Monday, October 31, 2011
Friday, October 28, 2011
We don't do much to look for award nominations and the like, but we got word that we've been selected as an initial nominee for a Top Torts Blog award from LexisNexis's Litigation Resource Community. There are some great blogs we're among there, and we'd sure welcome your support for the nomination (which you cast by commenting on that post). If we make it as a final nominee, we'll let you know.
Thursday, October 27, 2011
The Torts & Compensation System section of AALS has announced its program for the 2012 conference, and it features our very own Chris Robinette. Here's the description:
9:00 AM - 12:00 PM January 5
 Section on Torts and Compensation Systems
Maryland Suite A, Lobby Level, Washington Marriott Wardman Park Hotel
Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory
Moderator: Michael L. Rustad, Suffolk University Law School
Speakers: Guido Calabresi, Judge, U.S. Court of Appeals, 2nd Circuit, New York, NY
Martha E. Chamallas, The Ohio State University, Michael E. Moritz College of Law
John C. Goldberg, Harvard Law School
Christopher J. Robinette, Widener University School of Law
Benjamin C. Zipursky, Fordham University School of Law
Recently, civil recourse theory has emerged as an attempt to unify tort law around the concept of private wrongs. By arguing that the point of tort law is to empower victims to rectify civil wrongs against them, civil recourse theory offers an elegant means to reduce the plurality of theories that have dominated tort scholarship since the 1970’s. This panel will explore the implications of paring down tort law to civil recourse. Professors Goldberg and Zipursky, who have been pioneers in developing civil recourse theory, will present the concepts and methods of this theory. Judge Calabresi, the 2010 Prosser Award recipient, will explore the implications of deemphasizing loss spreading and deterrence. Professor Chamallas will examine civil recourse theory drawing upon her work on how race, gender, and class interrelate with tort law developments. Finally, Professor Robinette will address the question of whether civil recourse can unify the law focusing on whether it is a complete account. Panelists will also address whether tort law should have a public
purpose beyond civil recourse.
Business Meeting at Program Conclusion.
--BC (who will, alas, be in Orlando to run the Disney Half Marathon that weekend)
Tuesday, October 25, 2011
Tom Galligan (President, Colby-Sawyer) and Brittan Bush (LSU) have posted to SSRN Displacement and Preemption: The OPA's Effect on General Maritime Law and State Tort Law Punitive Damages Claims. The abstract provides:
There are many levels at which we must seek to understand the Deepwater Horizon disaster. They include the scientific, the technological, the economic, the regulatory, and the legal. One of the essential ways in which we Americans redress rights and try to right wrongs is through civil litigation, and the Deepwater Horizon disaster has appropriately spawned litigation. Victims of the disaster have filed claims against the various parties allegedly responsible for the explosion and spill. They have filed tort claims arising under general maritime law and state tort law. They have sought compensatory damages as well as punitive damages - punitive damages are designed to punish and deter those allegedly responsible for allegedly reckless, tortuous activity. Those injured have also filed statutory damages claims under the Oil Pollution Act of 1990 (OPA).
The question then, is what, if any effect, does the OPA have on maritime or state punitive damages claims in cases to which it applies? Does the OPA displace or preempt pre-existing claims? Our answer is that punitive damages are recoverable under either general maritime law or state law even if the OPA also applies.
As we explain below, Congress’ intent is clear that the OPA has no effect at all on state law claims. Likewise, punitive damages are still recoverable under the general maritime law in a case to which the OPA also applies. This conclusion is based on several reasons: (1) the OPA is silent on punitive damages, (2) OPA’s express maritime savings provision, (3) OPA’s legislative history, (4) a review of U.S. Supreme Court maritime jurisprudence addressing the effect that the passage of new statute has on a pre-existing general maritime law claim, (5) an analysis of other no fault schemes and their effect on pre-existing tort claims, (6) and the fact that punitive damages are remedial in nature.
Troutman Sanders LLP has announced the launch of the Virginia Product Liabilty Law Blog, which will provide defense-perspective commentary on products liability litigation in Virginia.
Thanks to Bill Janssen for the news.
Monday, October 24, 2011
In In re Hannaford Bros. Co. Customer Data Security Breach Litig. (pdf), the First Circuit reversed the dismissal of negligence and implied contract claims against Hannaford Supermarkets by customers who were victims of a data breach. The court found that "plaintiffs' reasonably foreseeable mitigation costs constitute a cognizable harm under Maine law." Specifically, the court found that the purchase of identity theft insurance and replacement card fees constituted harm.
Thanks to Lisa Smith-Butler for the alert.
Friday, October 21, 2011
The Georgia Supreme Court agreed to take up a case challenging the limitations of liability for landowners when a person is injured by a wild animal. The details of the case:
In October 2007, 83-year-old Gwyneth Williams was house-sitting for her daughter and son-in-law in their Savannah-area suburb while the couple were in Europe.
Neighbors found Williams floating dead in one of the many lagoons that dot the swampy coastal development, known as The Landings. A medical examiner determined that an alligator had bitten off Williams' forearms, her hands and her right foot. A trapper eventually found an 8-foot alligator, killed it and found Williams' body parts inside the creature's stomach.
Williams's survivors brought suit, challenging the doctrine that landowners are not liable for wild animals unless the landowner has domesticated or controlled the animals.
Eric Turkewitz has a great post on New York's highest court wading into the issue of what constitutes a "serious injury" for purposes of the state's no-fault threshold. The failure to set proper thresholds is one of the biggest reasons that no-fault has not performed as well as it was expected to. Monetary thresholds were set too low and verbal thresholds were too vague. Eric rightfully challenges the language of New York's verbal threshold (and it's one of the best-drafted statutes).
Tighter threshold language is relevant to an issue I've been working on lately. The Malaysian automobile tort system is terribly inefficient. Among other things, Malaysia has separate hearings for liability and damages, often months or even years apart. A group of Malaysian researchers led by Norila Abu Hasan is preparing a no-fault choice automobile proposal. Last December, they visited the United States and consulted several scholars, including Andy Popper and Jeffrey O'Connell. I told them drafting a proper threshold was crucial to the success of the system. I'll be presenting a paper on thresholds in Malaysia in December.
Eric provided the language in the New York statute in his post, complete with his italicized portions indicating vagueness problems:
- A personal injury that results in death;
- A significant disfigurement;
- A fracture;
- The loss of a fetus;
- Permanent loss of use of a body organ, member, function or system;
- Permanent consequential limitation of use of a body organ or member;
- Significant limitation of use of a body function or system; or
- A medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”.
Eric also recommended that the legislature revisit the language. As someone who will be recommending threshold language in the near future, how should it be changed? I'd love to hear from Eric or anyone else who has ideas on the subject.
Tuesday, October 18, 2011
From the AALS Torts and Compensation Section's Executive Committee:
The William Prosser award will be presented at our Section meeting on January 5, 2012 at 9-12 pm. The Prosser Award was created and presented to its first recipient, Leon Green, in 1974. Later awardees included Fleming James Jr., Wex Malone, W. Page Keeton, John Wade and Willard Pedrick. More recent honorees include Dan B. Dobbs, Guido Calabresi, Oscar Gray, and Robert Rabin.
The AP reports that the Mississippi Supreme Court has called for additional briefing in a certified question regarding the constitutionality of Mississippi's $1 million cap on non-economic damages.
Specifically, in the case before the court, the parties agreed that $2.2 million of the $4 million jury award was for non-economic damages. The Mississippi Supreme Court has asked the parties to explain how they reached that amount.
More from the AP story.
Monday, October 17, 2011
Bridget Crawford posts, at Feminst Law Professors, asking where the women are in a recent torts symposium published by the William Mitchell Law Review (in which one out of fourteen participants is female), and links to a 2009 post from Ann Bartow noting another symposium with zero female participants.
Thursday, October 13, 2011
Next Friday, Harvard is hosting a conference on the New Private Law. TortsProf John Goldberg is leading a roundtable discussion. The torts portion of the conference is:
Panel #4 – Tort Law: 12:10 – 1:00
Presenter: Benjamin Zipursky, Fordham University School of Law
Moderator: Arthur Ripstein, University of Toronto Faculty of Law
Commentator: Keith Hylton, Boston University School of Law (Visiting Professor, Harvard Law School)
Commentator: John Oberdiek, Rutgers School of Law – Camden
The full schedule is available from Larry Solum at LTB.
Wednesday, October 12, 2011
Kenneth Simons (Boston University) has posted to SSRN Ignorance and Mistake of Criminal Law, Noncriminal Law, and Fact. The abstract provides:
After clarifying the distinction between mistakes of fact and mistakes of law, this article explores in detail an important distinction within the category of mistake of law, between mistake about the criminal law itself and mistake about noncriminal law norms that the criminal law makes relevant - for example, about the civil law of property (in a theft prosecution) or of divorce (in a bigamy prosecution). The Model Penal Code seems to endorse the view that mistakes about noncriminal law norms should presumptively be treated as exculpatory in the same way as analogous mistakes about facts. Case law on the matter is more ambiguous.
As a matter of policy, when should mistakes of noncriminal law exculpate? Should they always be treated in the same manner as an analogous mistake of fact? Sometimes? Answering these questions is a complex matter; the article identifies some relevant factors.
Conversely, when should a mistake of noncriminal law inculpate, creating attempt liability? In the parallel scenario of factually impossible attempts, liability is frequently imposed. But I suggest caution before recognizing attempt liability here.
Classifying a mistake as one of criminal or noncriminal law is especially difficult in three scenarios: the incorporation of a civil schedule of prohibited items within a criminal law, the criminalization of acts that violate a civil regulatory prohibition, and criminal law terms whose meaning draws from both criminal law and civil law.
A final section questions the view that we should always give symmetrical treatment to (1) exculpatory mistake and ignorance (precluding liability for the completed crime) and (2) inculpatory mistake and ignorance (producing liability for the attempt). This view is especially implausible when applied to categories of mens rea other than belief or knowledge. Ignorance, for example, will often exculpate, but it will rarely inculpate.
Monday, October 10, 2011
The blogosphere is talking about a recent decision by the United States Court of Appeals for the Second Circuit: Johnson v. Nextel Communications, Inc. (pdf). In Johnson, the Second Circuit allowed clients to sue their own attorney - and even the defendant - for breach of fiduciary duty in entering a settlement agreement. Never certified as a class action, the plaintiff's counsel had reached an aggregate settlement agreement with Nextel for various discrimination claims
As Adam Zimmerman wrote on ADR Prof:
The settlement agreement in Johnson created a dispute resolution process for a large group of clients, represented by the same law firm, who commenced similar employment discrimination claims against Nextel. Among other things, the agreement included tight time frames for claimants to participate and resolve their claims; the agreement even reduced plaintiff counsels’ fee awards, on a sliding scale, when they failed to persuade clients to meet those deadlines or participate in the settlement. By entering into the deal, according to the Second Circuit, the plaintiffs’ former lawyers “violated [their fiduciary] duty to advise and represent each client individually, giving due consideration to differing claims, differing strengths of those claims, and differing interests in one or more proper tribunals in which to assert those claims.” . . . [T]he plaintiffs’ law firm also agreed to take on a multi-million dollar consulting agreement with defendants after all the individual claims finally settled
Sunday, October 9, 2011
At "Torts Today," George Conk (Fordham) is reporting that the First Circuit upheld a plaintiff's verdict in a case in which a table saw lacked instant braking "saw stop" technology. The case is Osorio v. One World Technologies; Conk's post is here.
Thursday, October 6, 2011
In litigation that presents some good examples of the limits (or not) of third-party liability, families of some alleged victims of Boston mob boss James "Whitey" Bulger have been engaged in long-standing civil litigation against the FBI for their asserted failure to prevent Bulger and other informants from murdering their loved ones. NPR's Morning Edition has an update on this morning's show.
Wednesday, October 5, 2011
Gov. Walker called the Wisconsin State Legislature into session last week to focus on jobs. Among other issues, four tort reform proposals will be introduced:
(1) A bill requiring courts to consider certain factors in determining reasonable attorneys' fees;
(2) A bill providing immunity for certain drug and device manufacturers based on preemption;
(3) A bill preempting courts in WI from adopting R3's "flagrant trespasser" doctrine; and
(4) A bill changing the interest rates on judgments in certain actions.
The State Bar of Wisconsin has the details.
Monday, October 3, 2011
The Tennessee Civil Justice Reform Act, signed by the governor back in June, took effect on October 1st. The new law contains venue provisions, caps non-economic damages, and caps punitive damages. The same bill also contained the "Class Action Improvement Act of 2011," which would prohibit class actions under Tennessee's consumer fraud statute. A copy of the bill is available here: http://www.capitol.tn.gov/Bills/107/Bill/SB1522.pdf