrong she has suffered is intentional and cannot be judged by the standard of reasonability.  It is relegated instead to the centuries old mechanisms of intentional torts – a landscape that it is mined with technical requirements and counterintuitive results.  The modern alternative – the relatively new tort of Intentional Infliction of Emotional Distress – requires a stiff showing of “extreme and outrageous” conduct paired with “severe” emotional harm.  In ruling on these claims, some courts have made the common sense observation that being subjected to bad behavior because of one’s race meets the test of “extreme and outrageous,” but not all courts have made this move.  This latter group of courts have separated the behavior from its motivation and simply said that the behavior is not extreme enough to meet the standard.

 

Thus, Chamallis and Wriggins help us to see why tort law has seemed so non-responsive to feminist concerns.  Accomodating the most common tortuous injuries that women suffer requires of full reconceptualization of tort law.   BUT this is not the only problem.  There are at least three others.

 

1.   Tort law deals with accidents and unexpected occurrences of every kind.  Therefore it places little reliance on rules.  Instead tort doctrines are expressed in terms of general instructions that are read to juries.  As I have argued elsewhere these instructions do little more than provide a vocabulary for juries to use in their deliberations.  This means that the unacknowledged and unconscious bias that juries bring into the jury room remains an important element of their final decision.  For example, the authors show how wrongful death awards in Louisiana from 1900 to 1940 reflected these biases with awards for the death of black victims only half of those awarded for white victims. 

2.   Tort law also relies heavily on the concept of causation.  Causation is not a scientific concept.  A belief that event A causes event B is a product not only of our understanding of how things work but also our understanding of what should be taken as normal and what is out of the ordinary, what is important and what is not. These baseline evaluative judgments may rest on stereotypes and may result in judgments that take male or white as normal and female and being of color as somewhat less than normal.

3.   Finally much of the bias in the tort system is hidden in the evidence.   How do we characterize people’s attitudes and behavior?  What is perceived as threatening? 

More particularly there is the question of valuation.  Is a woman’s arm more or less valuable than a man’s.  Surely, defendants can’t argue that women are worth less than men; but they can, as the authors point out, use scientific tabulations of earnings that are based on gender and race.

 

When you put all this together – and  document it thoroughly as the authors do – the result is a much different picture of tort law and the possibilities it represents.  Suddenly, those of us who think about tort reform and progressive change have something that looks like an agenda.  Not surprisingly, it is not a simple agenda.  It does not focus us on changing the phrasing in one section or another of the Restatement.  Rather it is a program for using the tort law.  For example, more suits need to be brought for domestic violence.  Given that such claims are not covered by most liability insurance, we need to figure out how to fund them, how to try them, and how to collect on judgments.  We need to bring more cases of race and sex harassment and we need more social science to document the harms they cause. 

 

So I thank Jennifer and Martha for their book.  I thank them for the light they have shed on tort law and equally for the light they shed on the mechanisms of racial and gender subordination. 

Chamallas & Wriggins: "The Measure of Injury"

The Measure of Injury:  Race, Gender, and Tort Law by Martha Chamallas (Ohio State) and Jennifer Wriggins (Maine) was published a little over a week ago by NYU Press.  The advance reviews:

"This book is brimming with insights about how societies do and should express what matters in assigning liability for human pain and loss."  Martha Minnow (Harvard)

"This book asks important questions about the tort system....A promising direction for scholarship...."  Keith Hylton (Boston University)

An "Author Meets Readers" panel discussed the book at Law & Society late last month.  Catharine Wells (Boston College) was kind enough to provide me a post based on her remarks from the panel.  Her guest post will be up tomorrow.

--CJR

Sending Email With Links To Defamatory Blog Post Supports Libel Claim Under Texas Law

The ABA Journal reports that a federal bankruptcy judge has held that, under Texas law, "sending an e-mail message with a hyperlink to a defamatory blog post can be considered a publication for the purposes of a libel claim."   The court further found that the email satisfied the actual malice standard for public official defamation claims.  Notably, the libel defendant had not written the blog post, but only included links to the blog posts in his email.  

Thanks to Lisa Smith-Butler for the story.

- SBS

Georgia Forbids Implied Private Causes of Action

Last week, Georgia Governor Sonny Perdue signed into law the Transparency in Lawsuits Protection Act (S.B. 138).  The bill creates a new code section that provides "[n]o private right of action shall arise from any Act enacted after the effective date of this Code section unless such right is expressly provided therein."  While barring implied rights of action,  Part (b) of the Act preserves breach of a statutory duty as evidence of negligence. 

Ted Frank at Point of Law has more and links.

- SBS

PRI Releases 2010 Tort Liability Index Rankings

The Pacific Research Institute has released its 2010 U.S. Tort Liability Index, which ranks the states' "tort climate."   According to the press release, the "best" tort climates are (in order) Alaska, Hawaii, North Carolina, South Dakota, North Dakota, Maine, Idaho, Virginia, Wisconsin and Iowa.   The "worst" tort climates are (in order) New Jersey, New York, Florida, Illinois, Pennsylvania, Missouri, Montana, Michigan, Connecticut, and California.

-SBS

Twerski & Henderson on Reaching Equilibrium in Tobacco Litigation

Aaron Twerski (Brooklyn) & James Henderson (Cornell) have posted to SSRN Reaching Equilibrium in Tobacco Litigation.  The abstract provides:

Recent pro-plaintiff developments in tobacco litigation may lead to the conclusion that such litigation will go on endlessly and threaten the financial viability of the tobacco industry. This article takes the opposite position. Although the industry may take some near-term losses, it is far more likely that tobacco companies will survive short-term losses and that tobacco litigation will reach a stable equilibrium within the next fifteen to twenty years. The threat of third-party payer claims is no longer viable. Courts have unanimously rejected them. With the exception of cases pending in Florida and West Virginia, there are few individual personal injury claims pending throughout the United States. Both the Florida and West Virginia trial plans are subject to serious constitutional challenge. Two possible serious threats to the tobacco industry remain – punitive damage awards and cases for economic loss based on fraudulent marketing of light cigarettes. The former are likely to come under serious constitutional scrutiny and the latter cases are viable only as class actions. Under the Class Action Fairness Act (CAFA), new cases will end up in federal courts which have been hostile to class certification in cigarette litigation. The relatively few pre-CAFA class actions that have been certified in state courts will have to grapple with difficult issues in attempting to assess damages.

--CJR