Friday, February 18, 2011
Sorry for the break last week, but we're back. And I'm off to run the Austin Half Marathon on Sunday. Think good thoughts!
- Suit brought against Disney for burn from nacho cheese. (TortsProf)
- $42M verdict against fen-phen lawyers, accused of fraud, vacated. (Courier Journal)
Reform, Legislation, Policy
- Arizona finds a way to go after undocumented people and punitive damages simultaneously -- denying the former the opportunity to recover the latter. (East Valley Tribune)
- A more traditional punitives cap proceeds in South Carolina. (Claims Journal)
- Drug & Device Law Blog thinks about compliance presumptions. (Drug & Device Law Blog; see also my post at Point of Law five years ago)
- Walter Olson's book, critical of law schools' role in many legal developments, is out, and he's doing a bunch of readings. (Overlawyered)
Trials, Settlements and Other Ends
- Merck takes 3-1 lead in Fosamax trials. (WSJ Law Blog
- My friend David Robertson, who has provided invaluable help and advice in my teaching career, was featured in our Torts Masters series this week. (TortsProf)
Thursday, February 17, 2011
The South Carolina House of Representatives overwhelmingly voted to cap punitive damages at three times compensatory damages, with a maximum award of $350,000. The legislation also restricts the state attorney general's abillity to use outside counsel, and the fees allowed for such counsel. Similar legislation is expected to be picked up by the Senate shortly.
The bill is available here, and includes various exceptions to the punitives cap.
Wednesday, February 16, 2011
New York Law Journal has an interesting article by Andrew S. Kaufam and Betsy D. Baydala, both of Kaufman Borgeest & Ryan in NYC. The article analyzes the viability of a claim for intentional infliction of emotional distress based on allegations of cyberbullying.
Thanks to Lisa Smith-Butler for the link.
Tuesday, February 15, 2011
David W. Robertson is the W. Page Keeton Chair in Tort Law and University Distinguished Professor at the University of Texas at Austin. He is the author of the classic Admiralty and Federalism (Foundation, 1970), co-author of Cases and Materials on Torts (West, 2nd ed., 1998), and co-author of The Maritime Law of the United States (Carolina 2000) and Cases and Materials on Torts (West, 3d ed., 2004). His numerous articles have appeared in Texas Law Review, Michigan Law Review, Modern Law Review, Law Quarterly Review, Tulane Law Review and elsewhere. He is a member of the American Law Institute and serves on the Advising Board of Editors of the Journal of Maritime Law and Commerce.
I recently was able to ask Professor Robertson some questions about his torts experience:
Q: Why did you apply to law school? Where did you go to law school, and why did you select that school?
Late summer, 1958, headed into my 4th year as an undergrad. at LSU, I discover that I have ample credit hours but cannot muster a major (close in English, French, history, philosophy but not close enough). BUT: A year in law school will give me a BA with a major in pre-law (and of course w/option to continue law school if 1st year survived [about half flunked out in those years]). So off to LSU law I went.
Q: Who was your Torts professor, and what was your experience as a Tort student?
Wex Smathers Malone, a giant. A lovely teacher. A true character.
Because I had to work in the afternoons to survive [and LSU Law had scheduled 1st-year classes to discourage or prohibit 1st-year students from working] I had to seek special permission to take a shortened load in 1st year and thus had torts (a year-long course) in 2d. It seemed a little simple to me--what a truly stupid notion that was!--compared to the 2d-year subjects, and at that time I didn't fall in love w/the subject matter.
Q: How did you become interested in teaching law and Torts in particular?
After graduation from law school in 1961, I took a job with the U.S. Senate. As that was reaching its natural (for me anyway) endpoint, I was juggling law firm possibilities and scholarship offers for grad law school at Yale and Harvard--really just trying to find a way to avoid a real job--when Charles Reynard, LSU prof, died. The LSU law faculty (as I rememer it) had suddenly shrunk from 13 to 12, and Dean Paul M. Hebert called me and asked me to come and fill in (as an Instructor) for a year or two. I was hoping to teach contracts and criminal law. Instead I was assigned History of the Common Law (in Louisiana, a foreign subject), Trusts (which Louisiana law did not recognize until years later), Moot Court (I had never been to court) and Torts. It wasn't hard to fall in love with Torts in that context.
Q: When did you begin teaching Torts, and how has the course and the Torts professoriate changed since then?
1962. At most self-described "elite" schools, torts has shrunk from a year-long 6 to a year-long 5 to a semester 4 to a semester 3. They call this tort reform. Re professoriate: "Elite" academies are filled with people who want to use tort law as a basis for social science experiments and theories but who don't care to learn or teach how to DO tort law. [In the middle of my academic career, I resigned to go into private practice and so have done some tort law and liked it pretty well.]
Q: What do you see as your major accomplishments as a Torts scholar (and teacher)?
Question seems premature to me, because I'm still teaching and confidently expecting a major accomplishment at any moment. Meanwhile, I'll cite the forthcoming 4th edition of a very good (how to do tort law) casebook, a series of articles on factual causation, and maybe 5000 or more alums who generously say I taught them something useful.
Monday, February 14, 2011
Each fall, I begin my Torts course with Fitch v. Valentine, a recent case in which a divided Mississippi Supreme Court narrowly granted a reprieve to the endangered “heartbalm tort” of alienation of affections. In making the arguments for and against resigning the tort to the ash heap of history, the various opinions in Fitch provide a nice introduction to the basic functions that we assign to tort law.
I use this post to share a more obscure but equally interesting artifact that also relates to the heartbalm torts, which include not only alienation of affections but also breach of promise, criminal conversation, and seduction. Back in 1935, in the first wave of anti-heartbalm fervor, the Association of the Bar of the City of New York prepared this report on the heartbalm torts. Download 1935 ABCNY Report As discussed below, the report offers a reminder that while the more recent push against the heartbalm causes of action has focused upon the supposedly archaic nature of these claims, the motives behind the initial anti-heartbalm movement were somewhat different.
The report, drafted by the ABCNY’s Committee on Law Reform, is just five pages long. The first page and a half is devoted to a turgid recitation of Roman and German law on claims for breach of promise to marry. The report hits its rhetorical stride only when it turns to the cause of action for alienation of affections. To the report’s drafters, these suits were, “as a general proposition, resorted to by unscrupulous men and women to extort money from defendants unwilling to go through a trial of the issues for fear of publicity,” and “the basis of the old so-called ‘badger game.’ ” (Seven decades later, the “badger game” would inspire the Clive Owen-Jennifer Aniston movie “Derailed.”)
The ABCNY report directs even stronger criticism toward claims for criminal conversation: “There would seem to be little support within the modern concepts of morality for the existence of such a cause of action. That either spouse should be entitled to receive a payment in money because of the other’s infidelity would seem to put the marriage relation on a plane so sordid as to be comparable almost to the White Slave Traffic.” The report also harrumphs, “It is inconceivable that either a man or a woman of finer sensibilities or having any right to claim adherence to the higher ideals of human conduct should ever resort to such a suit.”
These passages sound like they emanated from an institution saturated with white-shoe Wall Street attorneys, because they did. In their hour of need, the embattled heartbalm torts found few friends among the legal elite, who considered the prosecution of these claims incompatible with the image they sought to project for their profession. Bringing a heartbalm case seemed just one step above (or maybe even below) ambulance chasing. (Which, it might be added, the ABCNY also was campaigning against at around the same time.) John G. Jackson, the chairman of the ABCNY committee that produced the report, had helmed the American Bar Association’s Committee on Unauthorized Practice of the Law; he had experience policing the ethical boundaries of the profession. Perhaps Jackson perceived, in the prevailing anti-heartbalm mood of the time, an opportunity to pare back a somewhat squalid area of practice. And in any event, on balance the ABCNY was serving its clients’ interests by advocating reform; while very few Association members ever would bring a heartbalm lawsuit, a few more might expect to defend such a case.
In recommending the abolition or limitation of the heartbalm torts, the lawyers of the ABCNY found common cause with elites in other segments of society. Most notably, the small but growing cohort of female state legislators of the time sensed that heartbalm suits, which were typically but not exclusively brought by women, cast their gender in a passive light inconsistent with future gains in the statehouse. In the words of Indiana legislator Roberta West Nicholson, these representatives didn’t “want to see inferior women pull down our sex” by filing, and then prevailing upon, well-publicized heartbalm suits.
To conclude, the ABCNY report suggests that while the initial campaign against the heartbalm torts may have mostly been about gender, it was also about class. In joining forces against these causes of action, the ABCNY and legislators such as Nicholson were unlikely bedfellows. To each group, however, the heartbalm torts represented both a cause for concern—after all, outsiders might lump these elites together with the scoundrel (or merely hapless) plaintiffs and disreputable attorneys who were bringing these suits—and an opportunity to promote an aspirational agenda reflecting what their gender or profession should be, and could become.
--Kyle Graham, Assistant Professor of Law, Santa Clara Law