March 5, 2010
Personal Injury Roundup No. 69 (3/5/10)
Reform, Legislation, Policy
- Medical device firms claim job losses as a result of the Massachusetts gift-ban. (Mass High Tech)
- Proposed Bipartisan Tax Fairness and Simplification Act of 2010 would bar defendants from deducting punitive damages awards as a business expense. (NY Times, Cal Punitive Damages)
- FDA Tobacco Panel includes two scientists with ties to manufacturers of quit-smoking products. (WSJ)
- Nestle, Gerber and 15 other companies receive warning letters from the FDA for false and misleading food labeling. (Wash Post, FDA Law Blog)
- Santa Clara County (CA) files false advertising suit against GlaxoSmithKline. (Mercury News)
- Portland (Ore.) community college student files false arrest and battery claims aganist police. (Oregon Live)
- IHOP sued for finger-tip in the fried chicken salad. (Smoking Gun)
- Seventh Circuit rejects preemption defense in Paxil suicide case. (Torts)
- New Jersey Supreme Court holds NJ can exercise jurisdiction in a product liability action over a foreign manufacturer based on the manufacturer's relationship with a nationwide distributor and on its presence at national trade shows. (Mass Tort Defense)
- Fifth Circuit to rehear the Katrina-climate change suit en banc. (Mass Tort Defense)
- SC House passes punitive damages cap. (Cal Punitive Damages)
- NY Daily News on forensic meteorology and New York's "Storm in Progress" doctrine for winter slip-and-falls. Fascinating.
Thanks to my co-editor Bill for material this week.
March 4, 2010
Introducing Guest Blogger Michael McCann
Michael McCann is an Associate Professor of Law at Vermont Law School, where he teaches sports law, antitrust, torts, and sales. He also teaches a sports law reading group at Yale Law School.
McCann is also a Legal Analyst for Sports Illustrated and the “Sports and the Law” Columnist on SI.com. He has received recognition from The American Lawyer and the Newhouse School of Public Communications for excellence in journalism.
McCann is also Co-Founder of the Harvard Law School Project on Law and Mind Sciences and the Distinguished Visiting Hall of Fame Professor of Law at Mississippi College School of Law, where he was an Assistant Professor of Law between 2005 and 2008 and where he now teaches a sports law class every summer. During his three-year tenure at Mississippi, Professor McCann received the school's most prestigious teaching awards, including the Professor of the Year Award in 2007 and 2008 and the Shirley Norwood Jones Faculty Award, also in 2008.
In the fall of 2008, McCann was a Visiting Associate Professor of Law at Boston College Law School, where he taught sports law and administrative law, and served as Chair of the AALS Section on Sports and the Law.
McCann has placed scholarly pieces in the Yale Law Journal, Wisconsin Law Review, and the Connecticut Law Review, among other publications. His most recent article is American Needle v. NFL: An Opportunity to Reshape Sports Law, 119 YALE LAW JOURNAL 726 (2010).
Prior to becoming a law professor, McCann served as counsel to college football star Maurice Clarett in his lawsuit against the National Football League and its age eligibility rule. He also served as a Visiting Researcher at Harvard Law School and Legal Counsel to U.S. Congressman Marty Meehan.
McCann has been frequently interviewed on television programs, including HBO's Bob Costas Now, CNN's The Situation Room with Wolf Blitzer, American Morning, Headline News, and Glenn Beck Show, Fox News' Fox Live Desk, and CNBC's Morning Call and Power Lunch. He is also a legal correspondent for the nationally syndicated Dan Patrick Show.
March 3, 2010
Erichson & Zipursky on Mass Torts
Howard Erichson (Fordham/Mass Tort Profs) and Benjamin Zipursky (Fordham) have posted to SSRN Consent Versus Closure. The abstract provides:
Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.
For more, see Erichson's post at Mass Tort Profs.
More on Toyota
Transportation secretary Ray LaHood stated yesterday that the Obama administration is considering requiring all automobiles to contain a brake override system intended to prevent sudden acceleration. Already a feature in many cars sold around the world, the override system is designed to deactivate the accelerator when the brake pedal is pressed. The NYT has the story.
In other Toyota-related news, a man convicted of vehicular homicide hopes to be exonerated based on evidence of Toyota's sudden acceleration issue. (CNN.com)
Thanks to George Conk, who notes the brake override system is a RAD, for the tip.
March 2, 2010
Torts Visitor Opening at FIU
From Howard Wasserman (FIU) comes news of a torts visitor opening at Florida International University in Miami:
Florida International University College of Law invites
applications from candidates for one or more visiting
faculty positions beginning in Fall 2010. Areas of
curricular preference include Property, Criminal Law,
Torts, Environmental Law, And Trusts and Estates. Visits
could be for either the fall or spring semester or for the
ABOUT FIU COLLEGE OF LAW:
Part of Miami's public research university, the College of
Law is a dynamic urban law school with approximately 600
students. FIU College of Law was established in 2000,
enrolled its first class in 2002, and currently has 30
full-time faculty members. In the spring of 2007, the FIU
College of Law moved into a new state-of-the-art building
at the heart of the main university campus. Over the past
two years, our FIU on-campus community has been enriched
through the addition of a new medical school and the
construction of the Frost Art Museum.
The FIU community and the College of Law are strongly
committed to the pursuit of excellence and the goal of
ensuring opportunities within the legal profession for
individuals who represent different groups as defined by
race, ethnicity, gender, sexual orientation, socioeconomic
background, age, disability, national origin, and religion.
Applicants should have a J.D. degree; applicants with
additional advanced degrees are also encouraged to apply.
Applicants must possess a strong commitment to teaching and
a record or the promise of outstanding scholarship.
Applicants interested in joining the FIU College of Law
faculty as a visiting faculty member should send a cover
letter expressing interest and a resume to:
CONTACT: Associate Dean Joelle Moreno
Chair - Faculty Appointments Committee
Florida International University
College of Law
11200 S.W. 8th Street
Miami, FL 33199
You may also send application materials electronically to
For more information, please visit our website at:
Florida International University encourages applications
from candidates who would continue to enhance the diversity
of our College of Law faculty and university community and
does not discriminate on the basis of race, color, national
origin, ancestry, sex, disability, religion, age, sexual
orientation or veteran status in its education and
employment programs or activities. FIU is also a member of
the State University System and an Equal Opportunity, Equal
Access, Affirmative Action Employer.
AALS Call for Proposals
From Emily Randon (UC Davis):
CALL FOR PROPOSALS
AMERICAN ASSOCIATION OF LAW SCHOOLS – 2011 Conference, Jan 5-9th
A Joint Program of the Sections on Balance in Legal Education and Academic Support
Co-Sponsored by the Section on Student Services
Theme: “Beyond Humanizing: Can – and Should – Law Schools Strive to Graduate Happy Students?”
Students often enter law school with goals of helping others, improving peoples’ lives, and making the world a better place. By the time they graduate, however, other considerations have supplanted students’ pro-social inclinations. Their aspirations succumb to more extrinsic values, such as prestige and money, and are often faced with the realities of time pressure and the dehumanizing effects of legal education. Despite the prestige associated with being an attorney, the profession is not ranked in the top ten for job satisfaction or happiness. In fact, one recent study revealed that a majority of practitioners would not recommend law to a young person.
Three AALS Sections, Balance in Legal Education, Academic Support, and Student Services will be hosting a program in which we explore the causes of lawyer distress, the role legal education plays in producing unhappy law students and lawyers, and the concrete steps law schools are currently taking or could take to combat those causes. The Program Committees invite proposals that provide concrete demonstrations of ways doctrinal, clinical, legal writing, and academic support professors and student services professionals are addressing these concerns.
The Program Committees will give preference to presentations designed to actively engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed. In addition, we would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters. Based on participant numbers for the last several years, we anticipate over 150 people will be attending the program. To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.
Proposals must be one page and include the following information:
1. A title for your presentation.
2. A brief description of the objectives or outcomes of your presentation.
3. A brief description of how your presentation will support your stated objectives or outcomes.
4. The amount of time allocated for your presentation and for the interactive exercise. No single presenter should exceed 45 minutes in total time allowed. Presentations as short as 15 minutes will be welcomed.
5. If warranted, a detailed description of how the presentation will be interactive.
6. Whether you plan to distribute handouts, use PowerPoint, or employ other technology.
7. Your school affiliation, title, courses taught and contact information (include email address and telephone number).
Optional and on a separate page: A list of the conferences at which you have presented within the last three years, such as AALS, national or regional conferences, or other academic conferences. (The committees are interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.) Any articles or books that you have published describing the technique(s) you will be demonstrating.
Send proposals by March 15, 2010 via email (preferably in a Word Document) to Prof. Emily Randon, University of California, Davis School of Law, at email@example.com. Phone number: 530-752-3434.
Questions?: If you have questions, feel free to contact Emily Randon, Program Chair for the Academic Support Section, Andrew Faltin, Program Chair for the Balance Section, at firstname.lastname@example.org or Catherine Glaze, Student Services Section at email@example.com.
March 1, 2010
Simons on "What can tort law (and tort law scholars) learn from criminal law (and criminal law scholars)?"
As someone who has regularly taught, and written extensively, in both the fields of tort law and substantive criminal law, I thought I might suggest a few ways that criminal law doctrine and scholarship could helpfully inform tort law doctrine and scholarship.
The doctrines and plausible justifications of tort and criminal law differ significantly, to be sure. But I want to focus on some opportunities for cross-fertilization. So here goes.
1. The distinction between justification and excuse
Modern criminal law doctrine distinguishes defenses of justification from defenses of excuse. Tort law doctrine does not explicitly do so, but perhaps it should.
Suppose D1 intentionally strike V1, in order to prevent V1’s use of unlawful force against D1. The privilege of self-defense will justify D1’s otherwise criminal behavior. Now suppose D2 intentionally punches V2 and V3 in order to comply with coercer C’s demand that he do so (or else C will intentionally strike D2). The privilege of duress might excuse D2’s otherwise criminal behavior, but arguably would not justify it (insofar as D2 has caused a greater harm or evil than he avoided by submitting to the threat). Justified actors act permissibly, or even laudably. Excused actors act impermissibly, but we cannot fairly blame them, in light of the difficult circumstances they confront or their unusual personal qualities.
Interestingly enough, tort law pays little heed to this distinction. This is in part because tort law is less tolerant of excuses than is criminal law: insane defendants (who would be excused in criminal law) are still responsible for their torts, and those with below-average mental capacities are held to the higher standard of a person with normal capacities. But what does tort law say about excuses based on extraordinary difficult external pressures and circumstances (such as duress) rather than on unusual personal incapacities?
The “emergency doctrine” does permit some consideration of the difficulty circumstances that a defendant encounters. Suppose motorist D3, suddenly faced with a child immediately ahead in the path of his car, must decide whether to swerve to the left, towards motorist V4, or to the right, towards a concrete barrier; he swerves to the left, harming V4. In V4’s lawsuit, the court may instruct that the jury should consider the emergency circumstances in deciding whether D3 was negligent. But is the ultimate test whether D3 made the right decision in light of the facts available to him and the brief time for making a decision? (This amounts to a form of ex ante justification.) Or is the test instead whether, even if he made the wrong decision from an ex ante perspective, it is unjust to fault him in light of his understandable feeling of panic or an understandable instinct for self-preservation? (This amounts to an excuse.)
If it is proper for tort doctrine to reject excuses of mental incapacity, shouldn’t tort doctrine also reject excuses of external circumstances? But the issue is almost never directly addressed in tort doctrine or commentary. (With respect to intentional torts and the earlier examples of D1 and D2, the Second Restatement recognizes the justifications of self-defense and necessity, but it does not recognize an independent excuse of duress.)
2. Element analysis
One of the great analytic breakthroughs of the Model Penal Code was its adoption of what has been called “element analysis.” Instead of characterizing a crime as one of “intent” rather than “negligence,” or specific intent rather than general intent, the Code requires separate analysis of the culpability or fault that is required for each distinct element of the offense. Thus, rape is not simply an “intentional” crime; it is a crime requiring intention to have sexual intercourse with the victim, plus some other level of fault (e.g. recklessness or negligence or even strict liability) as to whether the victim failed to consent. That other level of fault needs to be separately analyzed and justified.
This insight has not been fully grasped by those who make tort doctrine. A given tort might have many elements, and the level of fault for these different elements need not be identical. Consider trespass to land. Under the Restatement Second, an actor is liable for trespass “if he intentionally . . . (a) enters land in the possession of the other.” Although the entry on land must be intentional, defendant remains liable for any mistake about whether he owns or is otherwise entitled to enter the land, even a reasonable mistake. Thus, intent is the requisite level of fault for one element of the tort (entering a particular piece of land); while strict liability is the requisite level of fault with respect to other elements (whether the land is in the lawful possession of another, and whether the trespass will cause harm to another). So it is a crude and misleading overgeneralization to characterize trespass as an “intentional” tort, insofar as it also imposes strict liability as to other elements. It would be much more perspicuous if trespass doctrine more explicitly identified and highlighted these different fault requirements.
The same problem arises with the intentional tort of battery. Courts differ on whether the defendant (1) must simply intend to cause a contact, or (2) must additionally intend to cause harm or offense. The usual formulation, “intentionally causing a harmful or intentional contact,” is regrettably opaque. A more precise formulation could clarify whether the court intends to endorse the “single intent” (1) or “dual intent” (2) approach. It could also clarify that even under the single intent view, battery actually has a second fault requirement: a requirement of negligence as to the victim’s lack of consent. If the defendant believes that the victim consents, but is negligent in not realizing that she does not consent, he is liable for battery. (But if he is reasonable rather than negligent in believing that she consents, then, under the apparent consent doctrine, he is not liable.) And, if it were better understood that even the “single” intent version of battery employs two fault requirements—intent to contact plus (at least) negligence as to the victim’s lack of consent—this might allay some of the concerns of those who support the alternative dual intent view because they fear that the single intent view is too hard on defendants.
3. Mixed theories
Consequences matter. But rights, desert, just distribution of risk, and fairness matter, too. How do we combine consequentialist justifications (including utilitarian and deterrence-oriented views) with nonconsequentialist ones (including deontological and virtue theories)?
Some years ago, Gary Schwartz noted that criminal law scholars, most famously H.L.A. Hart, were quite comfortable with “mixed” theories, theories that justify the scope, content, and limits of the criminal law by combining utilitarian considerations (deterrence, incapacitation, rehabilitation) with the nonconsequentialist imperative of affording wrongdoers their just deserts. Why, he asked, are tort scholars largely unwilling to endorse analogous mixed theories that combine utilitarian (especially deterrent) considerations with the nonconsequentialist imperative of securing corrective justice? Why do most scholars align themselves with one camp rather than the other? Isn’t a peaceable compromise possible?
His questions remain pertinent today. It is difficult to deny that the shape of tort liability rules at least sometimes will affect the behavior of primary actors and victims, and it is plausible to believe that deterrence is one important function and justification of tort rules. At the same time, the structure of tort litigation and the actual content of tort doctrine strongly support the explanatory and justificatory value of corrective justice, civil recourse theory, and other nonutilitarian approaches.
Indeed, even if one doubts the deterrent value of tort liability rules, many tort doctrines, especially negligence doctrines, require attention to “consequences” and “aggregation.” How can one talk sensibly about what risks a reasonable person would or would not take without talking at all about the expected consequences of various types or levels of precaution, and without somehow combining (at least some of) the advantages and disadvantages of taking each precaution? I have tried my hand at an answer to this question, which is notoriously difficult. But the question does seem to demand a “mixed” answer.
Finally, I recognize that any talk of “mixing” consequentialist and nonconsequentialist perspectives sounds a bit too much like the highly discretionary task of “mixing and matching” different parts of one’s wardrobe. Is it coherent to combine these perspectives, or is any effort to do so doomed to failure, as an unprincipled, arbitrary concatenation of radically dissimilar values? I do believe that a combination is intelligible—e.g., threshold deontology, or nonconsequentialism as a Nozickian side-constraint of pursuing consequentialist values. And some recent work along these lines is very promising. But the resulting mixture is admittedly messy and complex. The purist views of wholehearted consequentialists and unqualified nonconsequentialists have the great virtue of simplicity. Nevertheless, I think we should prefer a complex truth to a simple approximation or fiction.
- Ken Simons
Boston University School of Law
The Honorable Frank R. Kenison Distinguished Scholar in Law and
Professor of Law
 Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75
 For example, retributive principles might set the upper limit, or both the upper and lower limit, on permissible punishment, while utilitarian concerns dictate the appropriate punishment within that range.
 Kenneth W. Simons "Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy," in Symposium, 41 Loyola Law Review (2008).