Friday, May 14, 2010
Graduation here at Western New England is just a week away. Congratulations to graduates here and across the country!
Reform, Legislation, Policy
- Some Kagan links: Turkewitz hopes she's handed clients tissues (New York PI Law Blog); Overlawyered rounds up some links (Overlawyered); Victor Schwartz comments on her having an open mind on liability reform (Business Insurance).
- Center for American Progress criticizes damage caps for environmental damages. (Center for American Progress)
- Damages the focus of insurer ad buys in North Carolina. (BusinessWeek)
- $500 million in punitive damages to pharmaceutical companies for plaintiffs getting hepatitis C due to reuse of vials; allegation is, I guess, that the vials the pharma companies used were too big and thus encouraged (?) reuse. (Google/AP, Daily Finance)
- Family of eight-year-old killed by negligently installed and inspected carnival ride will receive no compensation on top of roughly $2 million already received (MassTort.org)
Thursday, May 13, 2010
Tom Baker (Penn) has posted to SSRN Insurance in Sociolegal Research. The abstract provides:
Insurance has a long history in socio-legal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This essay reviews developments in both bodies of work. Part one examines the relationship between liability insurance and tort law in action using the metaphors of window and frame. Part two reviews research on insurance as governance. The conclusion returns to insurance as governance in the context of liability insurance, arguing that this is an especially promising field for socio-legal research.
Wednesday, May 12, 2010
Benjamin Zipursky (Fordham) has posted to SSRN Punitive Damages After Philiph Morris USA v. Williams. The abstract provides:
Philip Morris USA v. Williams has struck some commentators as hypertechnical, but it is in fact among the Court’s most significant pronouncements on the topic of punitive damages. At its center is the “Nonparty Harm Rule”: it is a violation of due process for a court to permit a jury in a tort case to use punitive damages to punish a defendant for harming persons who are not parties in the litigation. The holding is difficult to understand because the Court simultaneously stated that it is permissible to augment a punitive damages award in light of a defendant’s heightened reprehensibility and it is permissible to infer heightened reprehensibility from the numerosity of the persons injured by defendant’s conduct, including nonparties. It is surprising because it appears to sound more in process, while prior cases have focused on the magnitude of the award. For both of these reasons, it is challenging to lower courts, who must craft jury instructions implementing Williams’ mandate. This article tackles all three problems. At a theoretical level, it utilizes civil recourse theory and my prior theory of punitive damages to explain and justify the nonparty harm rule along with the possibility of augmenting punitives for reprehensibility. At an interpretive level, it conjectures that Chief Justice Roberts and Justice Alito wish to retain the Court’s punitive damages doctrine, but are more attracted to versions of constitutional punitive damages law that are visibly distinct from substantive due process. And at a practical level, it reviews several jurisdictions proposed jury instructions, post-Williams, and identifies those approaches to jury instruction that are most defensible.
(Via Solum/Legal Theory Blog)
Tuesday, May 11, 2010
Monday, May 10, 2010
We really enjoyed hosting our Spring 2010 guest bloggers. Our guests explored a wide array of topics:
- Mike Green on "Let's Be Careful Out There"
- Richard Epstein on "Multiple Standards of Liability in Tort Law: Of context and categories"
- Kenneth Abraham on "Four Conceptions of Insurance"
- Alan Calnan on "Due Process, Probable Cause, Duty and Torts"
- Anita Bernstein on "Pervading"
- Ken Simons on "What can tort law (and tort law scholars) learn from criminal law (and criminal law scholars)?"
- Michael McCann on "'Game Presentation' and Torts: The Unappreciated Dangers of Flying Hotdogs"
- James Henderson on "The Moral Foundation of Tort"
- Richard Nagareda on "Developments in the Resolution of Mass Torts: The New Face of Client Consent"
- David Owen on "Foreseeability in Accident Law"
- Alex Long on "Should Tort Law Be Tougher on Lawyers?"
- Phoebe Haddon on "Update on the UMD Clinic and Thoughts on Don Gifford's New Book"
- Jennifer Wriggins on "Torts, Insurance, and the Value of Injury"
- Andrew Klein on "Science, Causation, and Toxic Torts"
- Mark Geistfeld on "Tax breaks for bad behavior? On the relation between income taxes, punitive damages and liability insurance"
Thanks to everyone who participated this spring. Guest Blogger Monday will return in the Fall.
- Sheila & Chris