Wednesday, March 30, 2011
On Friday, I mentioned two amusement ride deaths -- one train ride in South Carolina, and another on a roller coaster at the Houston Rodeo. As predicted, the latter has already resulted in a suit. You can see the complaint and answer at my other blog, MassTort.org.
RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Torts & Products Liability Law eJournal
January 28, 2011 to March 29, 2011
|1||328||Rules for Growth: Promoting Innovation and Growth Through Legal Reform
Robert E. Litan, Robert E. Litan, Yochai Benkler, Henry N. Butler, John Henry Clippinger, Robert Cook-Deegan, Robert D. Cooter, Aaron S. Edlin, Nicole Stelle Garnett, Ronald J. Gilson, Oliver R. Goodenough, Gillian Hadfield, Mark A. Lemley, Frank Partnoy, George L. Priest, Larry E. Ribstein, Charles F. Sabel, Peter H. Schuck, Hal S. Scott, Robert E. Scott, Alex Stein, Victoria Stodden, John E. Tyler, Alan D. Viard, Benjamin Wittes,
AEI-Brookings Joint Center for Regulatory Studies, Ewing Marion Kauffman Foundation, Harvard University, George Mason University - School of Law, Faculty, Unaffiliated Authors - affiliation not provided to SSRN, Duke Institute for Genome Sciences & Policy, University of California, Berkeley - School of Law, University of California at Berkeley, Notre Dame Law School, Stanford Law School, Vermont Law School, USC Law School and Department of Economics, Stanford Law School, University of San Diego - School of Law, Yale University - Law School, University of Illinois College of Law, Columbia University - Law School, Yale University - Law School, Harvard Law School, Columbia University - Law School, Yeshiva University - Benjamin N. Cardozo School of Law , Columbia University, Ewing Marion Kauffman Foundation, American Enterprise Institute, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 8, 2011
Last Revised: March 18, 2011
|2||277||Emotion, Neuroscience, and Law: A Comment on Darwin and Greene
Georgetown University - Law Center,
Date posted to database: February 14, 2011
Last Revised: March 7, 2011
|3||236||Exposing the Hocus Pocus of Trusts
Kent D. Schenkel,
New England Law - Boston,
Date posted to database: February 28, 2011
Last Revised: February 28, 2011
|4||130||Climate Change, Courts, and the Common Law
Benjamin Ewing, Douglas A. Kysar,
Yale University - Law School, Yale University - Law School,
Date posted to database: January 31, 2011
Last Revised: February 23, 2011
|5||112||Torts Compendium, Volume Two (Version 1.0)
Eric E. Johnson,
University of North Dakota School of Law,
Date posted to database: February 2, 2011
Last Revised: February 2, 2011
|6||96||The Normativity of Private Law
Stephen A. Smith,
McGill University - Faculty of Law,
Date posted to database: March 7, 2011
Last Revised: March 7, 2011
|7||90||Meaning, Purpose and Cause in the Law of Deception
Georgetown University - Law Center,
Date posted to database: February 9, 2011
Last Revised: March 11, 2011
|8||84||Tort in Three Dimensions
John C. P. Goldberg,
Harvard Law School,
Date posted to database: February 23, 2011
Last Revised: February 23, 2011
|9||82||Risk Regulation and Regulatory Litigation
University of Oxford - Faculty of Law,
Date posted to database: March 10, 2011
Last Revised: March 14, 2011
The Law and Economics of Liability Insurance: A Theoretical and Empirical Review
Tuesday, March 29, 2011
The topic of the 2011 Clifford Symposium on Tort Law and Social Policy is a "Festschrift for Robert Rabin."
Bob Rabin is one of the towering figures of American tort law. His work has influenced the way we think about virtually all the critical questions confronted by tort scholars. His writings on the tobacco controversy, alternative compensation systems and tort theory have powerfully affected discourse on these topics. His casebook, with Franklin and Green, has served as the introduction to tort law for thousands of students. In 2008, Bob was the recipient of the William Prosser Award for scholarship, teaching and service from the AALS Section on Torts and Compensation. Bob also has been a great friend to the Clifford Symposium. He has appeared on the program more than a half dozen times and has contributed seminal pieces about enabling torts (49 DePaul Law Review), the tobacco wars (51 DePaul Law Review), the September 11th Compensation Fund (53 DePaul Law Review), and noneconomic loss (55 DePaul Law Review). It is with the greatest pleasure and pride that we seek to honor our dear friend and colleague, Bob Rabin, at the 2011 Clifford Symposium on Tort Law and Social Policy.
The program includes an amazing line-up of torts scholars. Session I, Reflections on Tort Theory, includes presentations by Mark Geistfeld, John Goldberg and Ben Zipursky, and Stephen Sugarman. Session II, Tort Law and the Administrative State, includes presentations by Ellen Pryor, Peter Schuck and Cathy Sharkey. The symposium continues on Friday with a panel on Perspectives on Compensations Schemes with presentations by Nora Engstrom, Myriam Gilles and Michael Green. The final panel, Perspectives on Liability Rules, includes presentations by Ken Abraham, Greg Keating, and Tony Sebok.
Registration is free. The symposium will take place April 14-15, 2011, at DePaul.
Monday, March 28, 2011
Bret Michaels filed a lawsuit against CBS and the Tony Awards on Friday based on the stage scenery that dropped and hit him when he performed at the 2009 Tony awards. His suit seeks unspecified damages, but ties the 2009 injury to the brain hemorrhage that he suffered in 2010.
In addition to the expected negligence claim, the complaint (pdf) brings claims for battery, negligent interference with economic advantage, and negligent misrepresentation.
Saturday, March 26, 2011
Friday, March 25, 2011
- Neither incident has yet resulted in litigation, but probably will; two deaths on amusement rides last weekend. I'm covering them at MassTort.org.
- Suit alleges casino bus driver fell asleep, resulting in crash that killed fifteen. (USA Today, and an interesting but only tangetially related story in the New York Times)
- Suit alleges injuries in fall resulted from shoes materials sticking together. (Sun Times)
- Teacher threatens student with defamation suit for complaining about her grades. (SGVTribune.com)
- Court reinstates cheerleader's lawsuit alleging negligence resulting in her injury at cheerleading camp. (Chicago Tribune)
- Indiana appellate court considering claim of woman suing Carnival Cruises for having boats go too fast. (USA Today via Overlawyered)
- Preview of important FELA Supreme Court argument. (SCOTUS blog)
Reform, Legislation, Policy
- Government launches web portal for reporting produces perceived to be dangerous. (SaferProducts.gov)
Trials, Settlements and Other Ends
- Lawsuit over post-Katrina deaths in a hospital settles during jury selection. (Pro Publica)
- Stan Chesley in trouble. (Abnormal Use
Thursday, March 24, 2011
Via Day on Torts comes this California appellate court decision (PDF) addressing a question frequently addressed in Torts books regarding consent and so on -- the liability of a partner for transmission of an STD in an otherwise-consensual sexual relationship. The opinion, while affirming liability for the plaintiff, also reduces the damages.
Wednesday, March 23, 2011
Mark Weber (DePaul) has posted to SSRN The Common Law of Disability Discrimination. The abstract provides:
In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination.
On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases.
Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.
Tuesday, March 22, 2011
Dan Dobbs is a Regents Professor and the Rosenstiel Professor of Law at the University of Arizona James E. Rogers College of Law. He is the author of two leading treatises – The Law of Torts, and The Law of Remedies – and a coauthor of the treatise Prosser & Keeton on Torts. He has guided many casebooks to print, including five editions of Torts and Compensation Systems, the last three with co-author Paul T. Hayden. In addition, he has published more than thirty scholarly articles. He also served as a past Chair of the Association of American Law Schools Torts and Remedies sections, and continues to be an active member of the American Law Institute. In 2010, he was awarded the Robert B. McKay Law Professor Award by the American Bar Association Tort Trial & Insurance Practice Section.
I recently was able to ask Professor Dobbs some questions about his career:
1. Why did you apply to law school? Where did you go to law school, and why did you select that
I went to law school because I'd just got married and had no plans. The University of Arkansas, in my home state and I chose it because it never occurred to me I might have an opportunity elsewhere.
2. Who was your Torts professor, and what was your experience as a Tort student?
My torts professor was Dean Robert A. Leflar. I was in awe. He taught in old Socratic style. His first words in the first class were: "Mr. Dozier, give us your brief of the first case." The first case, I think it was I de S and Wife, was entirely in Latin, of which I read not one word. I couldn't leave, though--the door was just behind Dean Leflar's desk. After that it was not bad at all.
3. How did you become interested in teaching law and Torts in particular?
I actually liked law school and thought all the moaning and groaning of some students was self-dramatizing and funny. So I always wanted to try my hand teaching. For me that would be torts, since my practice for a little over four years was mostly in torts.
4. When did you begin teaching Torts, and how has the course and the Torts professoriate changed since then?
I began teaching at UNC in the fall of 1961. I'm not sure I have a good read on how the professoriate has changed. My overall impression is that it has become more intellectually distanced from students who are not going to be teachers but practitioners, corporate or government lawyers. Correspondingly it seems to me that many torts teachers don't have courtroom, jury-trial experience, which might be especially important in the personal injury part of tort law. (On the other hand, some of the professors today actually understand mass tort litigation, which I certainly do not!)
5. What do you see as your major accomplishment as a Torts scholar and professor?
My accomplishment as a torts scholar is the book, Law of Torts, which will be coming out in the second edition in June, 2011.
Monday, March 21, 2011
Law Technology News reports that the federal government has launched SaferProducts.gov, as required under the Consumer Product Safety Improvement Act of 2008. The website allows consumers to file reports about hazardous products, and then allows other consumers to search and review these filings.
According to the press release,
Following procedures set up by the law, CPSC will review all online Reports and have five business days to transmit qualifying Reports to the manufacturer, where practicable. Manufacturers then have 10 business days during which they may respond and provide comments and/or claims. At the end of the 10 day period, if all requirements are met, the Report and the manufacturer’s comments will be posted on SaferProducts.gov
Thanks to Lisa Smith-Butler for the info.
Friday, March 18, 2011
- Guatamalans who were deliberately infected with syphilis in the 1940s file class action against U.S. government under Alien Tort Statute. (MSNBC/AP, WSJ Law Blog)
- DOJ opposes Virginia's attempt to take a direct appeal to the U.S. Supreme Court on health care bill suit. (WSJ Law Blog, ABA Journal, SCOTUS Blog)
Reform, Legislation, Policy
- Movie theater owners fight calorie disclosure rules for movie menus. (WaPo)
- California punitive damages bill fails to pass out of committee. (Cal Punitive Damages)
- Florida Senate passes bill allowing evidence of everyone who contributed to accident in "crashworthiness" cases against manufacturers. (Naples News)
Trials, Settlements and Other Ends
- In honor of spring training, two baseball items:
Thursday, March 17, 2011
Sushi Maki, a Miami-based Japanese restaurant chain, is kind enough to provide diners with chopsticks. Not uncommon. However, their chopsticks are far more entertaining than average. On one side of the wrapper, there are drawings of ways one can use the chopsticks as part of a costume. For instance, if you have both chopsticks behind your ears, they stick out like horns ("El Diablo"); if you hold them both straight up behind your ears, they look like antennae ("My Favorite Martian"). Here's the torts angle. On the other side of the wrapper is the warning:
WARNING: Professional Chopstick Stunt People were used for the drawings above. In real life, chop sticks are dangerous - even lethal in a ninja warrior's hands. You could poke your eye out, or tear your rotator cuff or something. So our lawyers tell us that we have to warn you that they can be dangerous and cause serious physical harm if you use them for anything but eating. Sushi Maki is not liable for any damage or harm that may come to you from the improper handling of these utensils. Parents, watch your children closely and please exercise caution. Or just ask for a fork. Which could be dangerous too, we guess. Eating with your hands would be safe, but messy. Good luck.
Thanks to my research assistant, Ulysses Wilson, for bringing these back from Florida.
Wednesday, March 16, 2011
Richard Cupp (Pepperdine) has posted to SSRN another piece from Pepperdine's symposium last spring, International Tobacco Litigation's Evolution as a United States Tort Law Export: To Canada and Beyond? The abstract provides:
In the late 1990’s, the states’ healthcare reimbursement lawsuits against the tobacco industry were settled for approximately $246 billion. In the wake of this enormous settlement, many similar lawsuits were initiated in other nations or by other nations. Most of these early healthcare reimbursement lawsuits failed. However, in 2005, the World Health Organization Framework Convention on Tobacco Control was finalized by over 150 nations, and today has been ratified by 168 nations. The Framework encourages nations to consider tort litigation against tobacco sellers as a way to limit tobacco usage. Canada’s provinces have been particularly aggressive in seeking to use healthcare reimbursement lawsuits inspired by the United States litigation as a tool for tobacco control. This Article considers ways in which United States-style litigation against tobacco companies might be both helpful and hurtful for other nations.
Tom Baker (Penn) and Peter Siegelman (Connecticut) have posted to SSRN The Law and Economics of Liability Insurance: A Theoretical and Empirical Review. The abstract provides:
We survey the theoretical and empirical literature on the law and economics of liability insurance. The canonical Shavell model predicts that, despite the presence of some ex ante moral hazard (care-reduction by insureds), liability insurance will generally raise welfare because its risk-spreading gains will likely be larger than its adverse effects on precautionary activities. We discuss the numerous features of liability insurance contracts that are designed to reduce ex ante moral hazard, and examine the evidence of their effects. Most studies conclude that these features work reasonably well, so that liability insurance probably does not generate substantial ex ante moral hazard. Its effects on ex post moral hazard (the increased tendency of victims to sue in the presence of insurance) are not as clear, however, and the welfare consequences of increased litigation are ambiguous, for reasons we explain. We discuss additional issues such as the effects of liability insurance when some defendants are judgment-proof, the problems posed by non-independence of liability risks owing to changes in legal doctrines, and the cyclical nature of liability insurance markets.
Tuesday, March 15, 2011
Congratulations to Torts Prof's own Chris Robinette for being awarded tenure at Widener University School of Law!!
We are delighted for Chris, though not at all surprised by his latest accomplishment!
So, please join us in extending congratulations from TortsProf!
Monday, March 14, 2011
Saturday, March 12, 2011
Mike Rustad (Suffolk) has posted to SSRN Torts as Public Wrongs from last spring's Pepperdine symposium. The abstract provides:
This Article is a rejoinder to the civil recourse theorist's claim that tort law will be better served by retreating to the philosopher's prefecture of private wrongs. A subsidiary goal of this Article is to refute John Goldberg's claim that my sociologically-inspired theory of torts as public wrongs serves the interests of tort reformers rather than American consumers. In a nutshell, civil recourse theory is "tort reform in disguise," not the concept of torts as fulfilling wide-ranging purposes such as the social control of corporations. If judges adopt civil recourse theory, they will be less inclined to recognize new causes of action and plaintiff classes deferring instead to legislatures. Tort law is the multi-tasker of the common law and does far more than redress private wrongs.
Tort law not only redresses private wrongs, it also advances general deterrence through social control. The contemporary Toyota sudden acceleration claims and the BP oil spill are examples of how tort law tackles collective injuries impacting the consuming public, the environment, and communities. While it is unclear what role tort law will ultimately play in redressing these collective injury cases, social interests will be relevant. This Article, which makes the case that tort law can and should redress public wrongs, unfolds in six parts. Part II introduces the idea of the teleological telescope and the deontological microscope illustrating their operation in sociological theory.
In this part of the Article, I explain how the grand theories of classical sociology were telescopic, but some modern theorists miniaturized their perspective to focus on the individual and the small group. Part III describes how modern tort theory has divided into competing camps based upon whether legal academics use a macroscopic or a microscopic approach. The basic distinction is that tort scholars use either a functional telescope (to study public wrongs) contextually or the philosopher's microscope to understand individual cases and controversies in an abstract way. The division between macrotort and microtort theories is the functional equivalent of how these approaches play out in classical and contemporary sociological theory. Torts have a micro aspect applicable to the pressing facts of the individual case and the relationships between the parties, but they also have macro features such as general deterrence and social control that fill in the interstices between criminal and civil law and resonate our collective beliefs.
Part IV comments on civil recourse theory's obscurantism and its lack of fit with the empirical reality of modern tort law's complexity. In this part of the Article, I discuss the civil recourse theorist's misguided attempt to reduce the multiplicity of American tort law to one single "true" quintessence. To me, it seems that the main problem with this pure theory of tort law is its separation from social context such as gender, race, social class, power, and social change. What is important to note here is that torts often redress public wrongs, beyond the interests of the immediate parties.
Part V gives my pluralistic account of torts as public wrongs. While the manifest function of tort law is civil recourse or compensation, its latent function is vindicating public wrongs. The latent function - the hidden face - of tort law is its public policy role addressing corporate misconduct from the bottom up rather than through a top-down government monolith. The key institution is the plaintiff in the role of private attorney general who seeks civil recourse but also fulfills a broader purpose of identifying and punishing reckless corporate defendants who had previously evaded the attention of the public authorities.
Part VI applies my sociological theory of public wrongs to the widespread problems created by dangerously defective software. The tort law lag in addressing defective software demonstrates the need to permit tort law to evolve to address social problems. Hence, the focus is how "we the people" need brawny tort remedies to address social problems in the information-based economy.
Thursday, March 10, 2011
I know it's lean, but it's the week of spring break...
- NY: $2,500 pain-and-suffering verdict for neck pain from electric shock at Pizza Hut affirmed on appeal. (Hochfelder/New York Injury Cases Blog)
- LA: Appellate court reinstates SJ against injured teen who rode oil pump. (Olson/Overlawyered)
Reform, Legislation, Policy
- Kip Viscusi on "Does Product Liability Make Us Safer?" (SSRN)
- Texas considers banning texting while driving. (Perlmutter & Schuelke)
Trials, Settlements and Other Ends
- Royals not liable for wayward frankfurter. (ABA Journal)
- Verdict statistics on severe leg injuries (Miller/Maryland Injury Lawyer Blog)
- Congratulations to our own Bill Childs and his team from Western New England. The team reached the quarterfinals, and won best brief (petitioner) and best oralist at Rendigs.
Forbes (via Overlawyered) has a post up exploring why there might be fewer tort suits in Switzerland than in the U.S., despite the former having some pretty intense ski and other winter sports facilities.
A query, though: Is it clearly true that there are more winter sports-related lawsuits in the U.S.? I know that at least Colorado and some other major ski states have statutory no-duty rules as to many (statutorily-defined) inherent risks (a survey is here). Those defined inherent risks would seem to include the tree trunks, exposed banks, and other hazards that are described as "whizzing by" in the Forbes piece. With some exceptions, those rules should eliminate at least some cases from being filed at all, and get more dismissed at the 12(b)(6) stage.
Certainly the differences between Swiss and U.S. systems are relevant and interesting, and seem likely to result in less litigation, but the whole piece, and the title of the Overlawyered piece, seem to assume a fact that isn't self-evident (or supported in the post) -- that there is materially more tort litigation against snow sport entities in the U.S. than in Switzerland. State legislators appear cognizant of tort risks against ski areas and to have at least provided some protection.