Wednesday, October 31, 2012
Elizabeth Porter (Washington) has posted to SSRN Tort Liability in the Age of the Helicopter Parent. The abstract provides:Discussions of parental liability by courts and legal scholars are often tinged with fear: fear
that government interference will chill parental autonomy; fear that parents
will be held liable for their children’s every misdeed; and, recently, fear that
a new generation of so-called “helicopter parents” who hover over their
children’s every move will establish unrealistically high legal standards for
parenting. However, in the context of common law suits against parents, these
fears are misguided. To the contrary, courts have consistently shielded
wealthier parents — those most likely to be defendants in civil suits — from
exposure to liability for conduct related to their parenting
This Article critically examines the common law of parental
(non-) liability, both historically and in light of current cultural trends.
Parental liability takes two forms: liability for parents’ harm to their
children, and liability of parents for harms caused to others by their children.
Individually these subjects have received remarkably little scholarly attention;
together they have received none. Yet both types of parental liability are
central to ongoing cultural debates about parenting, as well as to current
controversies about the role of courts in establishing legal duty. A thorough
re-consideration of parental liability is particularly timely in light of the
new Restatement (Third) of Torts, which speaks directly to issues that are
central to both forms of parental liability.
This Article concludes that
courts should hold parents to a standard of reasonable care. The American common
law’s squeamishness about parental liability is understandable, but unnecessary.
Just as helicopter parents overreact to unsubstantiated fears of stranger
abduction based on anecdotes and media hype, limits on common law parental
liability are overreactions to unsubstantiated fears of collusion, government
interference and biased juries. To be sure, aspects of parental liability raise
significant concerns, but courts can and should address them narrowly using
established tort law principles, without imposing blanket no-duty rules. Juries,
in short, should be allowed to judge parents.
Tuesday, October 30, 2012
The Journal of Things We Like Lots (JOTWELL) has a new Torts section! JOTWELL provides short reviews of recent legal scholarship. The idea of JOTWELL is to identify and promote work that will be interest to others.
In the first JOTWELL Torts review, Cathy Sharkey (NYU) reviews Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. (forthcoming 2012) by Omri Ben-Shahar & Kyle D. Logue.
Saturday, October 27, 2012
Friday, October 26, 2012
Barbara Luppi (UNIMORE, St Thomas Visiting) has posted "Behavioral Models in Tort Law" on SSRN. The abstract provides:
In this paper, we illustrate how different behavioral problems can be incorporated into the standard economic model of tort law. Through this exercise, we develop a modeling language that can be utilized by law and economic scholars when considering the effect of behavioral biases and cognitive imperfections in tort law. We use these models in conjunction with the standard taxonomy of psychological biases, to show the effect of different biases on the behavior of tort agents. The models we present are applicable to a wide range of tort problems, and have the potential for application to a broader range of legal problems.
Thursday, October 25, 2012
Rudy Giuliani, former mayor of New York City, was the keynote speaker at the U.S. Chamber of Commerce's annual Legal Reform Summit held yesterday in Washington, D.C.. Using his experience as mayor, Giuliani discussed his views on why tort reform was necessary. C-SPAN has video of the speech. BLT also has the story.
Tuesday, October 23, 2012
The Sunday Boston Globe contained an article by Jay Fitzgerald on the potential suits from the outbreak of meningitis linked to a Framingham drug compounding pharmacy. Suffolk's Mike Rustad is quoted in the piece.
Friday, October 19, 2012
Thursday, October 18, 2012
...is available here: Download A_Roundup_of_Torts_Scholarship_Development_&_News_2012.
Congratulations to Jane Stapleton, the 2013 recipient of the Prosser Award!
Kudos to Andy Klein for his work on the newsletter.
Wednesday, October 17, 2012
SPECIAL ISSUE: CULTURES OF TORT LAW IN EUROPE
Edited by Ken Oliphant
Ken Oliphant ‘Cultures of Tort Law in Europe’ 147
Jean-Sébastien Borghetti ‘The Culture of Tort Law in France’ 158
Jörg Fedtke ‘The Culture of German Tort Law’ 183
Håkan Andersson ‘The Tort Law Culture(s) of Scandinavia’ 210
Richard Lewis and Annette Morris ‘Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation’ 230
Vibe Ulfbeck/John Murphy/Christian Katzenmeier/Ina Ebert/Katarzyna Ludwichowska-Redo/Ernst A Kramer
Comparative Studies in the Development of the Law of Torts in Europe (edited by John Bell and David Ibbetson), Vols 1–6 265
Tuesday, October 16, 2012
Joanna Shepherd (Emory) has posted "Justice in Crisis: Victim Access to the American Medical Liability System" to SSRN. The abstact provides:
An often overlooked problem with the current medical malpractice system is the vast number of medical errors that go uncompensated. Although studies indicate that one percent of hospital patients are victims of medical negligence, fewer than two percent of these injured patients file claims. In this Article, I explain that many victims of medical malpractice do not file claims because they are unable to find attorneys willing to take their cases. I conduct the first national survey of attorneys that explores medical malpractice victims’ access to the civil justice system. The results from the survey indicate that the economic reality of litigation forces many medical malpractice attorneys to reject legitimate cases. In fact, over 75 percent of the attorneys in my survey indicate that they reject more than 90 percent of the cases that they screen. The attorneys indicate that insufficient damages and high litigation expenses are their primary reasons for rejecting cases and that several tort reforms have reduced their willingness to accept cases. Moreover, the majority of the attorneys respond that they have threshold damage values, below which they will not consider accepting a case. In fact, over half of the attorneys responded that, even for a case they are almost certain to win on the merits, they will not accept the case unless expected damages are at least $250,000. For a case that they are only slightly likely to win, the vast majority of attorneys require minimum expected damages of $500,000 to accept the case. Because of the high cost of medical malpractice litigation, plaintiffs’ attorneys simply cannot economically justify taking cases with damages below these thresholds. As a result, many legitimate victims of medical malpractice are left with no legal representation and no meaningful access to the civil justice system.
Monday, October 15, 2012
Thursday, October 11, 2012
Wednesday, October 10, 2012
Tony Sebok (Cardozo) has posted to SSRN The Failed Promise of a General Theory of Pure Economic Loss: An Accident of History?. The abstract provides:
This article was prepared for the 2012 Clifford Symposium, which was held in of the career of Robert Rabin. The article reviews Rabin’s efforts to analyze and rationalize American tort doctrine concerning negligently caused economic loss, which is sometimes dubbed “pure” negligent economic loss so as to distinguish it from economic loss resulting from injury to the plaintiff’s person or property. The article praises and criticizes Rabin’s efforts. It notes that in his early writings on negligently caused economic loss Rabin celebrated decisions such as J’Aire Corp. v. Gregory because it was based on a theory of duty that drawn from a general theory of negligence that applied with equal force to other parts of negligence law, ranging from personal injury to emotional distress. The article then observes that in his later writings, Rabin seemed to back off from his optimistic claim that negligently caused economic loss can be subsumed under a general theory of duty and argued instead that courts must resort to ad hoc duty rules, thus leaving plaintiffs facing a patchwork of holdings driven by various policy considerations.
The article concludes by asking whether Rabin’s retreat is a reflection of an unavoidable reality, which is that negligently caused economic loss is, for whatever reason, destined to operate under principles that limit liability on the basis of principles and/or interests that are unmoored from tort law itself, or whether, as courts outside the United States have suggested (especially in Australia), there is a set of principles available which could subsume negligently caused economic loss cases within a broader theory of duty that includes personal injury, property damage, and emotional distress.
Tuesday, October 9, 2012
John Oberdiek (Rutgers-Camden) has posted to SSRN The Moral Significance of Risking. The abstract provides:
What makes careless conduct careless is easily one of the deepest and most contested questions in negligence law, tort theory, and moral theory. Answering it involves determining the conditions that make the imposition of risk unjustifiable, wrong, or impermissible. Yet there is a still deeper as well as overlooked and undertheorized question: Why does subjecting others to risk of harm call for justification in the first place? That risk can be impermissibly imposed upon others — that is, the very possibility of negligence — presupposes that imposing risk is the kind of thing that can be impermissible. Unless imposing risk can be impermissible after all, unjustified risking is literally impossible. In this discussion, I explore what I call the moral significance of risking, arguing that the moral significance of risking resides in a certain kind of nonmaterial autonomy interest that is implicated whenever one imposes risk of harm on another.
Monday, October 8, 2012
TortsProf Ellen Pryor (SMU) will become the Associate Dean for Academic Affairs at the UNT Dallas College of Law in January 2013. The announcement is here. Pryor has a strong reputation for both teaching and scholarship in torts.
Saturday, October 6, 2012
Friday, October 5, 2012
The Kansas Supreme Court has just released an opinion upholding a $250,000 cap on pain-and-suffering damages in personal injury cases. Missouri invalidated a similar cap in August.
The (lengthy) opinion (pdf) is here: Download DC-#413210-v1-Kansas_Cap_Constitutional_Cap_Decision
Thursday, October 4, 2012
This is slightly off topic, but Brendan Kenny of Blackwell Burke has founded the Twin Cities E-Discovery Forum. Our readers in the Twin Cities area of Minnesota should check it out.
We would like to invite you to the inaugural meeting of the Twin Cities E-Discovery Forum.
The forum will be a quarterly gathering of local outside counsel, in-house counsel, public-sector attorneys, the judiciary, technologists, and IT professionals dedicated to sharing knowledge and experiences about e-discovery best practices to create a stronger Twin Cities e-discovery community.
At our meetings and at other select events, we will cooperatively discuss current e-discovery issues, educate the local legal community about the challenges posed by electronic discovery, and arrive at cost-effective, ethical, and practical solutions.
The Twin Cities is home to some of the nation’s e-discovery's top talent. Among those national e-discovery thought-leaders that are committed to launching the forum are:
- George Socha: President of Socha Consulting LLC, Co-Founder of EDRM, and Co-Founder of Asperee.
- David Yerich: Director of E-Discovery, United Health Group.
- Michael J. McGuire: Shareholder and eDiscovery Counsel, Littler Mendelson.
Each meeting will have a different topic. There will be a meet and greet with a continental breakfast between 7:30–8:00am, followed by a presentation and a question- and-answer period ending at 9:00am.
The forum is:
- · Free: There will be no charge, no dues, and no fees for our quarterly meetings. Each meeting will be hosted by a different participant.
- · Open: The forum is an open-source e-discovery program. Anyone interested may attend.
- · Flexible: Because e-discovery is constantly evolving, the forum will be decentralized, voluntary, and nimble. Without a rigid agenda and formal structure, it can adjust to meet the ever-changing needs of the legal and technology communities.
- · Collaborative: As the experience of other cities’ e-discovery groups with this format show, the forum is not a CLE—it is a group discussion. Because our discussions are confidential, and because we know and trust our neighbors in the legal community, the forum will foster a more unified, more effective, and more collaborative Twin Cities e-discovery culture.
The forum is modeled after the Friends of E-Discovery groups that Karl Schieneman, Tom Allen, Pete Pepiton, and other lawyers have helped form in Pittsburg, Cincinnati, Columbus, Indianapolis, Cleveland, and Nashville. They have had great success, particularly in bringing together the judiciary, lawyers, IT staff, and technologists.
For more information about these groups, go to www.friendsofediscovery.com.
Opening Meeting Logistics
Our first meeting will be from 7:30–9:00am on October 16, at 431 South 7th Street, Suite 2500, in Minneapolis. It will be hosted by Blackwell Burke P.A. (www.blackwellburke.com/ediscoveryforum.php).
Opening Meeting Topic
After my brief opening presentation, Karl Schieneman will share some of the successes that e-discovery groups with this format have had. This will lead to a roundtable discussion on our most pressing e-discovery issues, and what we hope to gain from the forum.
Mr. Schieneman is a nationally recognized e-discovery thought-leader. He is president and founder of ReviewLess LLC (www.reviewless.co), an e-discovery provider. And he hosts the popular, always insightful, and always free ESI Bytes podcasts (www.esibytes.com).
If interested, please contact Brendan Kenny at 612-343-3211 or firstname.lastname@example.org.
Wednesday, October 3, 2012
Mike Rustad and Gabe Teninbaum at Suffolk are co-chairing Medical Malpractice: Current Issues in Physician, Medical Devices and Pharmaceutical Liability. The conference will be held at Suffolk Law on Friday, November 9, 2012. The description:
About the Conference
Tort reform developments, the U.S. Supreme Court's recent preemption decisions, and rapidly evolving causes of action and defenses are reshaping the medical liability landscape. The Sixth Thomas F. Lambert, Jr. conference brings together top legal practitioners, trial judges and leading academics to reflect on these changes and the potential impact on medical malpractice cases involving physicians, medical devices, and pharmaceutical liability. As Thomas F. Lambert would put it, "A fence at the top of the cliff is worth more than an ambulance in the valley below." Forewarned is forearmed.
Learn about how to resolve challenging medical liability issues from leading Massachusetts jurists and attorneys who try these cases. Learn about how trial judges approach avant garde lost chance cases, high tech medicine cases, and informed consent. This practical conference presents an update on national tort reform as well as New England developments such as the New Hampshire radical reformation of its medical liability and Massachusetts' Apology Bill. Leading trial attorneys will give their take on how these changes to medical liability law impact practice. This conference will give attendees the latest update on the U.S. Supreme Court’s preemption jurisprudence in medical device cases that are often partners in complex medical liability cases. While the emphasis will be on medical liability, there will also be an introduction to the products liability issues. The conference will present state of the art knowledge on what we know and still don’t know about medical liability verdicts from a practical perspective. Attend and hear leading trial lawyers and defense attorneys provide the best available guidance on discovery, voir dire, trial tactics, and jury instructions in a field increasingly impacted by preemption and tort reform. Don't miss this opportunity to learn about the latest developments from the trial judges that try these complex cases with commentary from leading plaintiff and defense experts.
The brochure (pdf): Download Lambert_Medical_Malpractice-2