TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, March 19, 2010

Personal Injury Roundup No. 71 (3/19/2010)

A short week, since this is my spring break and I'm at the Cape (for the first time!).

Reform, Legislation, Policy

New Lawsuits

  • Walter Olson takes a preemptive strike against the Toyota suits, based in part on research done by Ted Frank.  (National Review Online; see also this Atlantic piece
  • In the dog-didn't-bark category (if that's the right use of that phrase), a couple of years ago, I did a much-linked-to post about a teen who was hit and killed by a roller coaster train after he jumped at least one fence, passing by fairly emphatic warning sign.  At the time, his survivors and their attorney were making noises as if a lawsuit was coming; so far as I can tell, that hasn't happened.


  • Interesting summary judgment reversal on a go-kart injury case (




March 19, 2010 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, March 18, 2010

Introducing Guest Blogger Richard Nagareda

Nagareda   Monday's guest blogger is Richard Nagareda.  Nagareda is Professor of Law and Director of the Cecil D. Branstetter Litigation Dispute Resolution Program at Vanderbilt University Law School. 

Nagareda joined the Vanderbilt faculty in 2001.  Before joining the Vanderbilt faculty, Nagareda taught on the faculty of the University of Georgia School of Law and as a visitor at the University of Texas School of Law. Before joining the academy, Nagareda clerked for Judge Douglas H. Ginsburg, of the D.C. Circuit, and practiced in the Office of Legal Counsel of the United States Department of Justice and as an associate at Shea Gardner in Washington, D.C.

At Vanderbilt, Nagareda teaches courses on evidence and complex litigation and a year-long seminar for third-year students on the civil litigation system. He has been recognized with the Hall-Hartman Award for Excellence in Teaching, an award based on students' votes, most recently in 2009, and he held the Tarkington Chair for Teaching Excellence, a three-year appointment, from 2006-09.

Nagareda's recent scholarship explores the impact of class action lawsuits on the pursuit of legal rights. In 2003, he was appointed as Associate Reporter for the American Law Institute project on Principles of the Law of Aggregate Litigation. His scholarly works are too numerous to list.  Recent work includes Mass Tort in A World of Settlement (U. Chigao Press 2007), "Aggregate Litigation across the Atlantic and the Future of American Exceptionalism,” 62 Vanderbilt Law Review 1 (2009), Class Certification in the Age of Aggregate Proof,” 84 New York University Law Review 97 (2009), Class Actions in the Administrative State," 75 University of Chicago Law Review 603 (2008), and "Class Settlements under Attack," 156 University of Pennsylvania Law Review 1649 (2008) (with Samuel Issacharoff). 


March 18, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 17, 2010

Polsky & Markel on Taxing Punitive Damages

Gregg Polsky & Dan Markel (both Florida State) have posted to SSRN Taxing Punitive Damages.  The abstract provides:

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believed they deserved to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our view, however, such a blanket nondeductibility rule would, notwithstanding its theoretical elegance, be ineffective in solving the under-punishment problem. In particular, defendants could easily circumvent the nondeductibility rule by disguising punitive damages as compensatory damages in pre-trial settlements.

Instead, the under-punishment problem is best addressed at the state level by making juries “tax aware.” Tax-aware juries would adjust the amount of punitive damages to impose the desired after-tax cost to the defendant. As we explain, the effect of tax awareness cannot be circumvented by defendants through pre-trial settlements. For this and a number of other reasons, tax awareness would best solve the under-punishment problem even though it does come at the cost of enlarging plaintiff windfalls. Given the defendant-focused features of current punitive damages doctrine, this cost is not particularly troubling. Nonetheless, a related paper of ours furnishes a strategy for overcoming this tradeoff through some basic reforms to punitive damages law.


March 17, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

All Things Prosser

Monday was William Prosser's birthday (he was born in 1898 in New Albany, Indiana).  Just in time to celebrate, Neil Richards (Washington University) and Daniel Solove (GW/CoOp) posted to SSRN Prosser's Privacy Law:  A Mixed Legacy.  The abstract provides:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Solove's post at CoOp about the article is here.

Additionally, my piece, The Prosser Notebook, was published last week.  The final version is available here.


March 17, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

2010 Clifford Symposium at DePaul

DePaul will host the 16th Annual Clifford Symposium, "The Limits of Predictability and the Value of Uncertainty," on April 8 and 9.  More information is here.  As usual, there is a fantastic group of presenters, including Tom Baker (Penn), Margaret Berger (Brooklyn), Anita Bernstein (Brooklyn), Howard Erichson (Fordham), Marc Galanter (Wisconsin), Mark Geistfeld (NYU), Stephen Gilles (Quinnipiac), Stephan Landsman (DePaul), Valerie Hans (Cornell), Elizabeth Mertz (Wisconsin), Richard Nagareda (Vanderbilt), Robert Rabin (Stanford), Jeffrey Rachlinski (Cornell), Adam Scales (W&L), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Neil Vidmar (Duke), Stephen Yeazell (UCLA), and Ben Zipursky (Fordham).

March 17, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 16, 2010

9/11 Responders Suit Settles; Fairness Hearing Scheduled

The New York Daily News reports on the $575 million settlement reached in the 9/11 "first responders" lawsuits.  As the Daily News reports, Judge Hellerstein has delayed his approval and instead is "taking a week to figure out how big a cut the lawyers will get."   Judge Hellerstein has also scheduled a fairness hearing for April 12th.

Point of Law and Mass Torts Profs each have more on these developments.


March 16, 2010 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Lahav on "Rough Justice and the Problem of Value in Tort Law"

Alexandra Lahav (UConn/ Visiting Fordham) has posted "Rough Justice and the Problem of Value in Tort Law" on SSRN.  The abstract provides:

This Essay argues the counterintuitive position that in our tort system, individual justice is rougher than justice on a mass scale. The reason for this is that mass tort cases can be resolved collectively using rigorous transparent social science methods that can ensure equal treatment of similarly situated litigants. Individual justice, by contrast, allows cases to be resolved in a largely hidden system of comparative valuation using loose methods that are unlikely to result in like cases being treated alike. To do justice courts must use rigorous, transparent methods of case valuation.

In addition to this key insight, this Essay makes two contributions. First, it demonstrates a pragmatic way of thinking about procedural justice by measuring existing procedures against widely recognized principles. In this case, I compare sampling procedures with principles of equality, fairness and distributive justice. Second, it uncovers a pernicious assumption that has been heretofore ignored by scholars: contrary to popular belief, there is no objective way to monetize injuries. All justice in tort cases is rough justice. This is the problem of value in tort law. The solution to this problem is properly administered sampling procedures.


March 16, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 15, 2010

Henderson on "The Moral Foundation of Tort"

Up until recently I was agnostic on the question of whether tort law reflects ends-in-themselves moral values or is simply a positive manifestation of the instrumental means with which to achieve politically-selected social welfare ends.  I am now persuaded that the first of these is correct—tort law rests on a noninstrumental moral base.  Because economic analysis offers plausible explanations of much of what tort law seeks to achieve, I am indebted to Ernie Weinrib (Deterrence and Corrective Justice, 50 U.C.L.A. L. Rev. 621) for explaining how, by relying on a conceptually sequenced argument, tort law can have a moral base and nevertheless embrace a deterrence-based implementation apparatus that is consistent with much of what law and economics has to say about tort.  Fairness principles trump efficiency when the two are at odds; but once fairness concerns are adequately addressed, tort law is free to pursue efficiency objectives.

    I reserve this “fairness at the core” assessment for the “regulatory” elements of substantive law—tort law, criminal law, individual constitutional rights, and the like.  Regarding “constitutive” or “enabling” elements of substantive law—contracts law, property law, business organizations, constitutionally-established structures of government—I take a positivist instrumental view.  The substantive rules governing these areas supply the practical means by which individuals and groups are empowered to achieve their own, sometimes politically chosen, ends and goals.  They do not, as does tort, primarily focus on what is right or wrong.  Of course, constitutive areas of law contain regulatory, fairness-based sub-rules within them.  For example, contracts law contains limited moral-based elements of tort.  But I believe that this constitutive/regulatory distinction holds up reasonably well under analysis.

    As for the legal system viewed more broadly, I adopt a positivist, means-to-human ends approach.  I am indebted to Lon Fuller (The Morality of Law) for his distinction between the external and the internal moralities of law.  (Internal moral principles apply to the processes by which law guides human conduct.)  Fuller, who was still teaching at the Harvard Law School when I was a student in the early 1960s, took a natural-law, fairness-based view of internal morality; but he adopted a positivist, means-to-ends view of the external morality of law.  In any event, I agree with Fuller that the proper positivist view of our legal system is not one based on a manifested (even if legitimated) threat of force or exercise of social power, but rather is based on cooperative efforts to achieve shared social purposes. 

    Thus, I now believe that the law of torts imbedded within our legal system is based on, and at its core reflects, noninstrumental principles of fairness—relational notions of right and wrong.  I have not worked out exactly what those notions are—I probably don’t have the necessary skill-set and I may not live long enough to make peace with it.  But from here on out I prefer to view tort cases as essentially morality plays rather than as merely efforts to assist in the efficient allocation of scarce resources.  Weinrib has convinced me that in many (most?) instances tort cases can be both; but at its core, tort law’s purpose is to help to define what is just, right and fair.

- James A. Henderson, Jr.   
Cornell Law School 
Frank B. Ingersoll Professor of Law 


March 15, 2010 in Guest Blogger | Permalink | Comments (1) | TrackBack (0)