February 11, 2011
Monday's Guest Blogger: Kyle Graham
Kyle Graham is Assistant Professor of Law at Santa Clara Law. Prior to joining the Santa Clara Law faculty in 2009, he worked as deputy district attorney in Mono County, California. Other previous appointments include working as a staff attorney for Associate Justice Carlos Moreno of the California Supreme Court and working as an associate with the law firm of Gibson, Dunn & Crutcher LLP. He also served as a law clerk for the United States District Judge William Alsup. Professor Graham received his B.A. from Stanford and his J.D. from Yale. His most-recent publication is "Why Torts Die" in the Florida State University Law Review.
Professor Graham's timely Valentine's Day topic will be "The Heartbalm Torts and the Legal Elite, Circa 1935."
February 10, 2011
Hot Nacho Suit Against Disney
In March 2010, a California family visited Walt Disney World in Orlando, Florida, with their four-year-old son Isaiah. While there, they bought some nachos as a snack. Those nachos "were spilled" on Isaiah, who suffered burns.
They've now sued Disney in a suit that might -- sort of -- echo the famous/infamous Liebeck coffee case, though there are some obvious differences (age of the plaintiff, the particular way the injury occurred, etc.).
According to at least one vendor's website, nacho cheese is held from 140-155 degrees.
New Blog on Law & Bioscience
Nita A. Farahany (Vanderbilt) recently started a new blog of possible interest. Her description:
The Law and Biosciences Daily Digest provides relevant summaries of legal opinions (civil and criminal) in which cognitive neuroscience or behavioral genetics evidence has been introduced. While there has been growing interest in the intersection of law & cognitive neuroscience or behavioral genetics, until now few are tracking or aware of the developing case law in this area. When individuals do become aware of a case, most assume it’s an interesting anomaly. I’ve been tracking these cases daily since 2004, and with the recent uptick in the past two years, at least 2-3 opinions per day are published in which cognitive neuroscience or behavioral genetics evidence has been used. The Daily Digest provides a daily summary of those opinions.
I've had a student or two write papers vaguely related to the area in the last few years, but, as Prof. Farahany suggests, I had assumed most of the opinions were anomalous.
Accleration Problems Not Due to Electronics, Per Panel
Confirming what has been suggested by some observers for quite a while, federal highway safety officials concluded that the unintended acceleration cases were not caused by any electronic flaws in Toyota vehicles, instead suggesting driver error (and, in some cases, sticky pedals and flawed floormats).
Lawsuit Over Death on Study Abroad Program
My local paper has been a more consistent source of material than usual lately, this week discussing (may be behind a paywall soon) a lawsuit brought against a local entity, the Center for International Study, by a family whose son died on a program in Australia.
Matthew Ray Attwood, 20, of Exeter, N.H., bled to death Feb. 11, 2008, at La Trobe University, about 35 miles north of Melbourne. According to the lawsuit, he was found by a painting crew in a large puddle of blood next to a shattered plate glass window.
Attwood's parents are seeking $2 million or more in damages, and are represented by Boston attorney Michael Lambert.
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"If Matthew had been found within a reasonable amount of time after he suffered his injury, the bleeding from the lacerated brachial artery could have been stopped and his life would have been saved," the lawsuit states.
An autopsy measured Attwood's blood-alcohol content at 0.13 at his time of death, according to the lawsuit.
February 9, 2011
Stapleton on Causation
Jane Stapleton (ANU/Texas) has posted to SSRN Factual Causation. The abstract provides:
The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. This area of law has recently undergone an extensive restatement by the American Law Institute and been the subject of legislative attention in all Australian states. In the light of these developments this Essay, in a Special Issue of the Federal Law Review in Honour of Professor Leslie Zines on his 80th Birthday, sketches some essential issues relevant to factual causation which apply not only to the tort of negligence but throughout the law. Inter alia, the Essay argues: that the High Court of Australia’s common sense test of causation is an empty slogan, neither a test nor anything to do with common sense; that Australian courts should cease referring to the ‘scope of the duty’; that a factor should be recognized as a factual cause if it contributes in any way to the existence of the phenomenon in issue even if it is neither a but-for nor a sufficient factor for the existence of the phenomenon in issue; and that aspects of the recent Australian civil liability legislation can and should be ignored.
February 8, 2011
Tuesdays with Torts Masters: Robert Rabin
An expert on torts and legislative compensation schemes, Robert Rabin is highly regarded for his extensive knowledge of the history and institutional dynamics of accident law. He is a prolific author on issues relating to the functions of the tort system and alternative regulatory schemes and is the co-editor of a classic casebook on tort law.
Professor Rabin is currently an advisor to the ongoing American Law Institute Restatement of Torts Third project and has been the program director for the Robert Wood Johnson Foundation Program on Tobacco Policy Research and Evaluation, as well as a reporter for the American Law Institute Project on Compensation and Liability for Product and Process Injuries and the American Bar Association Action Commission to Improve the Tort Liability System. He has been a member of the Stanford Law School faculty since 1970.
I recently had the chance to ask some questions about his background.
1. Why did you apply to law school? Where did you go to law school, and why did you select that school?
As I came near finishing my undergrad education, I wasn’t sure what to do next. A good friend who was planning to attend law school in the fall suggested that I take the LSAT, apply to law schools, and consider it as an option. Sounded reasonable. Subsequently, I was awarded a full tuition scholarship and so decided it was worth trying at least for a year. For a variety of personal reasons I wanted to stay in Chicago (after attending Northwestern Univ. undergrad), and went on to get my degree at Northwestern Univ. School of Law.
2. Who was your Torts professor, and what was your experience as a Torts student?
My torts professor was a visitor at Northwestern, Walter Probert, from U. of Florida. There was nothing singular about my experience in Torts; my favorite courses as a 1L were Contracts and Civil Procedure, in both of which I was especially intellectually stimulated by the classroom instruction.
3. How did you become interested in teaching law and Torts in particular?
My interest in teaching law was a carryover from the best of the courses I took: the dynamic give-and-take in the classroom was intellectually stimulating in those classes. The idea of doing research and writing on whatever topics seemed of interest to me also was very attractive. I wandered into torts teaching in the same way I wandered into law school: The dean at Wisconsin (my first academic appointment) told me that they needed a torts teacher and I was it. The course was of immediate interest to me—although my early research and writing was primarily in the administrative law area. (I had gone on to do a doctorate in political science after finishing law school.)
4. When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?
Torts was the first course I taught, back in 1966. At first, I just followed the lead of the casebook (Gregory&Kalven, a very fine casebook); I had no overarching conception of my own. As time passed, and I moved from Wisconsin to Stanford, I adopted my new colleague Marc Franklin’s casebook, which was roughly organized around the concept of tort and alternative approaches to addressing the social problem of accidental harm (with virtually no attention to intentional torts). I found this focus appealing, and over the years my approach to this framework of accident law—both in teaching and research—has become more interdisciplinary, and it has broadened to encompass both no-fault alternatives and regulation alternatives to dealing with health and safety-related injuries.
5. What do you see as your major accomplishments as a scholar and teacher?
As a teacher, I’ve tried to convey in the classroom my own intellectual and policy-related interests in torts, and more broadly, the regulation of health and safety risks. On this score, I feel a sense of satisfaction in the feedback that I’ve received from students over the years.
I’ve pursued the same themes in my scholarship. It would take a long essay to develop the particulars about what pathways I’ve taken and which of my articles and books seem to me most satisfying. Without meaning to seem self-effacing, I’d prefer to leave to others the assessment of which works of mine seem major accomplishments.
February 7, 2011
Brickman's "Lawyer Barons"
Lawyer Barons: What Their Contingency Fees Really Cost America by Professor Lester Brickman (Cardozo) has hit the shelves. From the publisher:
This book is a broad and deep inquiry into how contingency fees distort our civil justice system, influence our political system and endanger democratic governance. While the public senses that lawyers manipulate the justice system to serve their own ends, few are aware of the high costs that come with contingency fees. This book sets out to change that, providing a window into the seamy underworld of contingency fees that the bar and the courts not only tolerate but even protect and nurture. Contrary to a broad academic consensus, the book argues that the financial incentives for lawyers to litigate are so inordinately high that they perversely impact our civil justice system and impose other unconscionable costs. It thus presents the intellectual architecture that underpins all tort reform efforts.
Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit recently wrote a review of the book for the New York Law Journal (subscription only). Judge Jacobs wrote:
There is no shortage of books and articles deploring defects in lawyer ethics. The novelty of "Lawyer Barons" is that it focuses on the contingency fee as a business model. Mr. Brickman argues that the prevailing business model is based on a systematic conflict of interest on the part of lawyers who collect their large fraction on claims that have no appreciable risk; who collect fees on the portion of recoveries that were available at the outset, without counsel or litigation; who conduct class actions that serve no one but lawyers; who spread panic over questionable mass torts; and who corrupt medicine and science itself. . . . The book amounts to a call for remedial action by honest members of our professiona, and is convincing on the level that the professional institutions, including bar associations, courts, and law schools, should look into these claims and consider whether remedial action is indicated and feasible.