Thursday, February 18, 2010
Okay. I admit it's been a very busy week for me, and I haven't spent as much time on the Roundup as usual. However, that being said, I have trolled all my typical sources of information. It just seems to be a slow week. Perhaps the Olympics are to blame. In any event, I'm outsourcing this week's Roundup. If you have information to contribute, send it in. I'll get the word out about your interesting new suit, appeal, settlement, etc.
Reform, Legislation, Policy
- New RAND Publication: The U.S. Experience with No-Fault Automobile Insurance: A Retrospective
- The IL Supreme Court struck down caps on med mal awards last week. Will awards climb as a result? (Medill Reports)
Trials, Settlements and Other Ends
- $4.1 M settlement for malicious prosecution leading to a decade of imprisonment. (CNN)
- Dismissal of suit for floor hockey gym class injury upheld on appeal (New York Injury Cases Blog)
- Police car strikes bicyclist, breaking both of his legs; Appeals court upholds additur from $100,000 pain-and-suffering verdict to $750,000. (New York Injury Cases Blog)
- Ron Miller on Personal Injury Leads Cold Calls (The Maryland Injury Lawyer Blog)
- Monday's Guest Blogger, Anita Bernstein, on "Tort Law, Distributive Justice, and Sociolegal Scholarship." (Via Solum/Legal Theory Blog)
Thanks to Mark Behrens for material this week.
Monday's guest blogger is Anita Bernstein. Bernstein is the Anita and Stuart Subotnick Professor of Law at Brooklyn Law School, where she currrently teaches Torts, Marriage and the Law, and The Legal Profession.
Prior to joining Brooklyn Law School, Bernstein was the Sam Nunn Professor of Law at Emory University School of Law, the Wallace Stevens Professor of Law at New York Law School and the Norman & Edna Freehling Scholar and Professor of Law at Chicago-Kent College of Law. She also served as a visiting professor at Michigan Law School, Cornell Law School, and the University of Iowa College of Law, where she was the Mason Ladd Distinguished Visiting Professor of Law. Before her academic career, she practiced with Debevoise & Plimpton and was a law clerk to Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York.
Bernstein is a prolific author whose work includes several books on marriage and torts, including Marriage Proposals: Questioning a Legal Status (2006), Torts: Questions and Answers (2004) (co-author with David Leonard), and A Products Liability Anthology (ed.) (1995). Bernstein's awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems.
Wednesday, February 17, 2010
Elizabeth Chamblee Burch (FSU/Mass Tort Profs) has posted to SSRN Group Consensus, Individual Consent. The abstract provides:
Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.
These sections make some scholars nervous because they substitute individual consent to a settlement for individual consent to a process. But the process itself plays a vital function; it isn’t simply a handy crutch for enforcing substantive law. When process is coercive or consent is tainted those flaws undermine systemic legitimacy and can affect subsequent compliance with the outcome. To be sure, process should enable the enforcement of substantive laws. But it can do so much more. It can serve as means for bringing plaintiffs together, plugging their stories into a larger narrative, making sense of that narrative as part of a community, deliberating about the role that litigation should play, and encouraging plaintiffs to reason together about the right thing to do.
Tuesday, February 16, 2010
Bernstein on "Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality"
Anita Bernstein (Brooklyn) has posted "Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality" on SSRN. The abstract provides:
Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This article uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too.
Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for “microfinance” (as distinguished from “microcredit”) as the preferred mode for transitional governments designing new national reparations programs. The article works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women.
The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award for 2011. The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ...." The three most recent distinguished recipients are Oscar Gray, Dan Dobbs, and Robert Rabin. Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.
Any law professor is eligible to nominate another law professor for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee. The announcement of the award will be made at the annual AALS meeting in January, 2011.
Nominations, accompanied by a brief supporting statement, should be submitted to Prof. Michael L. Rustad, Chair Elect of the Executive Committee, either by regular mail or e-mail at profrustad [at] aol.com. Nominations must be received no later than 5 pm eastern time (
Michael L. Rustad
Thomas F. Lambert Jr. Professor of Law &
Co-Director of the Intellectual Property Law Concentration
Suffolk University Law School
120 Tremont Street, Boston, Massachusetts 02108-4977
Monday, February 15, 2010
Nothing in torts is more sacrosanct than the aggrieved party’s right to sue. Some theorists see it as a political right of access to an important public institution. Others say it is a moral imperative securing a fundamental personal liberty. Still others view it as simply a practical expedient for blatant judicial policymaking.
Whatever its basis, the right to sue is both embedded in and enabled by the tort concept of duty. Conventional wisdom holds that people owe a general duty to protect others from the unreasonable risks of their conduct. This duty, in turn, bestows upon all citizens both a primary right of security and a complementary power to enforce that right in court. When one person’s act violates another’s security by causing her personal injury, this dormant power becomes an actual subsidiary right of legal recourse that presumptively legitimates the injured party’s tort suit against the actor. Indeed, under the approach recently adopted by the Restatement (Third) of Torts, that subsidiary right prevails unless and until the actor turned defendant affirmatively undertakes to challenge it.
In this post I will argue that the right to sue in tort is not universal, absolute or automatic, but is counterbalanced and limited by an equally critical right to be free from unsubstantiated litigation. Relatedly, I shall contend that this defensive right invalidates the use of a general duty in negligence cases. A plaintiff suing for negligence must earn the right to haul her adversary into court; and to do this, she must show probable cause for her action. I will close by briefly sketching out a procedure for implementing this requirement.
A tort action, like a criminal prosecution, is an assault. Stripped of its formal trappings, such a proceeding entails one person or group acting to interfere with the interests of another. Regardless of its outcome, this assault greatly impairs the liberty of the party against whom it is directed, disrupting her employment, draining her financial resources, subjecting her to public obloquy, and causing her anxiety and emotional turmoil.
Both types of assault rely on state action. In criminal cases, the state initiates and prosecutes the assault on its own. In tort cases, the state provides invaluable assistance to a private claimant, lending her its fora, facilities, administrators, laws, procedural rules, decisionmakers, and even its coercive authority. Accordingly, each act of legal aggression is governed by the dictates of due process.
Due process prohibits limiting liberty without adequate justification. Neither criminal prosecutions nor tort actions are inherently justified. When an accuser makes an accusation of legal responsibility, the propriety of the accused’s conduct is unknown. There is no more reason to assume the accused’s guilt than to assume the accuser’s bad faith. The only certainty is the fact of the accuser’s current aggression. Until grounds for suspecting a wrong are established, the accuser possesses no automatic right of recourse. She accrues that right by creating probable cause for her action.
In criminal cases, probable cause has a single, factual dimension. The prosecutor must present facts demonstrating that the accused probably committed a crime. This showing is sufficient to justify state action, since both the conduct subject to criminal punishment and the authority of the state’s prosecutor are prescribed by statutory law.
Tort cases, by contrast, require three forms of probable cause. As in criminal cases, the prosecutor of a tort action must present facts providing reasonable grounds to believe that the defendant committed a tort. Unlike criminal cases, however, this factual predicate is not sufficient to establish a right to civil recourse. To fully justify her private assault, a tort plaintiff also must establish substantive and procedural probable cause.
Substantive probable cause is a prima facie showing of the defendant’s obligation. While criminal duties are clearly defined and statutorily entrenched, tort obligations are deceptively complex and insufferably dynamic, often arising slowly and incrementally from decades of precedents, or erupting suddenly and spontaneously from a single judicial decision. Thus, tort’s duties are naturally more uncertain.