October 28, 2011
Vote for TortsProf
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.
October 27, 2011
Torts at AALS
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)
October 25, 2011
Galligan & Bush on the OPA and Preemption
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.
Virginia Product Liability Blog
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.
October 24, 2011
First Circuit Reverses Dismissal of Data Breach Case
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.