May 22, 2010
Ripstein on Tort Theory
Arthur Ripstein (Toronto) has posted to SSRN an entry into THE OXFORD HANDBOOK OF JURISPRUDENCE AND LEGAL PHILOSOPHY entitled Philosophy of Tort Law. The abstract provides:
Tort law answers two of the most fundamental questions faced by any society: "how should people treat each other" and "whose problem is it when things go wrong". Tort law is striking because it supposes that the question of how people treat each other and the question of whose problem it is when things go wrong are at bottom the same question. If plaintiff is to recover from defendant, defendant must have breached a norm of conduct that governs the ways in which he may treat her. My aim in this chapter is to explain the way tort law brings the two questions together.
May 21, 2010
Personal Injury Roundup No. 77 (5/21/10)
- Kirkland & Ellis will represent BP in oil-spill cases. (ABA Journal)
- A DE physician is facing hundreds of tort and criminal actions based on molesting his patients. Widener Law Dean Linda Ammons wrote a report to the governor detailing the incidents. (Delaware Online; Bernabe/Torts)
- Family of MI child killed in raid sues police. (CNN.com)
- 4th Cir: Trial judge erred in cutting a p.i. lawyer's fee from $6M to $600,000. (ABA Journal)
- NY: Med mal failure to monitor for lupus award vacated; new trial ordered. (Hochfelder)
- Federal Circuit affirms dismissal of vaccine-autism claims. (Copland/Point of Law)
- NY: $5M pain-and-suffering verdict for AA back injury modified to $800,000. (Hochfelder)
Trials, Settlements and Other Ends
- Fort Worth agrees to pay $2M in damages for Taser death. (WFAA.com)
- Judge rules against plaintiffs in "backyard smoking" case. (KDAT.com)
- VT disputes report critical of its response time in 2007 shootings. (CNN.com)
May 20, 2010
Gender, Race, and Tort Law
In less than two weeks, The Measure of Injury: Race, Gender, and Tort Law, the new book by Martha Chamallas (Ohio State) and Jenny Wriggins (Maine), will be available from NYU Press.
At Law & Society in Chicago next week, there will be an "Author Meets Readers" panel on the book. Scheduled for Friday, May 28 from 4:30-6:15 at the Renaissance Hotel, the panel will be chaired by Anne Bloom (University of the Pacific). Readers are: Julie Davies (University of the Pacific), Lisa Pruitt (California, Davis), Catharine Wells (Boston College), and me.
May 19, 2010
Ellen Pryor's Scholarship
Ellen Pryor (SMU) has posted to SSRN several papers, including some older works. First up is her 1998 piece (co-authored with Will Pryor) Concurrent Mediation of Liability and Insurance Coverage Disputes. The abstract provides:
Tort litigation has yet to produce a satisfactory solution to a recurring and difficult problem: the presence of an undecided insurance coverage question when the underlying liability case is still pending. The possible litigation options have serious drawbacks. Resolving the coverage case while the tort suit is pending can in some contexts undermine the insured’s defense in the tort suit. Yet leaving the coverage claim unresolved throughout the underlying suit raises concerns of structural collusion and inefficient levels of indemnity insurance. This article explores the use of what we call “concurrent mediation” - mediation of both liability and coverage - as an alternative to these adjudicatory options. By working through a series of paradigmatic coverage-liability disputes, we examine whether, when, and how concurrent mediation can be effectively employed. Our aim is not to discuss mediation versus litigation as a general matter, but to illuminate the incentives, strategies, and doctrinal issues that can affect the feasibility and desirability of concurrent mediation.
Next is her 2002 article After the Judgment:
Tort judgments - whether entered after settlement or a trial - have traditionally been viewed as marking the end of tort law’s role in the plaintiff’s life. Yet developments over the past 25 years have rendered this view obsolete. Until several decades ago, tort judgments almost always resulted in a lump sum payment reflecting a jury’s findings or the parties’ assessment of the amount of damages incurred by the time of settlement as well as provable future damages. Aside from minors (for whom monies were deposited into an interest-bearing account until the minor reached adulthood and received the full sum), the non-taxable tort award was the plaintiff’s to spend or invest as he or she chose. Now, however, payment methods other than the lump sum are common for both minors and adults. Legislation in many states allows defendants to request an order for periodic payment. In settlement contexts, parties often make use of structured settlements - a package consisting of a present payment and a structured series of future payments. In addition, settlement trusts are more common now. These and other changes mean that the hand of tort law often extends beyond the judgment and affects the timing of, structure of, and decisionmaking about tort payments. This Article explains this shift and the reasons for it, and identifies and explores some of the most important questions it raises. These questions include the efficiency and justice of mandated and voluntary payout methods in various categories of cases; the proper approach for plaintiffs with diminished (or allegedly diminished) decisionmaking capacity; and the role of the lawyer as to both competent and diminished capacity clients.
And, finally, we have her 2008 piece Part of the Whole: Tort Law's Compensatory Failures through a Wider Lens:
The injuries that give rise to tort cases usually implicate not just tort law but other strands of our society's compensatory fabric--Medicare and Medicaid, Social Security disability, workers' compensation, private medical insurance, and private disability insurance. This Article analyzes some of the intersections that especially warrant the attention of policymakers and analysts. One topic is how tort law interacts and coordinates with other payment strands in the compensation fabric. The two major legal standards bearing on coordination are the collateral source doctrine and the doctrine of subrogation. Both of these have changed substantially in recent years, leaving a coordination picture that is both more unstable and more complex than it was twenty years ago. In some states, the doctrines are incoherent or indefensible. The Article also discusses two emerging and unsettled issues relating to the calculation of pecuniary damages: how managed care reimbursement should be taken into account in a tort suit, and the proper role of annuity evidence in assessing future pecuniary loss.
May 18, 2010
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May 17, 2010
"Law & Order" as Tort Fable?
In the recent edition of The Atlantic, Garrett Epps (Baltimore) explains "Why We Will Miss 'Law & Order.'" (If you missed the news, NBC has cancelled the 20-year series). The reason we will miss the show, Epps suggests, is that "Law & Order" is a "fable about the field called tort law."
Joint Preliminary Report Filed in Toyota MDL
The parties have filed their preliminary report in the Toyota MDL. A copy of the report is available at Mass Tort Defense.