Friday, November 18, 2011
The Indiana Law Journal will publish, in its volume 88, the articles written in conjunction with the AALS Torts & Compensation Section panel ("Twenty-First Century Tort Theories: A New Audit of Civil Recourse Theory") at the 2012 Annual Meeting in D.C.
Thursday, November 17, 2011
Barbara Fried (Stanford) has posted to SSRN The Limits of a Nonconsequentialist Approach to Torts. The abstract provides:
The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for ‘wrongful’ acts reflect corrective justice rather than welfarist norms. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful acts that pose some risk of harm to others (a category that describes almost all noncriminal conduct). This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives.
Wednesday, November 16, 2011
Nora Freeman Engstrom (Stanford) has posted to SSRN Sunlight and Settlement Mills. The abstract provides:
Accident compensation, and particularly auto accident compensation, is typically thought to take one of two dichotomous forms: either no-fault or traditional tort. Further, conventional wisdom holds that while pure no-fault may be an option in theory, it is not one in practice. No pure no-fault auto regime has ever been enacted in the United States, and states these days are repealing, rather than enacting, modified no-fault legislation. Yet something peculiar is happening on the ground. Far out of the light of day, high-volume personal injury firms that I call “settlement mills” are quietly achieving many of no-fault’s objectives — speeding recoveries, lowering systemic costs, and delivering relatively standardized sums to an apparently expanded set of clients — while ostensibly operating within traditional tort. What settlement mills are accomplishing, then, is in some respects astonishing — and certainly commendable. Yet, the fact settlement mills’ distinctive operations are out of the light of day and rarely revealed to clients is problematic, raising profound issues of informed consent and highlighting severe information deficiencies in the market for legal services. A well-designed disclosure regime can preserve settlement mills’ substantial benefits, ameliorate their unique costs, and, more broadly, improve the tort system’s operation and address the vexing problem of attorney choice.
Tuesday, November 15, 2011
Monday, November 14, 2011
Interesting analysis of whether a learned intermediary (i.e., the prescribing/treating physician) voids a claim for breach of implied warranty in a medical device products case from the good people at Drug and Device Blog:
In a relatively recent case, Currier v. Stryker Corp., 2011 WL 4898501 (E.D. Cal. Oct. 13, 2011), the court stated, with respect to a claim for implied warranty
Because this is a medical implant case, and the [complaint] alleges that the product was surgically inserted in a hospital, the Court cannot plausibly infer from the [complaint] that Plaintiff relied on anything other than his physician's skill and judgment in selecting the . . . product, nor that any purchase of the product was based on a warranty from the manufacturer to Plaintiff. The Court cannot plausibly infer that there is a relationship between the Defendants and Plaintiff that would allow Plaintiff to state a breach of warranty claim.
Id. at *4. The court seems to be saying that, in a prescription medical product liability case, there can’t be an implied warranty claim unless the plaintiff, as opposed to the prescribing physician, relied on the alleged warranty.
D&D does its usually thorough job of canvassing other states' law to see how widespread this approach may be. Worth a read.
Sunday, November 13, 2011
Here in central Pennsylvania it's all Penn State, all the time. Donald Gilliland of the (Harrisburg) Patriot-News wrote a column about the school's potential legal troubles. I'm quoted mostly for an evidentiary point, but the civil angle is covered by others.
Updated: Alberto Bernabe has links and analysis here.