Saturday, August 25, 2012
Friday, August 24, 2012
The SAFETY Act was passed in 2002 as part of the legislation creating the Department of Homeland Security. According to the website, the SAFETY Act "provides important legal liability protections for providers of Qualified Anti-Terrorism Technologies – whether they are products or services." In other words, the Act immunizes designated companies from tort liability stemming from a terrorist-related incident. Most companies on the list are technology manufacturers, who obtain civil immunity by meeting a battery of tests and getting Homeland Security's approval.
Now on the list? Yankee Stadium. As reported on NBC News.com, Yankee Stadium has become the first sports facility to earn the Safety Act designation. Thus, the venue is immune from civil liability by any future victims of a terrorist attack. Also on the list? According to NBC: Superbowl venues (generically listed as the NFL).
Wednesday, August 22, 2012
I have posted to SSRN a draft of my article from last January's AALS Torts & Compensation Systems Section panel on John Goldberg & Ben Zipursky's elegant civil recourse theory. Entitled Two Roads Diverge for Civil Recourse Theory, the abstract provides:
John Goldberg and Ben Zipursky’s civil recourse theory purports to be descriptive and unitary. It cannot be both. According to this theory, as a positive matter, tort law is unified by wrongs and is not designed to be used as an instrument for purposes such as compensation and deterrence. In this article, I argue that civil recourse theory does not offer a complete description of twenty first century tort law. Tort law is not just about civil recourse; at least part of tort law’s purpose is instrumental. The extent of routinization in tort law, particularly in automobile accident claims, demonstrates a gap between civil recourse theory and the tort law it is supposed to describe. In the trenches, insurers and plaintiffs’ lawyers are concerned about the profitability of their portfolio of cases as a whole. Insurers and many plaintiffs’ lawyers, therefore, routinize the claims system, increasing its administrability and the compensation of claimants, but reducing or eliminating the importance of wrongs in a large portion of cases. Civil recourse theory fails as a descriptive unitary theory of tort law because it does not accurately describe automobile accident claims, constituting a majority of tort claims and three-quarters of tort payments.
The symposium will be published by the Indiana Law Journal in the spring and contain articles from Judges Calabresi and Posner, Martha Chamallas, me, and a detailed introduction from Mike Rustad. John and Ben are in the unenviable position of responding to the 5 papers in 3 weeks!
Eric Voigt (Faulkner) has posted to SSRN A Company's Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to a Class Action. The abstract provides:
Consumer product companies are establishing internal programs where they are voluntarily compensating consumers for damages caused by their products. When a company implements a refund program in response to a threatened or pending class action, may federal courts rely solely on the voluntary refunds in denying class certification? The short answer is yes.
This Article analyzes Rule 23(b)(3) of the Federal Rules of Civil Procedure and the requirement that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." The Article argues that courts must compare the superiority of a class action not only to judicial procedures but also to a company's voluntary refund program. This Article also contends that a court must deny class certification when a reimbursement policy is fair and efficient. These arguments are strongly supported by the Advisory Committee Notes to the 1966 amendment to Rule 23, commentary by two former members of the Committee, the original purpose of the superiority requirement, and courts' and commentators' initial interpretations of the 1966 amendment. Last, the Article discusses what features a refund program must have to be a fair and efficient alternative to a class action.
Surprisingly, no federal court or scholar has analyzed the history or purpose of Rule 23(b)(3) as it applies to voluntary refund programs. Further, the relevancy of a refund program to the denial of class certification has been addressed in only one article (which took an opposing view) and by only a few courts.
Tuesday, August 21, 2012
Jill Wieber Lens (Baylor) has just posted "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages" to SSRN. The abstract provides:
In Exxon Shipping Co. v. Baker, the Supreme Court resolved a common law challenge to a punitive damage award. The freedom of the common law authority allowed the Court to address punitive damages from a policy basis. The Court described its ideal system for imposing the damages, one in which Justice Holmes’s bad man would know the punitive award he will face if he commits tortuous conduct. Its citation to Justice Holmes’s bad man reveals that the Court thinks very little of the damages’ punishment and deterrence common law purposes.
Justice Holmes’s bad man sees civil law only as a requirement to pay damages, and he assumes he will have to pay those damages. Applied to punitive damages, the lack of morality depletes the punishment purpose — the damages lose their basis for imposition, expression of moral condemnation, and resulting stigma. The assumption of guaranteed liability also rejects possible independent substance for the damages’ deterrence purpose by disregarding under-detection and under-enforcement.
The Court’s views on punitive damages have proven influential. Its conceptions of aimless punishment and deterrence in Exxon Shipping Co. make the damages even riper for legislative reform. But even if they survive reform, the depleted purposes are likely insufficient to constitutionally justify an award. Surprisingly, a common-law-based Supreme Court case, as opposed to a constitutionally based one, may be the last nail in the coffin of punitive damages.
Monday, August 20, 2012
In Tawfik v. al Sabah, the Southern District of New York dismissed an Alien Tort Claims Act suit brought by Egyptian nationals against the Emir of Kuwait based on sovereign immunity principles. The court found the State Department's suggestion of immunity controlling.
Thanks to Lee Dunst (Gibson Dunn) for a copy of the decision.