Friday, July 30, 2010
Thursday, July 29, 2010
Last year, China passed a new tort liability statute. Now, Thailand is on the verge of a new system to handle medical malpractice. The law would create a compensation fund that hospitals would have to pay into that would compensate victims of medical errors. Many Thai doctors are opposed to the law. They argue it has flaws that should be addressed before the law takes effect. Also:
"It means our staff would have to be extra careful during work, which would decrease efficiency," said Somkid Auapisithwong of Thai Federation of Doctors, Main Hospitals and General Hospitals, which looks after the interests of medical practitioners in state hospitals. "We're already very stretched. Some of our nurses have to work almost 365 days. This would add more stress to our staff. They would have to be extra careful with all sorts of risks and this will hinder their work."
Taiwan News has the story.
Wednesday, July 28, 2010
Robert Stevens (University College of London) has posted to SSRN Rights and Other Things. The abstract provides:
This paper seeks to differentiate rights from other things with which they are frequently confused. The focus is upon rights within private law, but this is used to emphasize the distinctiveness and importance of this area. The topics covered are in sequence: (i) Rights and Loss, (ii) Rights and Gains (which may be skipped by those more interested in theory), (iii) Rights and Interests, (iv) Rights and Deontology, (v) Rights and Corrective Justice, (vi) Rights and Private law.
Tuesday, July 27, 2010
As we approach a new year and a new semester of Torts, the (nerdy) mind turns to duty/no-duty cases. Happily, the Massachusetts Supreme Judicial Court has provided, with a new case eliminating the no-duty rule in connection with "natural" ice buildups, instead, consistent with the trend, holding the defendant to a general duty of reasonable care. The key language:
We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to "act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk." Young v. Garwacki, 380 Mass. 162, 169 (1980), quoting Sargent v. Ross, 113 N.H. 388, 397-398 (1973). See Reardon v. Shimelman, 102 Conn. 383, 388 (1925) ("The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction"). This introduces no special burden on property owners. If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger. See Sheehan v. Roche Bros. Supermarkets, 448 Mass. 780, 782-784 (2007); Restatement (Second) of Torts § 343 (1965). See also Reardon v. Shimelman, supra at 389 ("an accumulation of ice or snow upon a common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of a reasonable oversight ought to have known, of the existence of a dangerous condition and failed to exercise reasonable care to provide against injury by reason of it").
Monday, July 26, 2010
According to the New York Law Journal (via law.com), a New York judge has dismissed a suit brought by a teenager against her former classmates for comments made on a Facebook page. Although the judge found the comments "puerile" and "vulgar," they did not constitute statements of fact to satisfy a defamation claim.
Friday, July 23, 2010
If you have not been to New York City recently, you may not be familiar with the Naked Cowboy, a street performer in Times Square who wears only cowboy boots, a cowboy hat, a guitar, and tidy whities. Naked Cowboy has filed suit against a female Times Square street performer, who dresses in little more than her guitar, creatively known as "Naked Cowgirl."
You can't make this stuff up.
Admittedly, this may not be very torts related as I can't tell exactly what claims the plaintiff is bringing. You can find the details at WSJ Law Blog.
Thursday, July 22, 2010
Maurice Stucke (Tennessee) has posted to SSRN When a Monopolist Deceives. The abstract provides:
This essay uses one context - a monopolist’s deceptive advertising or product disparagement - to illustrate how competition authorities and courts should evaluate a monopolist’s deception under the federal antitrust laws. Competition authorities should target a monopolist’s anticompetitive deception, which courts should treat as a prima facie violation of the Sherman Act without requiring a full-blown rule of reason analysis or an arbitrary, multi-factor standard.
Wednesday, July 21, 2010
I'm quoted in Ohio State's newspaper, The Lantern, on the Erin Andrews suit. Ohio State was a named defendant due to its ownership of the Blackwell Inn.
The suit is here: Download Erinandrewscivilsuit (pdf)
More coverage is here:
Tuesday, July 20, 2010
Monday, July 19, 2010
The National Law Journal (via law.com) reports that a federal district court judge has thrown out the plaintiff's causation expert in the "popcorn lung" case. The suit alleged that microwave popcorn caused the plaitniff's bronchiolitis obliterans, also known as "popcorn lung." WIth no causation expert, plaintiff's suit was dismissed.
Thanks to Lisa Smith-Butler for the story.
Friday, July 16, 2010
John Jeffries (UVa) has posted to SSRN What's Wrong with Qualified Immunity?. The abstract provides:
Originally delivered as the Dunwody Lecture at the University of Florida, this paper argues that “qualified immunity needs a course correction.” The Supreme Court’s attempt to strike a balance between the “importance of a damages remedy to protect the rights of citizens” and the “public interest in encouraging the vigorous exercise of official authority” (Harlow v. Fitzgerald) may have seemed sensible in the abstract, but has broken down in administration. Today, the law of qualified immunity is complicated, unstable, and overprotective of government officers. This paper documents those defects and proposes reforms designed to “get constitutional tort law back on track.”
(Via Keith Hylton's Torts & Products Liability eJournal)
Just seeing the title reminded me of the arguments Professor Jeffries made in class 15 years ago.
Thursday, July 15, 2010
Wednesday, July 14, 2010
Mike Rustad (Suffolk) has posted to SSRN his provocative essay The Endless Campaign: How the Tort Reformers Successfully and Incessantly Market Their Groupthink to the Rest of Us. The abstract provides:
Neo-conservatives often employ the theme of personal responsibility to marginalize plaintiffs seeking compensation for mass torts. For example, the tort reformers use techniques of blaming the victim successfully in defending tobacco products liability claims. This groupthink about corporate victimhood deflects attention away from the true victims of defective products, negligent medicine, or unreasonably risky activities. Similarly, neo-conservatives redefined the term "reform" to signify caps and other limitations on recovery for injured plaintiffs in an effort to improve the functioning of the American civil justice system. Tort law's remarkable ability to continually adapt to old causes of action to new threats and dangers makes it an important institution of social control. A strong regime of tort law ensures that not even multi-billion dollar industries, such as those represented by the tort reform movement, are beyond the reach of the law. Tort law is, as it has always been, forward-looking with the ability to confront new social problems and conditions. The tort reformers endless campaign of misinformation threaten to diminish the ability of our civil justice system to evolve to meet the emergent hazards of the twenty-first century.
(Via Keith Hylton's Torts & Products Liability eJournal)
Tuesday, July 13, 2010
Bloomberg Businessweek reports that consumers have filed a class action against Johnson & Johnson based on the recall on children's pain and allergy medicines back in April. The suits allege fraud and racketeering claims.
Monday, July 12, 2010
From David Rosen at the Penn Program on Regulation comes news of a new book, Import Safety: Regulatory Governance in the Global Economy. From Penn:
In recent years, numerous imports have prompted public alarm, including:
· imported toys coated with lead paint
· milk products and pet food contaminated with the hazardous chemical melamine
· drywall that leaches noxious fumes in homes across the country
· blood thinner for kidney dialysis patients masked with a lethal chemical
In today’s era of global trade, more food, drugs, and other goods move across national borders than government inspectors can ever fully test for safety. Import Safety’s analyses and proposals therefore come at an pivotal time for consumer protection.
Published by the University of Pennsylvania Press, Import Safety contains the results from a major project organized by the Penn Program on Regulation. With chapters written by leading legal scholars and social scientists, this new book combines careful diagnosis of the import safety problem with analysis of innovative policy solutions.
For more information, please visit www.importsafetyregulation.org.
Friday, July 9, 2010
On last night's "Stossel" on the Fox Business Network, John Stossel focused on tort lawyers. You can gather his take on the issue from the title, "Parasitic Tort Lawyers." He addressed the same topic in his syndicated weekly column.
If you want to see the show - and see what your students think tort law is all about before they open the case book - the show re-runs Fridays at 10 p.m., Saturdays at 9 p.m. and 12 midnight, and Sundays at 10 p.m. (all times eastern).
Thursday, July 8, 2010
At a recent Casualty Actuarial Society meeting, John Mize, consulting actuary at Towers Watson, told the assembled actuaries that the Affordable Care Act could have a positive effect on medical malpractice. He noted that some provisions of the law emphasize "value-based compensation programs:"
Since hospitals will get penalized if they have a large proportion of re-admissions, this may motivate them to provide better care, which would result in more favorable outcomes and fewer claims, Mr. Mize said.
Some panelists also noted potential negative effects of the reform, such as the short-term potential to overload the primary care network. National Underwriter Property And Casualty Insurance News has the story.
Wednesday, July 7, 2010
Gregory Keating (USC) has posted to SSRN Is Tort a Remedial Institution?. The abstract provides:
In the past 30 years, philosophers of tort have performed invaluable work in restoring the concept of a “wrong” to prominence in tort scholarship, and in building a persuasive case that no adequate account of tort can replace the idea of a “wrong” with the idea of a “cost”. The structure of tort adjudication, which pits an injured victim against the party allegedly responsible for injuring her, is powerfully explained and justified by the thesis that the plaintiff has a claim for redress against the defendant when and because the defendant has wronged the plaintiff. The competing claim that tort adjudication is a forward looking instrument for minimizing the combined costs of paying for and preventing accidental harms is much more forced and difficult to sustain.
Less persuasively, however, modern philosophers of tort have spelled out the general claim that tort is a law of wrongs – and their reciprocal, rights – in the more particular thesis that tort is about the rectification of wrongs. Influential legal philosophers have argued, for example, that “tort law is best explained by corrective justice” because “at its core tort law seeks to repair wrongful losses”. Other theorists, marching under the banner of “civil recourse” have argued that the normative essence of tort law lies in the plaintiff’s right to demand redress from the defendant. The claim that remedial responsibilities are the core of tort law ought to give us pause. Calling responsibilities of redress the heart of tort law makes tort a remedial institution, an institution whose raison d’etre is repair. Yet in tort law itself remedial responsibilities to repair wrongful losses arise out of failures to discharge antecedent responsibilities not to inflict wrongful injury in the first instance.
This paper argues that remedialist accounts of tort are right to place the concept of a wrong – and its reciprocal, a right – at the heart of tort law, but wrong to give those concepts an essentially remedial interpretation. Remedial responsibilities in tort are subordinate, not fundamental. They are logically subordinate because they are conditioned on and arise out of antecedent wrongs. These wrongs are not themselves corrective injustices, but failures to respect rights. Remedial responsibilities are normatively subordinate because the reason why tortfeasors are obligated to undo the harms wrought by their torts is that they have failed to discharge their primary responsibilities to avoid committing those torts in the first place. Breaching those responsibilities leaves them undischarged, and precludes full compliance with those responsibilities. Repairing harm wrongly done is a second-best way of discharging an obligation not to do harm wrongly in the first place.
Remedialist theories thus put the cart before the horse. Rights and remedies form a unity but it is a unity in which rights govern remedies: the role of remedies is to enforce and restore rights. We need to reorient tort theory in a way which does justice to remedialist insights about the centrality of rights and wrongs to tort law, but which places primary rights and responsibilities at the center of the subject.
Tuesday, July 6, 2010
The United States Court of Appeals for the Eighth Circuit has affirmed the dismissal of an American Airlines passenger's false imprisonment suit after being stuck on an airplane for 9 1/2 hours. How Appealing has a short news blurb from AP and a link to the opinion.
Monday, July 5, 2010
Stan Abrams at China Hearsay reports that Baidu is the first defendant to have a judgment entered against it under China's new Tort Liability Law. Abrams reports that Baidu was found liable for harming the plaintiff's reputation by allowing negative information to be posted on Baidu Baike, a Wikipedia-like platform.
Much more at China Hearsay.