February 27, 2010
Durbin on Med Mal Reform
From George Conk at Otherwise: Senator Richard Durbin responds to Republican arguments for medical malpractice reform.
February 26, 2010
Personal Injury Roundup No. 68 (2/26/2010)
We finally got something like a winter storm this week in New England. But it's always sunny in the world of Torts. Or something.
Reform, Legislation, Policy
- Rep. Issa says health care reform must also include malpractice reform (Politico)
- Doctors think so too (CNN)
- ...and much of the discussion this week was on Twitter, where one can make sophisticated and complex arguments in 140 characters (fewer if you use a lot of emoticons) (WSJ Law Blog).
- Philip K. Howard on how to fix the legal system (TED.com
- IRS worker's widow sues widow of Joe Stack for wrongful death (Statesman.com)
- Lawsuit filed over hot dog injury (Deadspin)
- Drug & Device Law Blog isn't impressed by a qui tam action (Drug & Device Law Blog)
- The possibilities of litigation connected to Sea World trainer's death (Above the Law)
- On the Toyota litigation (NPR, Point of Law)
Trials, Settlements and Other Ends
- One jury awards $9.45 million in a PremPro trial (Law.com)
- ...while another awards nothing, finding no causation (Law.com)
- Not torts-specific, but the Supreme Court's ruling on jurisdiction will obviously be important in tort litigation (SCOTUSblog)
- Florida $300M tobacco verdict reduced to $39M (Business Week)
- Former NFL player to pay over $1M to former daughter for abuse (First Coast News).
- Ex-prison guard ordered to pay $1.4M in rape case; collection looks unlikely (Standard.net)
- A new -- or at least newly-used -- theory for slip-and-fall cases in New York? (Turkewitz)
- I appear to have started blogging again about amusement park and carnival safety and litigation (MassTort.org).
February 25, 2010
Introducing Guest Blogger Ken Simons
Simons has been a member of the BU Law faculty since 1982. He served as Associate Dean for Academic Affairs from 1990 to 1993, and as the Associate Dean for Research from 2006 to 2008. He has taught criminal law, torts, constitutional law and seminars on the topics of justice and rights, the philosophy of punishment, and the idea of equality. In 1999, Simons was a visiting professor at Michigan Law School, where he taught torts and a seminar on "Rights and Justice."
Simons's publications are too numerous to list here. Recent publications include: "Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction," in Symposium, Criminal Law & Philosophy (forthcoming); "The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines," in Symposium, Wake Forest Law Review (forthcoming); "The Distinction Between Negligence and Recklessness Is Unstable," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); "Excuse Doctrine Should Eschew Both the Reasonable and the Ordinary Person," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); "Requiring Reasonable Beliefs about Self-Defense Ensures That Acts Conforming to Those Beliefs Are Reasonable," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); and "Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment," 109 Columbia Law Review Sidebar 1 (2009).
Simons clerked for Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit and Justice Thurgood Marshall of the U.S. Supreme Court.
February 24, 2010
Journal of European Tort LawThe European Centre of Tort and Insurance Law (
More on Toyota Lawsuits
David Owen (South Carolina) and Byron Stier (Southwestern/Mass Tort Profs) are quoted in yesterday's NPR "All Things Considered" broadcast on Toyota's lawsuit problem. The story (and audio) are available here.
Hanson & Kysar to Give 2010 Monsanto Lecture
Jon Hanson (Harvard) and Douglas Kysar (Yale) will give the 2010 Monsanto Lecture at Valparaiso on Friday, March 19 at 4:00 p.m. The topic is "Abnormally Dangerous: Inequality Dissonance and the Making of Tort Law."
February 23, 2010
Senate Hearing Today on Foreign Libel Lawsuits
From Point of Law comes news of a Senate Judiciary Committee hearing at 10:00 am today on "Are Foreign Libel Lawsuits Chilling Americans' First Amendment Rights?” Kurt A. Wimmer, a partner at Covington, and Bruce D. Brown, a partner at Baker Hostetler, will testify.
Can't get to Washington? You can watch a webcast of the hearing.
Critiques of Markel's "How Should Punitive Damages Work"
PENNumbra, the on-line companion of the University of Pennsylvania Law Review, has published two responses to Professor Dan Markel's latest article on his retributive damages theory, "How Should Punitive Damages Work?"
David S. Owen (University of South Carolina) addresses Markel's theory in "Aggravating Punitive Damages" (pdf). The abstract provides:
In Aggravating Punitive Damages, Professor David Owen applauds much of Professor Markel’s vision of how punitive damages law should operate, such as using a “clear and convincing” standard of proof for this quasi-criminal remedy. While acknowledging that Markel’s public law insights illuminate a host of perplexities, including many nettlesome issues under the due process umbrella that now cabins punitive damage awards, Owen questions Markel’s bold proposal to redirect the retributive focus of this hybrid remedy away from victims of aggravated wrongdoing to the public at large—such as shifting retributive damage awards from victims to the public. Owen argues that, most fundamentally, punitive damages are best viewed as a form of robust, retributive restitution for victims of flagrant wrongdoing and that this peculiar remedy should remain firmly rooted where it began and presently resides—in private law.
Michael I. Krauss (George Mason) also reviews Markel's article in "'Retributive Damages' and the Death of Private Ordering." (pdf) The abstract provides:
In “Retributive Damages” and the Death of Private Ordering, Professor Michael Krauss explores the implications of Markel’s retributive damages for the private ordering/public ordering divide. Relying on Aristotle’s conception of corrective justice and eighteenth-century common law, Krauss makes the philosophical and historical case for the proper, limited role of punitive damages. He argues that punitive damages are only legitimate where used to close loopholes in conventional tort law remedies—e.g., as compensation for moral offenses. Accordingly, he contends that the retributive use of punitive damages is a pollution of tort law by public ordering principles. Finally, even for those who accept the theoretical premise of retributive damages, Krauss identifies several potential problems with Markel’s scheme—theoretical, practical, and constitutional.
February 22, 2010
Bernstein on "Pervading"
Honored to be here for a guest post. In choosing my topic, I’ve decided to forgo the chance to, ahem, promote my own recent torts publications and instead write in response to the request I’ve heard most often from colleagues over the years: Any suggestions of how a Torts instructor can integrate professional responsibility or legal ethics into this course?
This question broaches the pervasive method. Professional responsibility folks have long debated the issue of venue: Should this subject occupy its own course, or instead pervade a larger curriculum? I’ve expounded on the issue elsewhere, referring to the pioneering pedagogy that Deborah Rhode staked out decades ago. For now let’s assume that you are interested in making occasional references to legal ethics or professional responsibility issues as they are presented by the material you cover in your Torts class.
Disclaimer: I am not necessarily advising you to do so. Everything we put into our classes displaces something else we could do with the same unit of time. No matter which political ideologies we hold, we all believe in the microeconomics tenet of scarcity!
That said, it’s nice to gain an option. So I’ve gathered a half-dozen torts-and-professional- responsibility points that won’t demand too much preparation effort or time in class. They have the almost paradoxical virtue of making what you do in class more theoretical and more hands-on practical. You can emphasize either aspect.
1. The contingent fee. Whenever your text includes a case with a plaintiff who appears to lack wealth, you can tell students how personal injury lawyers typically get paid for their work. From there, mention ethics issues that accompany the contingent fee, which is an attorney’s gamble that prosecuting a tort claim for a client will pay off. And from there…
2. … you can introduce conflicts of interest between lawyer and client by asking which conditions would make a lawyer want to settle while a client wants to press on toward trial. Then ask what would make a lawyer want to go to trial while the client prefers fast cash. You might be surprised—at least I’ve been surprised—to hear first-year students argue that the lawyer’s preference should prevail.
3. Truth versus partisanship. Do plaintiffs tell the truth under oath about, say, their own lack of comparative negligence? For scrutiny of the other side of the caption, you can use cases involving entity defendants, which invite attention to concealment of evidence and well-financed stonewalling.
4. Solicitation. Students often don’t know that a lawyer may not approach an injured stranger and offer to represent this person in pursuit of legal redress for the injury. I’ve long been fascinated by this prohibition (and have explored what it has, and doesn't have, in common with the criminalization of solicitation in the context of street prostitution). The ban seldom emerges from cases in a Torts text, but you can often find it just below the surface. For example, in the book I now use, one decision speaks disparagingly of plaintiffs’ experts, implying that they had tried to use dishonest boilerplate affidavits. Rejection of their testimony can open a conversation about mass torts as lawyer-driven business enterprises rather than responses to the needs of hurt individuals.
5. Witness coaching. Consider the way judicial authors use “the facts” to support the decisions they make to permit or bar recovery in tort. How do these judges know what happened? Many of the cases in your text will be appellate opinions reviewing lower court judgments following a trial. This case law may raise the possibility that witnesses (especially plaintiffs) were coached by their attorneys. I recommend the law review article by Bill Hodes defending this practice. His thesis, which you can summarize in class, is provocative.
6. Tort liability for attorney misbehavior. Sometimes Torts gives students the impression that anybody can sue anybody for anything. It can be refreshing to turn this plenary breadth against our own occupation. The Goldberg, Sebok & Zipursky text that I use gives instructors an early opportunity to raise the subject by presenting duty—including the limited duty to prevent economic loss—up front. Another convenient point to raise this issue arises when you reach a medical malpractice case. “That’s medical malpractice,” you can say by way of opening a discussion. “What would be legal malpractice? How might a lawyer cause injury by failing to fulfill the standard of care?” Tort liability for “abuse of process” and “malicious prosecution” can come up later, if you so desire.
- Anita Bernstein
- Anita Bernstein
Anita and Stuart Subotnick Professor of Law
Brooklyn Law School
 A couple of jurisdictions do permit this overture.
 John C.P. Goldberg, Anthony J. Sebok, & Benjamin C. Zipursky, Tort Law: Responsibility and Redress 242 (4th ed. 2008) (reprinting Aldridge v. Goodyear Tire & Rubber Co., 34 F. Supp. 2d 1010 (D. Md. 1999)).
 W. William Hodes, The Professional Duty to Horseshed Witnesses--Zealously, Within the Bounds of the Law, 30