June 3, 2011
Personal Injury Roundup No. 106 (6/3/11)
It's been quite a week in western Massachusetts, between the tornadoes earlier in the week (which went across our campus but, thankfully, did relatively little damage to the college) and my daughter's completion of elementary school (she's pictured to the right in her graduation dress, which, yes, has historically-significant headlines). But the world of torts carries on!
- Cop charged with extortion after demanding $2,000 from alleged wallet thief sues the alleged thief/extortion victim for intentional infliction of emotional distress. Get all that? It's complicated. (Newstimes.com)
- South Carolina AG sues Glaxo Smith-Kline over Avandia. (Business Week)
- A look at Alien Tort Claims appeals involving allegations of US companies aiding state violence overseas. (Thomson Reuters)
- GoDaddy loses appeal over wrongful domain transfer, with the court rejecting applicability of economic loss doctrine. (The Register)
- New York's Court of Appeals will hear the negligence case brought against the owners of the World Trade Center arising out of the 1993 bombing. (NJ.com)
Reform, Legislation, Policy
- South Carolina's Senate adopted caps on punitive damages, with various exceptions. (TheState.com)
- LA Times editorializes against the deductibility of punitive damages as business expenses. (LAT)
- Heck of a story, involving BigLaw, an effort to discredit the entire judicial system of Madison County, plus the former first lady of Illinois as the PR person suggesting that campaign. Yeah! (Chicago Tribune)
- As mentioned above, a tornado went through the campus of Western New England. This video was shot about a block from the School of Law and shows that the tornado went right over it -- remarkably doing very little damage:
June 1, 2011
Three by Cardi
If anyone has been wondering what Jonathan Cardi (Wake Forest) has been doing lately, I have an answer. He just posted three pieces to SSRN. First, The Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm. The abstract provides:
The elements of the debate between Judges Cardozo and Andrews in Palsgraf are canonical: (1) What is the nature of duty—is it relational or act-centered?; (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause?; (3) Is court or jury the proper arbiter of foreseeability? An exhaustive examination of the case law on these questions reveals a deep disconnect between what most of us learned in law school and what is playing out in modern courts. Close scrutiny of Palsgraf’s present-day incarnations also lends an invaluable birds-eye view of duty law, an area so rife with inconsistency and contradiction that it often bears more resemblance to constitutional law than the quintessential common-law doctrine that we expect from tort cases. This article melds the doctrinal with the theoretical. It is the first comprehensive survey of Palsgraf since Prosser’s Palsgraf Revisited, in 1953, and it is also a bottom-up inquiry into the “meaning” of duty in today’s courts. The most significant findings of the article are as follows: (1) Most courts have not bought into Cardozo’s relational view of duty—instead, courts are nearly unified in the view that duty is, at its core, a multi-factor policy analysis, although courts do not agree on the relevant factors; (2) Cardozo has overwhelmingly won the day on plaintiff-foreseeability’s place in duty versus proximate cause—a fact which contradicts Palsgraf’s common treatment in law school classrooms as well as the Restatement (Third) of Torts—although Cardozo’s directive that foreseeability is to be decided categorically has not been broadly adopted; and (3) In a bizarre twist, a majority of courts leave duty-foreseeability’s determination to the jury. This final discovery provides important insight into a hidden tension that has smoldered in courts’ negligence jurisprudence at least since Palsgraf was decided eighty-three years ago.
Second, Does Tort Law Really Deter? (with Randy Penfield and Albert Yoon). The abstract provides:
For nearly four decades, economic analysis has dominated academic discussion of tort law. Courts also have paid increasing attention to the potential deterrent effects of their tort decisions. But at the center of each economic model and projection of cost and benefit lies a widely-accepted but grossly under-tested assumption that tort liability, in fact, deters tortious conduct. This article reports the results of a behavioral science study that tests this assumption as it applies to individual conduct.
Surveying over 700 first-year law students, the study presented a series of vignettes, asking subjects to rate the likelihood that they would engage in a variety of potentially tortious behaviors under different legal conditions. Students were randomly assigned one of four surveys, which differed only in the legal rules applicable to the vignettes. In summary, the study found that although the threat of potential criminal sanctions had a large and statistically significant effect on subjects’ stated willingness to engage in risky behavior, the threat of potential tort liability did not. These findings call into question widely-accepted notions about the very foundations of tort law.
Third, The Taxpayer's Burden from Products-Related Harm (with Ruth Ruttenberg and Estye Fenton). The abstract provides:
Hundreds of billions of dollars are spent every year in the public sector as a result of death, injury, and illness associated with products. The taxpayer takes on this burden, a reality that ought to be considered by courts and policy makers when setting the standards for liability and levels of regulation governing products. Yet, to date, the government has made no attempt to trace specific government expenditures to product-related injuries. Indeed, due to the dearth of government data on the subject, no one to the authors’ knowledge has even constructed an estimate of product-related public expenditures. This article attempts to bridge this gap by gauging the taxpayer’s burden from two vantage points. First, the article collects data with regard to government spending potentially related to product harm and then approximates the percentage of expenditures traceable to such harm. The result of this methodology is an estimated $327.8 billion annual burden on the taxpayer. As a check on this figure, the article approaches the question from the opposite direction. Marshaling existing data on the annual number of product-related injuries, the article assigns an average per-injury cost and then assesses the percentage of the total cost borne by the government. According to this second methodology, the annual taxpayer burden associated with products is $1.089 trillion. Despite consistent attempts by the authors to adopt conservative measures in conducting this study, the resulting numbers are astounding and must not be ignored in the policy debates ongoing in courts, legislatures, and media centers across the country.
May 31, 2011
Libeled in a Tweet?
The ABA Journal reports that Courtney Love's former lawyers have filed a libel suit against her based on a tweet she sent after she terminated the representation.
Thanks to Lisa Smith-Butler for the story.
May 30, 2011
Happy Memorial Day!
Memorial Day was originally known as "Decoration Day," a reference to the practice of decorating the graves of war veterans. In 1971, Congress declared Memorial Day a federal holiday to be celebrated on the last Monday in May. On May 2, 2000, then-President Bill Clinton issued a memorandum calling on Americans "to pause for one minute at 3:00 p.m. (local time) on Memorial Day, to remember and reflect on the sacrifices made by so many to provide freedom for all."
You can find more information about the history of Memorial Day from the History Channel.