April 6, 2012
VA Tech Asks Court to Cap Damages Via VTCA in Shooting Case
The families of two victims of the April 2007 shooting at Virginia Tech won an $8M award last month. However, that award will be reduced to $100,000 per family pursuant to the Virginia Tort Claims Act. Many states have tort claims acts which took the place of full sovereign immunity; they allow tort claims, but with capped damages and sometimes at a higher standard, such as gross negligence. Reuters has the story.
April 5, 2012
Eisenberg on the Empirical Effects of Tort Reform
Theodore Eisenberg (Cornell) has posted to SSRN The Empirical Effects of Tort Reform. The abstract provides:
Tort reforms enacted in response to asserted crises date back to the 1970s and have emphasized the highly visible areas of punitive damages, medical malpractice, and products liability. Little evidence exists that reform of punitive damages affected the ratio between punitive and compensatory damages. This is consistent with the absence of evidence that punitive damages were ever out of control and in need of reform. Evidence of the effect of tort reform in the medical malpractice field is mixed. Caps on non-economic damages have reduced costs, thereby likely decreasing pressure on hospitals to improve care. Consistent evidence of effects on physician behavior and physician supply has not emerged. Tort reform has rarely sought to address the well-established problem of widespread harm caused by poor quality care. Products liability plaintiffs have had decreasing success over time. While one cannot rule out specific statutory reforms as achieving more favorable results for defendants, the national scope of plaintiffs’ declining success supports an explanation based on the social construction of knowledge by well-funded industry groups.
April 4, 2012
Congratulations to Widener's Tricia Lontz and Ryan Molitoris for winning Best Brief for the Petitioner and advancing to the semi-finals before losing to the eventual champions.
April 3, 2012
Louisiana Rejects Lower Threshold for Jury Trials
Louisiana has a $50,000 threshold for a jury trial. The Times-Picayune reports that:
Rep. Tony Ligi, R-Metairie, proposed lowering the cap to $15,000 in tort cases, chiefly personal injury cases. He originally filed House Bill 343 with a $5,000 threshold, but was unable to win over his colleagues on the Civil Law and Procedure Committee, which jettisoned the idea by a 7-5 margin.
April 2, 2012
Against Liability for Private Risk-Exposure
I just posted my most recent article on SSRN: Against Liability for Private Risk-Exposure, 35 Harv. J. L. & Pub. Pol'y -- (forthcoming 2012). The abstract provides:
Can a plaintiff who has not yet suffered an injury sue based on the risk of future harm? After decades of addressing whether these “no injury” or “unmanifested defect” suits are cognizable, courts today are intractably divided. This conflict has created incentives for forum-shopping as plaintiffs search for a jurisdiction friendly to “no injury” lawsuits and class certification. Using these “no injury” or “unmanifested defect” cases as a frame of reference, this Article argues that private risk-exposure should not be compensable. The Article begins by considering whether risk-exposure itself should be considered “harm.” Concluding that risk alone is not a setback to an interest, the Article then examines whether risk exposure should be compensable. Using the two dominant private law camps — utilitarianism and justice — the Article concludes that allowing liability for private risk-exposure is not justified. Claims for private risk-exposure are best addressed through the administrative process.
I am continuing to explore the issues of risk and future harm in my scholarship, and welcome your comments.