Tuesday, July 31, 2012
Keith Hylton (Boston University) has posted to SSRN The Law and Economics of Products Liability. The abstract provides:
This paper presents a largely positive analysis of products liability law, in the sense that it aims to predict the incentive effects and the welfare consequences of the law, with close regard to its specific legal tests and the real-world constraints that impinge on these tests. The other major part of this paper is a normative assessment of the parts of products liability law that should be reformed. In contrast with the prevailing law and economics literature suggesting that products liability law reduces social welfare, I argue that the law probably improves social welfare, though it is in need of reform in several respects.
Keith will present the paper at Widener on Friday.
The Tulsa World reports that medical malpractice judgments in Oklahoma are at a ten-year low. Both tort reform proponents and opponents attribute the stats to the impact of OK's 2009 tort reform law, but disagree on whether the result is a good thing.
Monday, July 30, 2012
A recent article by Victor E. Schwartz, Phil Goldberg & Chris E. Appel addresses whether the judiciary is empowered to hear climate change litigation cases: Schwartz, Goldberg & Appel, Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?, 46 Val. U. L. Rev. 369 (2012).
From the authors:
Our article takes on the plaintiffs’ three main arguments: (1) because the Supreme Court only held that the Clean Air Act only barred federal common law claims, the same suits could proceed under state tort law; (2) AEP, where the plaintiffs sought injunctive relief and abatement, does not control cases such as Kivalina that seek monetary damages for alleged climate change harm; and (3) that AEP endorsed the notion that all individuals, including state attorneys general, have standing to bring climate change tort claims against private individuals, including private businesses.
As we explain in the article, in addition to its displacement holding, the Supreme Court went to significant lengths to express the practical and institutional reasons the judiciary should not be empowered to regulate GHG emissions. For example, the unanimous Court cautioned that setting GHG emission limits “is undoubtedly an area ‘within nationallegislative power.’” It stated that the judiciary, given its limited tools, does not have the institutional competence to determine “[t]he appropriate amount of regulation” for sources of carbon dioxide and engage in the “complex balancing” needed to assess the impact such a decision would have on the “energy needs” of the American people. As Justice Ginsburg said in oral argument, it is inappropriate to “set up a district judge . . . as a kind of super EPA.”
In addition to applying AEP to Kivalina and other types of potential climate change tort cases, the article also places the regulation of GHGs within the historical, multi-faceted development of U.S. energy policy and discusses the public policy consequences of permitting the judiciary to regulate GHG emissions through tort litigation.
Friday, July 27, 2012
Mike Rustad (Suffolk) has posted two pieces to SSRN. First, he reviews Marshall Shapo's new book in The Myth of a Value-Free Injury Law: Constitutive Injury Law as a Cultural Battleground. The abstract provides:
This review essay critically examines Marshall Shapo’s new book, An Injury Constitution. Shapo’s new book provides a counter to simplistic arguments that torts is driving our economy into a death spiral by jackpot justice judgments in which undeserving plaintiffs collect enormous awards given by runaway juries. Drawing upon forty-six years of torts scholarship and teaching, Shapo’s pluralistic theory demonstrates how injury law reflects our culture and our inner life, as well as our aspirations to constrain bullies and the reckless acts that endanger society. In its eleven chapters, this book contends that American injury law has evolved as the functional equivalent of a constitution.
Second, from the AALS mid-year meeting last month is Tort Teaching Lessons from the BP Oil Spill. The abstract provides:
This article is drawn from my talk on the topic of "How to Teach Disaster as Part of a Torts Curriculum" at the AALS Workshop on Torts, Environment and Disaster from June 8-10, 2012, in Berkeley. This piece draws upon an informal survey I conducted in the spring of 2012 on how torts teachers employed the BP oil spill disaster (and other disasters) in their basic torts course (to illustrate topics such as the economic loss rule, legal causation, damages, and the impact of safety regulations).
Thursday, July 26, 2012
Tuesday, July 24, 2012
Ken Oliphant (Director, Institute for European Tort Law) & Ernst Karner (University of Vienna) have co-edited a book for the European Centre of Tort and Insurance Law/Institute for European Tort Law. Loss of Housekeeping Capacity from De Gruyter is a comparative study on liability for the loss of housekeeping capacity. The abstract provides:
Ken Feinberg has a new book on the market, "Who Gets What: Fair Compensation after Tragedy and Financial Upheaval." From the publisher:
Agent Orange, the 9/11 Victim Compensation Fund, the Virginia Tech massacre, the 2008 financial crisis, and the Deep Horizon gulf oil spill: each was a disaster in its own right. What they had in common was their aftermath—each required compensation for lives lost, bodies maimed, livelihoods wrecked, economies and ecosystems upended. In each instance, an objective third party had to step up and dole out allocated funds: in each instance, Presidents, Attorneys General, and other public officials have asked Kenneth R. Feinberg to get the job done.
In Who Gets What?, Feinberg reveals the deep thought that must go into each decision, not to mention the most important question that arises after a tragedy: why compensate at all? The result is a remarkably accessible discussion of the practical and philosophical problems of using money as a way to address wrongs and reflect individual worth.
NPR recently interviewed Feinberg about the book and his experiences.
Monday, July 23, 2012
Abnormal Use reports that a New Jersey Superior Court has rejected the "innovator liability" theory accepted by a California court in Conte v. Wyeth. Under this theory, a plaintiff sues a brand-name manufacturer of a drug for injuries allegedly caused by taking the generic version of the drug. To date, Conte is the only decision upholding this theory of liability.
Thursday, July 19, 2012
Back in late February, Widener screened the documentary "Hot Coffee" in honor of Scott Cooper's status as incoming President of PA Justice. As part of the event, Susan Saladoff, the director, appeared via Skype to discuss the movie and answer questions. Victor Schwartz, General Counsel for the American Tort Reform Association, also appeared to discuss the movie and answer questions. As far as I know, this is the first time the two "appeared" together, even if it was via Skype. Ms. Saladoff had already started talking when the recording began; the video is about 45 minutes long. Enjoy!
Wednesday, July 18, 2012
Tuesday, July 17, 2012
An Oregon mother filed suit last week against the singer Justin Bieber for hearing loss allegedly caused by the "frenzy of screams" that Bieber incited in his young fans at his 2010 Portland concert. The complaint alleges that Bieber exacerbated the noise by flying over the crowd in a metal gondola. TMZ has more, including video of the gondola if you are interested.
I'd think this would make a good assumption of the risk hypo in class. I mean concert goers know concerts are loud, right?
Monday, July 16, 2012
Representative J. Brandon Giuda has an op-ed in the Union Leader that explains New Hampshire's early offer law. Rep. Giuda was one of the legislators heavily involved in its negotiation and drafting. The most significant point he makes is a confirmation of a suspicion I have had for some time. If the claimant requests an early offer, rejects that offer, and then fails to receive at least 125% of that offer from the tort system, the claimant will pay the health care provider's attorney's fee for the early offer process only. That will likely be quite cheap. This obviously ameliorates the fear of those who have been arguing that the scheme was too draconian. My hope is that it is a strong enough disincentive to prevent claimants from gaming the system. If claimants believe there is no downside to requesting an early offer, almost all of them will. If many claimants consistently refuse the offers, the health care provider will decide it is a waste of time and will stop making offers, meaning this needed alternative will no longer be available to claimants. There is reason to hope that those who request the offer have already decided they prefer the certainty of economic loss delivered quickly and the offers that are made will be accepted at a substantial rate, but only time will tell.
Friday, July 13, 2012
I posted this earlier, but it was not directly accessible. I tried again yesterday, but the time to upload the file was far too long. I think I have fixed the problem. In order, the speakers are Mike Rustad, John Goldberg, Ben Zipursky, Guido Calabresi, Martha Chamallas, and me.
Wednesday, July 11, 2012
Tuesday, July 10, 2012
Andy Klein, of the Torts & Compensation Systems Section's Executive Committee, passes on the following:
This is a second call for information to be included in the annual newsletter of the AALS section on Torts & Compensation Systems. As noted in a previous message, our newsletter lists: (1) Symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. We are continuing to compile material for this year’s newsletter. If you know of anything that should be included, please forward relevant citations and other information to me at firstname.lastname@example.org. The deadline for inclusion is August 15. The newsletter will be distributed in October.
Professors Michael D. Green (Wake Forest) and William C. Powers Jr. (Texas) have been announced as the 2012 co-winners of the John G. Fleming Memorial Prize for Torts Scholarship. They will jointly deliver the second Fleming Lecture at Berkeley Law on November 5. Professors Green and Powers are being honored for, among other things, their outstanding work as American Law Institute co-reporters for two core portions of the Restatement (Third) of Torts.
Berkeley Law Professor John Fleming was among the world’s leading comparative tort law scholars and long-time editor-in-chief of the American Journal of Comparative Law. When he passed away in 1998, two books were published in his honor and proceeds were used to create the Fleming Prize, which is awarded every other year to a tort law scholar from any country. The Fleming family later endowed the Fleming Lecture. Bob Rabin (Stanford), the previous winner of the prize, delivered the first Fleming Lecture.
Professor Stephen Sugarman (Berkeley) can provide more details about this fall’s Fleming Lecture. Congratulations!
Monday, July 9, 2012
Tony Sebok (Cardozo) has posted two pieces to SSRN. First up is Betting on Tort Suits after the Event: From Champerty to Insurance. The abstract provides:
Litigation financing is investment by a stranger into a lawsuit in which she has no interest other than the investment. The common law prohibitions on champerty and maintenance rendered litigation finance illegal for centuries, but today it is permissible in England, Europe, Australia and many U.S. jurisdictions. This article, which was prepared for a symposium on “Uncertainty in the Law” at DePaul Law School, examines one argument against litigation finance, which is that it allows strangers to impermissibly bet on the outcome of litigation.
The article first briefly reviews the handful of modern courts that have embraced the “Betting Argument” and their reasoning. It next looks at other examples in law where the risk of a party betting on an outcome provided the grounds (whether pretextual or not) for the prohibition of a contract between two persons. Thus, late Nineteenth Century courts were initially inclined to prohibit commodity futures contracts on the ground that they were a form of gambling. Similarly, life and fire insurance was viewed skeptically as a form of gambling until courts developed a moralized concept of “insurable interest.” The concept of the insurable interest provided rationale for courts to uphold insurance when it preserved what the insured already had and to strike down “bets” that allowed strangers to gain as a result of other’s misfortune.
The article concludes by noting that the instability of the tests invoked by earlier courts in the commodities and insurance context suggests that it may be impossible to identify and employ an a priori test for when third party investment in litigation is permissible. However, the article notes that many of the same policy concerns which led courts to accept commodities contracts and insurance contracts should lead courts to allow litigation finance. While the article does not rebut other arguments against litigation finance based on other moral or prudential concerns, it does attempt to quiet concerns based on the Betting Argument.
Second is The U.S. Supreme Court's Theory of Common Law Punitive Damages: An Inauspicious Start. The abstract provides:
This essay, which was written for a book on whether European tort law ought to incorporate punitive damages, asks whether the United States Supreme Court has a “theory” of punitive damages and if so, how well does it explain and justify punitive damages. The essay first reviews the Supreme Court’s various constitutional theories of punitive damages, that is, whether and how state punitive damages awards are limited by the Due Process Clause. It then looks at the Supreme Court’s efforts to articulate a theory of punitive damages under federal common law in Exxon Shipping Co. v. Baker. It concludes that the theory expressed in Exxon Shipping overstated the need for its doctrine to provide defendants (and plaintiffs) with predictable awards and ignored (or rejected without engaging) arguments for punitive damages provided by efficient deterrence theorists in the academy.
Friday, July 6, 2012
Leslie Kendrick (UVa) has posted to SSRN Speech, Intent, and the Chilling Effect. The abstract provides:
In First Amendment doctrine, the “chilling effect” is often invoked as an objection to an otherwise legitimate rule that has the incidental effect of over-deterring protected speech. Although applications of the chilling effect are pervasive in cases involving the freedom of speech, they have received surprisingly little attention.
This Article focuses specifically on the use of chilling effect arguments to explain the role of speaker’s intent in protecting free speech. Speaker intent requirements, such as the “actual malice” standard for defamation, are common features of First Amendment law, and the chilling effect has been the primary doctrinal and normative explanation for their presence. This Article argues that the chilling effect is an unsatisfactory justification for such requirements. Moreover, the failure of the chilling effect to account for important aspects of free speech doctrine ought to raise more general concerns about the use of deterrence-based arguments in constitutional law.