TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, February 3, 2011

Personal Injury Roundup No. 93 (2/4/11)


  • NY:  Court affirms $3M for 11 months of pre-death pain and suffering in med mal case.  (Hochfelder/New York Injury Cases Blog)
  • Virginia AG Cuccinelli will request expedited review of the health care constitutionality dispute straight to the USSC.  (VLW Blog)

Reform, Legislation, Policy

  • Ted Frank is skeptical of Obama's intent on med mal reform.  (Washington Examiner)
  • Democrats cool to Obama's willingness to reform med mal.  (
  • MT:  A bill to "freeze and codify statutes" on landowner liability to trespassers was discussed by the House Judiciary Committee.  Mark Behrens of ATRA testified for the bill, calling it needed in light of American Law Institute recommendations.  The Committee took no action.  (The Bismarck Tribune)

Trials, Settlements and Other Ends

  • NY:  $3M jury verdict against doctor for injuries a girl suffered in childbirth nearly 18 years ago.  (Glen Falls Post-Star)
  • A federal judge has ruled that Ken Feinberg can't claim neutrality or tell claimants they don't need lawyers in resolving BP oil spill claims.  (ABA Journal


  • Ron Miller on Frivolous Malpractice Suits (The Maryland Injury Lawyer Blog)
  • Victor Schwartz is interviewed at TortsProf.
  • Alberto Bernabe on NY's assumption of risk golf case.  (Torts)
  • John Culhane on a potential class action against the NFL for brain injuries.  (Slate)


February 3, 2011 in Roundup | Permalink | Comments (0) | TrackBack (0)

Historians as Experts: A Plea for Help

I've written, both here and in more formal settings, a bit about historians serving as expert witnesses in litigation -- mostly in the setting of toxic torts.  This year, I'm starting a long-term project examining the broader role of historians in all sorts of litigation settings.  The first step will be an attempt to catalog in wiki form -- as exhaustively as possible -- all of the instances of historians serving as expert witnesses. 

The wiki will not immediately be public; I want to get it started and figure out the standardization before opening it up to others.  But it will be made public sometime relatively early in the process. I expect it to include both information about experts (and the litigation in which they have participated) and original documents -- expert reports, briefing, judicial orders and opinions, and so on.

And so, I turn to you, our readers.  If you have anything relating to historians serving in litigation settings -- in any context -- please send it to me.  I'm looking broadly, so if it's someone who is opining in the context of history even though the expert's field is formally something else, send it.  I figure more is better than less at this point.

My e-mail is wchilds AT law DOT wnec DOT edu.  I thank you in advance for your help.


February 3, 2011 in Experts & Science | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 2, 2011

Top 10 Recent Torts & Products Liability SSRN Downloads

RECENT HITS (for all papers announced in the last 60 days)
TOP 10 Papers for Journal of Torts & Products Liability Law eJournal

December 4, 2010 to February 2, 2011

Rank Downloads Paper Title
1 417 Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey
Symeon C. Symeonides,
Willamette University - College of Law,
Date posted to database: January 11, 2011
Last Revised: January 25, 2011
2 177 Federal Preemption of State Law: The Current State of Play
Daniel A. Farber,
University of California, Berkeley - School of Law,
Date posted to database: January 16, 2011
Last Revised: January 16, 2011
3 107 Richard Epstein and the Cold War in Torts
Benjamin C. Zipursky,
Fordham University - School of Law,
Date posted to database: December 5, 2010
Last Revised: December 5, 2010
4 79 Class Certification’s Preclusive Effects
Kevin M. Clermont,
Cornell University - School of Law,
Date posted to database: November 27, 2010
Last Revised: January 17, 2011
5 64 Unmasking the Powerful Force that Has Mis-Shaped the American Civil Justice System
Lester Brickman,
Benjamin N. Cardozo School of Law,
Date posted to database: January 11, 2011
Last Revised: January 13, 2011
6 63 Some Thoughts on Libel Tourism
Andrew R. Klein,
Indiana University School of Law,
Date posted to database: January 1, 2011
Last Revised: January 1, 2011
7 62 Reframing Libel: Taking (All) Rights Seriously and Where It Leads
Alastair Mullis, Andrew Scott,
Unaffiliated Authors - affiliation not provided to SSRN, London School of Economics & Political Science (LSE) - Department of Law,
Date posted to database: December 14, 2010
Last Revised: December 16, 2010
8 57 The Shifting Terrain of Risk and Uncertainty on the Liability Insurance Field
Tom Baker,
University of Pennsylvania Law School,
Date posted to database: December 8, 2010
Last Revised: January 2, 2011
9 53 Remedies, Rights, and Properties
Hanoch Dagan,
Tel Aviv University - Buchmann Faculty of Law,
Date posted to database: December 2, 2010
Last Revised: December 2, 2010
10 51 Markets, Tort Law, and Regulation to Achieve Safety
Paul H. Rubin,
Emory University - Department of Economics,
Date posted to database: December 19, 2010
Last Revised: January 6, 2011


February 2, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 1, 2011

Tuesdays with Torts Masters: Victor Schwartz

Schwar_v_15 Victor E. Schwartz  chairs the Public Policy Group at Shook, Hardy & Bacon.   He co-authors the nation’s leading torts casebook, Prosser, Wade & Schwartz’s Torts (11th ed. 2005), and authors Comparative Negligence, the principal text on the subject. Victor is former dean of the University of Cincinnati College of Law, and currently serves on its Board of Visitors. During his academic career, Victor litigated cases on behalf of plaintiffs, and secured the first punitive damages award in the Midwest against a manufacturer of a defective product.   Today, Victor serves as general counsel to the American Tort Reform Association, and co-chairs the American Legislative Exchange Council’s (ALEC) Civil Justice Task Force. He was a recipient of The Jeffersonian Award, ALEC’s highest honor bestowed on persons in the private sector.   Victor served on the advisory committees of all three of the American Law Institute’s Restatement (Third) of Torts projects: Products Liability, Apportionment of Liability, and General Principles.   Victor chaired the federal government’s Inter-Agency Task Force on Product Liability and the Department of Commerce’s Inter-Agency Task Force on Insurance and Accident Compensation.  He was awarded the Secretary of Commerce’s Medal of Excellence for his service.

Here's my conversation with Victor: 

Q:  Why did you apply to law school?  Where did you go to law school, and why did you select that school?

 When I was about 11 years old, I watched the Army-McCarthy hearings on television.  I found this “show” riveting.  I saw all of these lawyers involved and decided if and when I grow up, I want to do something like that and be part of it.  I went to Columbia Law School and chose it because I thought a degree from that school would provide a solid calling card for a good job.  No one in my family had been a lawyer.  My dad died with I was ten.  I realized that I had to make my own entrance into the law based on my own merits.

 Q:  Who was your Torts professor, and what was your experience as a Tort student?

I had two torts professors, Willis Reese and Alfred Hill.  Willis Reese made the law of torts into an organized system.  He was funny and made class a memorable experience.  Professor Hill saw tort law as pure vapor.  There were no “real” rules.  Tort law was like biting into cotton candy.  It was there, but it really was not.  He had a drier sense of humor than Professor Reese, but he was a great educator.  Each professor had a totally different vision of the subject.  In sum, my experience as a torts student was an outstanding one and helped me as a torts professor.

Q:  How did you become interested in teaching law and Torts in particular?

 I became interested in teaching law while serving as a law clerk to the Honorable Charles M. Metzner.  Judge Metzner was a respected Federal Judge in the Southern District of New York.  Part of my job was to read briefs on both sides in a case and draft opinions of law.  The goal was finding a fair and just result, not representing any particular party.  Through the course of the two year clerkship, I looked for a vehicle where I could continue to search for the right answer and teaching seemed to be the best vehicle to achieve that goal.  My torts professors inspired me to learn more about the subject, but what I liked about it most was that it was organic, always changing and not wedded to interpretation of statutes.

Q:  When did you begin teaching Torts, and how has the course and the Torts professoriate changed since then?

I began teaching torts in 1967 at the young age of 26.  Most professors at the time focused on the substantive law of torts, the reasons behind the rules, whether the rules were sound in their contents and whether they should be changed.  There was a beginning of a focus on alternatives to the tort system such as no-fault compensation in the area of automobile accidents.  In 2011, a significant number of torts professors believe that the “students can learn the rules on their own” and the focus of those professors is on law and economics and broader public policy considerations.

Q:  What do you see as your major accomplishments as a Torts scholar (and former teacher)?

With the invaluable help and guidance of the late Dean John W. Wade, we were able to preserve and expand the use of the torts case book founded by William L. Prosser.  Often when a great professor dies who is author of a case book, the case book has a rather brief shelf life.  John and I began working together on the 6th edition, which was published in 1976.  My new co-authors Professor Kathy Kelly and Dean David Partlet are a terrific team.  We finished the 12 edition last May and it was published last year 2010.   

A challenge has been to work in the so-called real world of the practice of law as a former torts scholar.  I utilized what I have learned as a scholar in a practical way.  I had the wise guidance of the lawyers in my practice group, other lawyers in the firm, and staff.  I have been able to blend scholarship with practical results that some have found worthwhile.  We have been part of the enactment of almost 200 state legislative initiatives, bills that have passed the Congress of the U.S. and have been signed into law, amicus briefs that have affected the outcome of cases in the Supreme Court of the United States and in state Supreme Courts with the help of colleagues, I have continued to write law review articles.  All has been a lot of fun. It has been a privilege to be part of two different worlds, academia and practice.


February 1, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, January 31, 2011

Is the Affordable Care Act Unconstitutional?

At Friday's Healthcare Law in the Federal Courts symposium organized by the Federal Courts Law Review at the Charleston School of Law, Professor James Ely (Vanderbilt) and Professor Brian Galle (Boston College) debated whether the mandate that each individual must purchase health insurance or face a $695 penalty was constitutional.

Ely Professor Ely made two arguments.  First, he argued that the mandate exceeded Congress's authority under the Commerce Clause because the failure to buy health insurance was not economic activity.  Second, Professor Ely argued that the mandate did not constitute a "tax" under the Taxing Clause because the legislation does not use the word tax, nor was the provision intended to be revenue raising.  

Galle In response, Professor Galle pointed out that health care amount to 1/7 of the economy.   Professor Galle further presented points from his paper The Taxing Power, the Affordable Care Act, and the Limits of Constitutional Compromise, 121 Yale L.J. Online __ (2011). The abstract provides:

This brief essay responds to recent court decisions and scholarly commentary questioning the constitutionality of the Affordable Care Act. Criticism has focused in particular on the provision imposing a $695 penalty on those who fail to purchase qualifying health insurance.

I argue that, contrary to the courts and the commentators, this provision is valid as an exercise of Congress' power to lay and collect taxes. Although much has been made of Congress' use of the word "penalty" rather than tax, the Supreme Court has held since 1866 that Congress can invoke the tax power in litigation without using that term in the challenged statute. I also reject any normative arguments for rejecting that venerable rule as unpersuasive. In any event, the relevant section refers to the penalty it imposes as a "tax" 48 times.

More substantively, I argue that efforts to claim that the section would fall afoul of constitutional limits on "direct" taxes over-read those sections of the Constitution. Limits on direct taxes were the product of a compromise over slavery, and have no other obvious deep meaning. While we must honor the bargain that resulted in their inclusion in the Constitution, honor can be paid with a narrow reading that allows Congress, not courts, to make tax policy.

The Fourth Circuit has scheduled oral argument in the conflicting Virginia cases for the second week of May.


January 31, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)