January 29, 2011
Rabin on Toxic Torts
Robert Rabin (Stanford) has posted to SSRN Harms from Exposure to Toxic Substances: The Limits of Liability Law. The abstract provides:
In the early 1980s, there was great optimism about the prospects for a dawning era of toxic harms litigation, arising out of a heightened sensitivity to public health and safety concerns. This new sensitivity had been manifested in the preceding decade through a whirlwind of political activity, highlighted by such landmark Congressional legislation as the Clean Air Act, the Federal Water Pollution Control Act, and the Occupational Safety and Health Act, and by the establishment of the Environmental Protection Agency. Along parallel lines, a singularly proactive judicial framework for strict products liability emerged in the mid-1960s from a series of California Supreme Court cases and the promulgation of the Restatement (Second) of Torts, section 402A. To some, the stage seemed set for ushering in a new era. In this brief overview, I begin by highlighting some of the key early developments in the toxic tort domain and the contemporaneous critical literature in the 1980s. I then offer some thoughts on the mixed success realized in the ensuing years, focusing on the limitations imposed on the new types of claims by the institutional structure of tort law, but at the same time noting the expansive themes in more traditional types of claims - such as duty to warn - as well as in aggregation strategies of a less formal character. In concluding, I raise the question of comparative institutional competence: Do more conventional regulatory strategies for controlling risks associated with toxic exposures offer greater promise as policy options?
January 28, 2011
Personal Injury Roundup No. 92 (1/28/11)
- Parents of a California woman killed in a gas line explosion filed suit against the pipe owner for negligence and wrongful death. (Huff Post)
- Madoff victims sued the SEC for negligence. (Detroit News)
- Ninth Circuit finds state law duty-to-warn claims are not preempted in generic drug suit. (FDA Law Blog, Drug & Device)
- Fifth Circuit rejects Katrina class action settlement. (Civ Pro Profs)
Reform, Legislation, Policy
- Wisconsin legislature passes bill limiting punitive damages and pain-and-suffering damages in certain cases. The Governor is expected to sign the bill. (Journal Sentinel)
- New York considers bill to ban e-cigarettes. (AP/WSJ)
- The federal Tax and Trade Bureau is considering a proposal to require nutritional information on alcohol labels. (AP)
- Following President Obama's State of the Union, Democrats propose limited tort reform. (The Hill)
Trials, Settlements and Other Ends
- As the Northeast digs out from another storm, you can enjoy "Snowbird Can't Escape The Statute of Limitations She Left Behind" at Drug & Device.
- Federal judge in New York dismisses tobacco medical monitoring case. (Mass Tort Profs)
- "Hot Coffee" premieres at Sundance Film Festival. (Salt Lake Tribune, Pop Tort)
- Philadelphia's state court mass tort program launches a new website, allowing access to global orders. (Legal Intelligencer)
January 27, 2011
Kucinich Suing Over Olive Pit
Per Gawker, Rep. Dennis Kucinich is suing the companies that supply and operate the House of Representatives cafeteria for damages caused by the presence of an olive pit in a wrap he purchased about three years ago.
New Caps in Wisconsin
As mentioned in last week's roundup, Wisconsin's governor on Friday signed sweeping civil litigation changes into law, including a cap on punitive damages, on noneconomic damages in suits against nursing homes, and significant hurdles for punitive damages. Read more from Bloomberg.
State of the Union & Tort Law
In the State of the Union address Tuesday night, President Obama indicated a willingness to work with Republicans in considering medical malpractice reforms to eliminate what he described as "frivolous" suits. You can see some of the various coverage of the reference here, and Law.com has a discussion of the law-specific parts of the address here. Walter Olson questions, I think reasonably, whether the Center for Justice and Democracy, may be a bit too strident in its response ("disgusting").
January 26, 2011
Hylton on Preemption
Keith Hylton (Boston University) has posted to SSRN An Economic Perspective on Preemption. The abstract provides:
This paper has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to consider its implications for broader controversies about preemption.
January 25, 2011
Masters of Tort Law Series
As we mentioned back in November, we are introducing a new feature at TortsProf in conjunction with the AALS Torts & Compensation Section, chaired by Mike Rustad (Suffolk). Many of you may be familiar with Mitch Albom's popular book, Tuesdays With Morrie. In the book, Albom rediscovered his former college professor and mentor Morrie Schwartz. Albom visited Schwartz in his study every Tuesday for the rest of Schwartz's life. The book captures the wit and wisdom of these visits.
Beginning next week, we invite you to join us for the "Tuesdays With...." series, featuring conversations with senior Torts professors who have been nominated as "Masters of Tort Law."
January 24, 2011
Healthcare Law Briefing Schedule
If you are following the challenges to the Patient Protection and Affordable Care Act (as I am for the upcoming symposium here in Charleston on Friday), the Fourth Circuit has set the briefing schedule in Sebelius v. Virginia. (The other Virginia case, Liberty University v. Geithner, is already moving forward in the Fourth Circuit; Liberty University's opening brief was filed last week).
More details from SCOTUS Blog.