Friday, June 25, 2010
Anita Bernstein (Brooklyn) has posted to SSRN Teaching Torts: Rivalry as Pedagogy. The abstract provides:
This contribution to a Tort Law Academic Workshop considers the ‘twin themes’ pervading torts pedagogy in the twenty-first century: (1) teaching torts for global practice and (2) teaching the common law in an age of statutes. Manifested at both transnational and national levels, the two themes have in common what may be understood as rivalries, where contrary rules and stances compete for power. The article explores illustrations of this competition that emerge in an American torts classroom, with attention to the interest that a ‘pedagogy of rivalry’ might hold for torts teachers and scholars working within common law systems outside the United States.
Thursday, June 24, 2010
The New York court system received one of twenty recent federal grants to study alternative ways to resolve medical liability claims. The court system will attempt to systematize the methods of NY Judge Douglas McKeon. McKeon describes his method as "judge-directed negotiations," but the emphasis seems to be what he refers to as "humanness." In essence, he listens to the parties to determine what is really driving the dispute. Cases not settled by the parties will go to a special courtroom staffed by judges trained with a curriculum McKeon helped develop. Plaintiffs can insist on a jury trial at any point. WTOP.com has more.
Wednesday, June 23, 2010
Tuesday, June 22, 2010
The United States Court of Appeals for the Eighth Circuit had ordered a retrial on punitive damages in a hormone replacement case against Wyeth. Wyeth sought a full re-trial, but the Supreme Court denied cert.
AP/Law.com has the full report.
Monday, June 21, 2010
Alexandra Klass (Minnesota) has posted "Punitive Damages after Exxon Shipping Company v. Baker: The Quest for Predictability and the Role of Juries" on SSRN. The abstract provides:
This Symposium Essay considers the impact of the Supreme Court’s 2008 decision in Exxon Shipping Company v. Baker on the ability of juries to award punitive damages in a manner that comports with the law. In that case, the Court continued its two-decade crusade to place federal limits on punitive damages awards. The Exxon case was a federal maritime case arising out of the 1989 grounding of the Exxon Valdez in Prince William Sound, Alaska, resulting in arguably the biggest environmental disaster in U.S. history. In its decision, the Court for the first time identified “unpredictability” as the fundamental problem with punitive damages today. It then set out to make those damages more predictable by reaffirming the need for very low ratios, in this case 1:1, between punitive damages and compensatory damages. In this Essay, I argue that the Court’s quest for predictability has resulted in reviewing courts being forced to rely too heavily on the facts of other cases involving similar claims in order to determine if the punitive damages
award in the case at bar is constitutional. Such a system is fraught with error and, more importantly, creates a situation where juries cannot possibly render punitive damages verdicts that meet due process requirements because the very evidence they need to assess predictability – the facts and damage awards in other cases – cannot be made available to them.
Part I provides a brief discussion of punitive damages generally and the Court’s recent effort to place federal constitutional limits on those damages. Part II discusses the Exxon case itself and highlights the Court’s focus on “unpredictability” as the fundamental problem with punitive damages. Part III shows how lower courts have applied the Exxon case. This Part reveals that even though courts recognize that the Exxon case is a federal maritime case rather than a substantive due process case, courts have embraced the call for predictable awards by ensuring punitive damages awards are in line (both as a matter of ratio and as an absolute dollar amount) with other similar cases. Part IV illustrates how the quest for predictability requires information on other similar cases that cannot be given to juries, and how the premium now placed on predictable damages awards makes it difficult, if not impossible, for juries to arrive at constitutional verdicts.
Via Solum/Legal Theory.