February 25, 2011
Goldberg on American Tort Law as a Model for the World
John Goldberg (Harvard) has posted to SSRN Tort in Three Dimensions. The piece was part of a Pepperdine symposium last spring, and the abstract provides:
Should our tort law serve as a model for other nations? The answer depends in part on what one understands it to be. Since the mid-Twentieth Century, progressives have favored 'thin' accounts that treat tort law as having but two dimensions: forum and function. Tort, they say, provides a general forum for grievances and, by doing so, performs certain governmental functions, such as deterrence of anti-social conduct, compensation of injury victims, and the bringing to light of abuses of power.
Progressives have favored thin accounts mainly because those accounts emphasize the extent to which tort law enables courts to achieve social goods. Unfortunately, the very thinness of progressive accounts has left tort law highly vulnerable to the conservative criticism that tort is an irrational and illegitimate mode of regulation. As a result, tort law today tends to comes off as an unstable, unprincipled combination of certain plaintiff-friendly features that are said to serve salutary regulatory objectives and certain defendant-friendly features that are said to be necessary to ward off undesirable regulation.
In fact, tort law’s "bipolar" appearance is an unfortunate byproduct of the inadequacies of two-dimensional accounts, whether progressive or conservative. Simply put, tort will inevitably appear arbitrary and mysterious until one appreciates its third dimension – its fill, or substance. Seen in "3D," tort law emerges as a relatively coherent body of law, yet still one that progressives have reason to embrace. Indeed, with tort law in full view, one might even believe that it can profitably be emulated elsewhere.
February 24, 2011
As posted Tuesday, the Supreme Court ruled that vaccine claims are preempted (other than manufacturing claims). As you'd expect, some commentary has been posted:
- The Wall Street Journal has a positive editorial, and their law blog a summary.
- CNN has a useful overview.
- The Drug & Device Law Blog provides a set of notes.
- The Coalition for Vaccine Safety dislikes it (not too surprising; the press release includes a vaccine plaintiffs' lawyer as a contact; the other is the director of the Lawyering LLM at NYU).
No Preemption in Seat Belt Case
In an interesting counterpoint to the vaccine case, the Supreme Court also ruled this week [PDF] that a case against Mazda alleging defective seatbelts was not preempted by compliance with regulations about restraints.
February 23, 2011
Bruesewitz v. Wyeth
In a 6-2 decision, the United States Supreme Court upheld preemption: “We hold that the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects.” Justice Antonin Scalia wrote the majority opinion. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented, stating the high court was imposing “its own bare policy preference over the considered judgment of Congress.” Justice Elena Kagan recused herself. Coverage from The Christian Science Monitor is here; the opinion (pdf) is here; TortsProf coverage of last month's AALS panel on vaccines is here.
February 22, 2011
Tuesdays with Torts Masters: Jeffrey O'Connell
Jeffrey O'Connell, the Samuel H. McCoy II Professor of Law at Virginia, is co-author of the principal work that proposed no-fault insurance. Most recently O'Connell has designed an "early offers" plan where businesses facing personal injury lawsuits could promptly pay injured parties for out-of-pocket medical expenses and lost wages.
After O'Connell graduated from Harvard Law School, he was a trial lawyer in Boston with the firm of Hale & Dorr. He came to Virginia in 1980 after 16 years at the University of Illinois. He also has taught at the University of Iowa and has been a visiting professor at Northwestern, the University of Michigan, Southern Methodist University, the University of Texas at Austin, the University of Washington, and Oxford and Cambridge universities in England. He was the recipient of Guggenheim fellowships in 1973 and 1979. In 1989 he was the Thomas Jefferson Visiting Fellow at Downing College, Cambridge University and, in 1991, the John Marshall Harlan Visiting Distinguished Professor at New York Law School. In 1992 he received the Robert B. McKay Award for Tort and Insurance Scholarship from the American Bar Association.
Jeffrey was my Torts professor and the reason, in several ways, that I'm in the academy. I recently had the chance to ask him some questions about his background.
- Why did you apply to law school? Where did you go to law school, and why did you select that school?
I applied to law school out of interest in both legal and political matters. I went to Harvard because it was near home and I intended to practice in Massachusetts.
2. Who was your Torts professor, and what was your experience as a Torts student?
My Torts professor was Calvert McGruder, a sitting federal judge on the First Circuit, who taught part-time. It was not a very enlightening course.
3. How did you become interested in teaching law and Torts in particular?
I became interested in teaching Torts rather indirectly. The professor teaching it for years was retiring and, although I did not consider it to be my major research activity, I thought it would be a good first- year course to teach. I quickly became aware, through the writings of Fleming James, of what a disaster tort law was and how much reform was needed. As to my becoming interested in teaching law in the first place, I taught speech at Tufts University as a means of putting myself through law
school and found that I much enjoyed teaching and the law.
4. When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?
I began teaching torts in about 1961. Unfortunately, except for a few scholars, most tort books have not challenged the outmoded criteria of negligence in a modern, mechanized world. For the typical personal injury case, tort law has progressed little if at all.
5. What do you see as your major accomplishments as a scholar and teacher?
My major accomplishment as a teacher and a scholar arose early in my career when I joined with Prof. Robert Keeton of the Harvard Law school in proposing what is generally credited as the leading cause of the adoption of no-fault insurance. And I'm still a fan despite all the tribulations that a major legal reform faces.
February 21, 2011
New Congressional Civil Justice Caucus Pushes Legal Reform Issues
From the Blog of the Legal Times:
Conservative lawmakers are organizing in a more formal way to promote an array of changes to the civil justice system, including proposals related to medical malpractice reform, venue and federal pleading standards.
Six members of the U.S. House of Representatives said today they’re starting a Congressional Civil Justice Caucus. Like other alliances formed on specific issues, the caucus won’t have specific authority, but its members hope it will be a vehicle for organizing and debate.
George Mason also has formed the "Congressional Civil Justice Caucus Academy," which is "an independent, outside entity that shares the goals of the Caucus and is organized under the leadership of the Law & Economics Center at George Mason University School of Law."
Thanks to Lisa Smith-Butler for the story.