Thursday, December 30, 2010
F. Patrick Hubbard (South Carolina) has posted to SSRN several of his older works.
Wednesday, December 29, 2010
Jennifer Wriggins (Maine) has posted her Constitution Day lecture at Maine to SSRN. Entitled Constitutional Law and Tort Law: Injury, Race, Gender, and Equal Protection, the abstract provides:
The lecture focuses on how the equal protection clause of the fourteenth amendment relates to tort law. It was the Annual Constitution Day Lecture given at the University of Maine School of Law on September 17, 2010. The equal protection clause requires that "all persons similarly circumstanced shall be treated alike." Royster Guano v. Virginia, 253 U.S. 412, 415 (1920). This formal equality requirement applies to tort law as to other areas of law. Yet it is difficult in torts to discern whether the requirement has been violated, because of the decentralized and individualized method of adjudication used to resolve tort claims. Tort law since the end of slavery has not had clear statutory exclusions based on race, unlike areas such as education or transportation. Individual court decisions, however, can constitute state action that violates the equal protection clause, as seen in cases such as Palmore v. Sidoti, 466 U.S. 429 (1984), in the family law arena.
Clear examples from the history of tort law show that some tort decisions devalued African-Americans’ tort claims and thus violated the equal protection clause, as discussed in Part II. Equal protection continues to be relevant to tort law. Race-based and gender-based tables are still used in court to predict a plaintiff’s earnings or life expectancy for determining tort damages. Such admission is arguably state action and can not be justified by any compelling state interest, Part III explains. The admission of these tables in court is a violation of plaintiffs’ equal protection rights.
Tuesday, December 28, 2010
An article in Saturday's NY Times reported that New York State seeks reimbursement from indigent patients in state-run mental hospitals when the patient wins a tort award against the state for poor care in the very same hospital.
On his blog, Dorf on Law, Michael Dorf (Cornell) comments on the impact of this practice on the deterrence goal of a tort award As Dorf explains,
Vis-a-vis an indigent who owes the State hundreds of thousands or millions of dollars for past care, the State itself is a kind of indigent--in the sense that it will never see that money, and so can commit torts up to the value of that care without worrying about any real out-of-pocket cost.
Monday, December 27, 2010
As Brian Leiter reports, two law professors (from Penn and Widener) have won $5 million in punitive damages in a defamation suit against West Publishing. Although their contract allowed West to continue to publish their treatise using their names, the two professors sued West, claiming that the latest edition damaged their professional reputations because it was an inferior product (with only 3 new cases added to the entire book). A federal jury agreed with the professors and awarded $90k to each professor for compensatory damages, and $2.5 million each in punitive damages.
Leiter also has links to the Philadelphia Inquirer story as well as the Legal Intelligencer story.
Thanks to Lisa Smith-Butler for the alert.