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.