April 3, 2010
Goldberg & Zipursky on Products Liability
John Goldberg (Harvard) & Benjamin Zipursky (Fordham) have posted to SSRN The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell. The abstract provides:
In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, “Uneasy,” comes nowhere near to demonstrating what it purports to demonstrate. We also identify various “benefits” provided by tort liability for product-related injuries that Polinsky and Shavell entirely fail to consider. In fact, the case for some form of products liability - whether fault-based or defect-based - is really quite easy.
April 2, 2010
Personal Injury Roundup No. 73 (4/2/10)
Happy Passover! Happy Easter! In torts...
Reform, Legislation, Policy
- The health care bill's medical liability language. (Wood/Point of Law)
- Two by Cathy Sharkey: On Punies, On Preemption.
- Man sues neighbor over alleged deleterious effects of her use of electronic devices. (ABA Journal)
- Palestinian Authority loses another round in NY Appellate Division over $116M terror verdict. (Turkewitz)
- NY: $50,000 pain-and-suffering verdict for 90 days of back pain upheld on appeal. (Hochfelder)
Trials, Settlements and Other Ends
- OR: At least $1.3M dram shop settlement in the deaths of two women (KATU.com)
- NJ: AstraZeneca wins first Seroquel case. (Abnormal Use, via Olson/Point of Law)
- Panel on "Pluralism in Tort Law and Litigation" at the 13th Annual Conference of the Association for the Study of Law, Culture, and the Humanities. (Stier/Mass Tort Profs)
April 1, 2010
Monday's Guest Blogger: Alex Long
Alex Long is Associate Professor of Law at the University of Tennessee College of Law. Professor Long moved to UT in 2007 after teaching at the Oklahoma City University School of Law for four years. He began his teaching career at the West Virginia University College of Law, where he taught Contracts, Disability Law, and Legal Research & Writing. Before entering academia, Professor Long was an associate in the labor group of the Clarksburg, West Virginia office of Steptoe & Johnson.
Professor Long teaches and writes in the areas of Torts, Professional Responsibility, Employment Law, and Disability Law. His scholarship in this area has been published in numerous journals, including the Minnesota Law Review, Washington Law Review, Washington & Lee Law Review, and the Georgetown Journal of Legal Ethics.
Professor Long received his law degree from the College of William & Mary in Williamsburg, Virginia, where he was Topics & Research Editor for the William & Mary Law Review. He received the W. Allen Separk Faculty Scholarship Award in 2007 for his article in the Florida Law Review.
March 31, 2010
Congratulations to Sheila!
TortsProf's Sheila Scheuerman has been awarded tenure at the Charleston School of Law!
Sheila has published widely on class actions and punitive damages. Her most recent work focuses on the requirement of harm for tort causes of action. We congratulate Charleston on its decision.
--Bill and Chris
First Issue of Journal of European Tort Law Available
The first issue of the Journal of European Tort Lawis now available, and there is free online access for a limited time. The table of contents and the online access details follow:
JETL 2010, Issue 1 - Contents:
Helmut Koziol/Ken Oliphant, Preface (2010) 1 JETL 1
Lord Bingham of Cornhill, The Uses of Tort (2010) 1 JETL 3
Nils Jansen, The Concept of Non-Contractual Obligations: Rethinking the
Divisions of Tort, Unjustified Enrichment, and Contract Law (2010) 1
Vaia Karapanou/Louis Visscher, Towards a Better Assessment of Pain and
Suffering Damages (2010) 1 JETL 48
Michael G Faure/Niels J Philipsen, Fees for Claim Settlement in the
Field of Personal Injury: Empirical Evidence from the Netherlands (2010)
1 JETL 75
Ulrich Magnus, Why is US Tort Law so Different? (2010) 1 JETL 102
Free Online Access:
The entire content of the first issue is available for free online for a
limited time to anyone who registers on the website:
http://www.degruyter.de/journals/jetl/detailEn.cfm/. On registration, you will be sent an
email confirmation with a link to activate your online access. The links
will not work until you have done so. Please take a look - and encourage
your colleagues and students to do so too! I hope you like what you see.
I also hope that those of you with relevant research interests will
submit suitable papers to the Journal for publication.
See here for further info and links:
The Journal will be officially launched at next week's Annual Conference
on European Tort Law, for which registration is still possible:
Thanks to Ken Oliphant for the tip.
March 30, 2010
Ohio AG Explains Why He's Not Suing the Federal Goverment
As I mentioned in Friday's Roundup, fifteen states are suing the federal government over the recently enacted health reform law.
Ohio is not one of those states, and in a National Law Journal article published yesterday, the Ohio AG explains his decision not to join those suits.
Open Letter to Law Faculty: Maryland Legislature Seeks to Stop Environmental Case in UMD Clinic
Mike Rustad asked that we post the following:
Dear Law Faculty,
As you may have heard, the University of Maryland School of Law is under attack by a group of legislators unhappy with the work of the Environmental Law Clinic. Specifically, the legislators seek to stop the clinical faculty and students from working on a case that alleges pollution by a poultry corporation by denying funding to the law school until and unless the law school turns over information about the clinic operation, including confidential client information. The Baltimore Sun reported on the problem... [Ed. note: ABA Journal also reports on this story]
This is a clear attack on both the professional responsibility and academic freedom of the clinical faculty and their students. Rather than have the legal issue of the poultry company resolved in the courts pursuant to the rule of law, a group of the legislators are doing the bidding of the business and they seek to use the denial of state funding to intimidate the law school dean and faculty. If the Maryland Legislature succeeds in this effort, it will set a dangerous precedent that could spread to other states. If you agree that law faculty and deans should stand up and help the University of Maryland School of Law, please reply privately to Peter Joy at firstname.lastname@example.org to have your name added to the following [attached] letter: Download Peter Joy Letter When you reply, please list your name and title as you would like it to appear at the end of the following letter. If you disagree with any portion of the letter, and would prefer to send your own personal e-mail, the list of state legislators e-mail addresses are [attached]: Download Maryland_Legislators
Please act now. This matter will be considered by the Maryland State Legislature this week.
Thank you very much.
Peter A. Joy
Washington University in St. Louis
One Brookings Drive, Campus Box 1120
St. Louis, MO 63130
(314) 935-6445 phone
(314) 935-4029 fax
March 29, 2010
Guest Blogger David Owen: "Foreseeability in Accident Law"
Foreseeability often gets a bum rap in tort. As ephemeral as foreseeability by nature plainly is, most of us appreciate how important the concept is in shaping the outer boundaries of negligence responsibility. Courts widely assert that foreseeability resides importantly in duty, and that recoverable harm, to be compensable, must be classifiable as foreseeable. Of central importance, though often simply ignored, is the fact that the very notion of breach of duty—of legal “wrongdoing”—involves a blameworthy choice to act one way rather than another in the face of the foreseeable consequences of the actor’s contemplated action and its alternatives.
Only recently have I come to realize how deep the roots of foreseeability are in providing negligence law with moral succor. Thanks to a conference at Wake Forest last April marking the conclusion of central work on the Restatement (Third) of Torts, hosted by Reporters Mike Green and Bill Powers, Ben Zipursky and I both had an opportunity to focus closely (me, for the first time) on the role of foreseeability in negligence law. Ben and I both concluded that foreseeability properly plays a larger, deeper role in negligence law than the Third Restatement and many commentators believe it should. While Ben focuses closely on the internal coherence of tort law, my focus is on its moral power. And so I was struck by the salience of Jim Henderson’s remarks, in his perceptive March 15 guest blog, reminding us that “at its core, tort law’s purpose is to help to define what is just, right and fair” according to “relational notions of right and wrong.”
The other side of conduct that is “right and fair,” of course, is wrongdoing, the central feature of the tort of negligence. Wrongdoing suggests that an actor chose to act in a way that violated some norm of proper behavior (say, failing to adhere to customary behavior in a particular relationship or failing to accord equal respect to the interests of a stranger) rather than in an alternative way that would have avoided the kind of harm the actor caused. Ascribing moral character (blame or praise) to a choice to risk or avoid the risk of harm implies the actor’s ability to conceive (“foresee”) the consequences of the chosen action. It seems fundamentally unfair, and quite illogical, to blame a person for failing to avoid a consequence he or she could not imagine. Foreseeability thus is inextricably bound up in the notion of wrongdoing, which includes the notion of how far responsibility for wrongdoing should extend.
Foreseeability, I think, also belongs in judicial duty determinations, although the Reporters for the Third Restatement disagree, reasoning that foreseeability is intrinsically factual and so should be left to breach of duty determinations for juries alone to decide. Courts, however, routinely state that foreseeability is the first inquiry in duty determinations, and I think they are right, since it makes little sense to me to impose duties on people to avoid risks of harm they fairly cannot be expected to contemplate. While I agree with the Reporters that judges ordinarily should not use the foreseeability issue in duty determinations to hide factual or important policy choices, I believe that courts correctly consider the foreseeability of certain types of risk at an abstract, categorical level just as they so consider other reasons for defining types of situations where the normal principles of negligence law should not tread.
In teaching tort law over the years, I now realize that I may have failed to give foreseeability its due. During the preliminary examination of negligence concepts, I normally stop to linger on the Hand formula (with delight, if perhaps a bit too long), dwelling on some of the many hidden mysteries in B, and P, and L, but typically paying little heed to the small child crouching in the shadows—foreseeability. While I do touch briefly on the notion of foreseeable risk in these early days of negligence inquiry, my usual thought is that I’ll return to it—and address it fully—down the road when we get to proximate cause, at which time foreseeability rears its head hesitatingly in Polemis, proudly in Wagon Mound I, and then powerfully in Palsgraf. It is then (and only then) that I normally return my students to a consideration of the role of foreseeability in breach, reviving a focus on the Hand formula where foreseeability enhances the inquiry in suggesting negligence if B < (f) P x L.
This delayed approach to foreseeability may be necessary in allowing the burgeoning legal minds of first-semester students time to develop some preliminary blossoms of negligence understanding, but I now am thinking that I should dwell a bit more in those earlier classes on how the blameworthiness of a choice to act one way rather than another rests necessarily on the foreseeable consequences of the choice, be those consequences good or bad. Putting aside whether negligence should be defined primarily in terms of costs and benefits, section 3 of the Third Restatement—thanks to the considered efforts of initial Reporter Gary Schwartz—now helpfully defines negligence in terms of foreseeable consequences—the foreseeable likelihood of injury, and its foreseeable severity (in Hand formula terms, the foreseeability of both P and L). For torts teachers who provide the section 3 definition to their students, foreseeability now will squarely be on the table at the inception of the inquiry into how a norm of proper behavior should be defined. Although I still probably will defer much of the discussion on the deeper mysteries of foreseeability in my own torts classes until we examine proximate cause, I am glad the new Restatement gives such prominence to a feature I believe to be the moral glue of the concept of wrongdoing in the law of accidents.
--David Owen, Carolina Distinguished Professor of Law
University of South Carolina School of Law