TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, April 8, 2010

Introducing Guest Blogger Phoebe Haddon

Phaddon Monday's guest blogger is Phoebe Haddon.  Haddon is Dean and Professor of Law at the University of Maryland School of Law.

Dean Haddon joined Maryland Law after more than 25 years as a distinguished faculty member at the Temple University Beasley School of Law. An accomplished scholar on constitutional law and tort law, Dean Haddon is the co-author of two casebooks in those fields (namely, Tort Law: Cases, Perspectives and Problems (Lexis Nexis ed., 2007)), and has written numerous scholarly articles on equal protection, jury participation, academic freedom, and diversity.

Dean Haddon has provided leadership to numerous organizations dedicated to improving American legal education. She serves on the Council of the American Bar Association Section on Legal Education and Admission to the Bar, the official accrediting body of American law schools. She has served as co-president of the board of governors and member of the executive committee of the Society of American Law Teachers, member of the executive committee of The Association of American Law Schools, and trustee of the Law School Admissions Council.

Actively engaged in supporting the work of the Pennsylvania bench and bar, Dean Haddon served as a member of the Gender Commission of the Third Circuit Task Force on Equal Treatment in the Courts and as a member of the Race Subcommittee of the Supreme Court of Pennsylvania's Committee on Racial and Gender Bias in the Justice System. She was a member of the City of Philadelphia Board of Ethics, and worked on bias and diversity-related issues in the Philadelphia Bar Association. Dean Haddon is also a member of the Board of Trustees of the Pennsylvania Bar Institute.

Dean Haddon earned an LLM from Yale Law School and a Juris Doctor, cum laude, from Duquesne University School of Law, where she was editor-in-chief of the Duquesne Law Review.  She received a bachelor's degree from Smith College and served as Vice-Chair of the Smith College Board of Trustees until her appointment as dean. She served as a law clerk for The Hon. Joseph F. Weis, Jr., United States Court of Appeals for the Third Circuit, and practiced at Wilmer Cutler & Pickering in Washington, D.C., before joining the faculty at Temple law school in 1981, where she taught courses on constitutional law, torts, products liability, and race and ethnicity. While on leave from Temple, she served as Deputy Executive Director of the Redevelopment Authority of the City of Philadelphia and President of the Low-Income Housing Development Subsidiary and the Philadelphia Development Mortgage Assistance Corporation (1987-89). 


April 8, 2010 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 7, 2010

Redesigning the Torts Course

Over at Prawfs, Erik Knutsen (Queen's University) has a provocative post arguing that first-year Torts should be taught as "Injury Law," focusing heavily on insurance principles.


April 7, 2010 in Teaching Torts | Permalink | Comments (1) | TrackBack (0)

NEJM Article on Disclosure and Offer Programs

Michelle Mello and Thomas Gallagher have published an interesting piece in the NEJM.  They cover several models of disclosure and offer programs, discussing the advantages and disadvantages.  In particular, they highlight the fact that such programs can be implemented without the political struggles accompanying legislation.


April 7, 2010 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 6, 2010

Popper's "Materials on Tort Reform"

Andrew Popper (American University) has published "Materials on Tort Reform" (registration required),  an e-book available through West Academic Publishing.

The summary provides:

This succinct e-book on tort reform reveals one of the most important recent movements in the civil justice field. It begins with a brief overview of central themes and issues and then presents a series of original essays and comments by preeminent scholars, lawyers, and leaders in tort reform. The essays are followed by fictional narratives written from the standpoint of plaintiffs, defendants, and policymakers; a simulation; and a selection of carefully edited articles, government documents, interest group position papers, and cases. Comments, notes, and questions are interspersed throughout the text.

The book includes essays by Victor Schwartz, Erwin Chemerinsky, Pamela Gilbert, Neil Vidmar, Mike Rustad, Stephen Sugarman, Aaron Twerski, Martha Chamallas, Jeff O'Connell and TortsProf's own Chris Robinette, among others. 


April 6, 2010 | Permalink | Comments (2) | TrackBack (0)

FDLI's "Top 20 Food and Drug Cases, 2009 & Cases to Watch, 2010"

The Food & Drug Law Institute has published its "Top 20 Food and Drug Cases, 2009 & Cases to Watch, 2010."  A preview of the book is available here (pdf).

My colleague Bill Janssen authored the book's first chapter; he discusses Ashcroft v. Iqbal and analyzes its implications in drug and device cases.  


April 6, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 5, 2010

Guest Blogger Alex Long: "Should Tort Law Be Tougher on Lawyers?"

 Should Tort Law Be Tougher on Lawyers?

    There are plenty of special tort rules that have developed when lawyers are sued in their professional capacity.  As my colleague Ben Barton has observed, most of these special rules treat lawyers more favorably than similarly-situated nonlawyers.  Examples include the courts’ refusal to recognize the “loss of chance” theory in legal malpractice cases and the recognition of the absolute litigator’s privilege, which some courts have extended beyond the defamation context to shield lawyers from liability under theories ranging from intentional infliction of emotional distress to fraud. 


    That’s why about a year ago I was surprised to learn about a special form of civil liability for lawyers that is decidedly lawyer unfriendly.  In Amalfitano v. Rosenberg, 903 N.E.2d 265 (N.Y. 2009), the New York Court of Appeals considered the meaning of § 487 of New York’s Judiciary Law, which singles out lawyers for special treatment.  Specifically, the statute makes it a crime for an attorney to engage in “any deceit or collusion” and provides for the recovery of treble damages by a party injured by the attorney’s actions.  Several other states have similar statutes, nearly all of which contain the treble damages provision.  Historically, courts (including in New York) interpreted these statutes in a narrow fashion, concluding that they simply track the common law claim of fraud.  However, in Amalfitano, the New York Court of Appeals concluded that the statute should be interpreted in an “expansive” manner and permitted the plaintiffs to recover the costs of their defense (times three) resulting from the defendant-lawyer’s act of knowingly making false representations to the court in a pleading in the underlying matter.


    Potentially, that’s a pretty significant decision for lawyers, at least insofar as it subjects lawyers to civil liability for which nonlawyers cannot be held liable.  Had the Amalfitano plaintiffs sued the defendant-lawyer’s client on a fraud theory, they probably would have lost since the attempted fraud involved attempting to mislead the court; thus, the attempted fraud was one upon the court, rather than the plaintiffs.  Moreover, the plaintiffs probably would have lost on a malicious prosecution or wrongful initiation of civil proceedings claims because New York (like a lot of jurisdictions) requires that a plaintiff suffer “special injury,” i.e., something above and beyond the costs of defending baseless litigation.  But neither of those rules were obstacles for the Amalfitano plaintiffs, who chose to rely on § 487 and sue the lawyer who made the false allegations on behalf of his client.


    The question I’ve been wrestling with since the decision is whether it’s such a good idea to lower the standard for lawyer liability in cases of deceit occurring while a lawyer is representing a client.  On the one hand, much of the tort law governing lawyers is based on the idea that we do not want to deter lawyers’ willingness to engage in diligent representation of their clients for fear of facing civil liability.   On the other hand, there is the reality that lawyers have special obligations when it comes to the administration of justice as officers of the court.  Ultimately, it strikes me as being a fundamentally different thing for a lawyer – while wearing his or her lawyer hat – to knowingly lie to the court or to intentionally destroy evidence than it is for a nonlawyer to do the same.


    But is it different enough to justify imposing liability on the lawyer when the jurisdiction’s tort rules would not allow for liability in the case of a nonlawyer?  I tend to think that an appropriate analogy here is to the employment law tort of wrongful or retaliatory discharge in violation of public policy.  Why do we provide a remedy for an employee who has been fired for applying for workers compensation benefits or serving on a jury?  Sure it’s because we think it’s unfair for the employee to be forced to choose between his or her job and taking advantage of a statutory entitlement or fulfilling a public obligation.  But it’s also at least as much because we want to preserve the integrity of the systems and institutions that are adversely affected by the employer’s action.      Similarly, while I feel bad for the party that has incurred added expense or heartache as a result of the fact that the other side has lied to the party or the court during a legal proceeding, I’m at least equally concerned about the damage to the integrity of the legal process.  I’m less concerned when it’s a party that’s doing the lying because the legal system’s structure is based in part on the recognition that parties may, in fact, lie.  We expect it to happen and have measures in place to guard against it.  But we shouldn’t have to guard against the lawyers to the proceeding engaging in deceit, particularly where the courts and the legal profession have established a monopoly on the practice of law and have certified the fitness of those who practice it.  The courts and the legal profession have, in effect, made an assurance about the integrity of the process.  Permitting lawyers to damage that integrity creates the kind of public or third-party harm that, to my mind, justifies a remedy.


    Of course, that conclusion still leaves open a host of other issues, including whether it also makes sense to criminalize attorney deceit (as the majority of these statutes do) and how to define the concept of “deceit” as applied to attorneys.  But in light of the damage that attorney deceit occurring during the course of a legal proceeding causes to the other party, the integrity of the legal process, and the reputation of the legal profession, I think that it generally makes sense for tort law to be tougher on attorney deceit than other types of deceit.


--Alex B. Long

University of Tennessee College of Law

April 5, 2010 in Guest Blogger | Permalink | Comments (1) | TrackBack (0)