February 3, 2012
Bloom & Miller on Disabilities and Tort Litigation
Anne Bloom (Pacific-McGeorge) and the late Paul Steven Miller (University of Washington) have posted to SSRN Blindsight: How We See Disabilities in Tort Litigation. The abstract provides:
Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely to internalize this distorted perspective, as they are repeatedly exposed to it in the course of the litigation. This Article recommends several ways that tort litigation can present plaintiffs with disabilities in more empowering ways, while still recognizing the severity of the injuries involved, and without sacrificing the recovery of hedonic damages or otherwise reducing the plaintiffs’ awards.
February 2, 2012
Appellate Cases Turning on Actual or Proximate Cause?
Samson Vermont (Miami) has asked for your input for his seminar class. Do you know of any pending tort cases that turn on actual cause or proximate cause? He is looking for cases (in any state or federal court) that are on appeal or expected to be on appeal. Or, as another alternative, a case that did not get appealed but could have been appealed on causation grounds.
You are welcome to reply in the comments.
February 1, 2012
Rutgers-Camden Conference on Bad Faith
Last year, Rutgers-Camden became one of the few law schools to have 2 or more insurance experts on faculty when it hired Adam Scales (Jay Feinman has taught there for years). Now the school continues its focus on insurance by hosting "Bad Faith and Beyond" on February 29th. In addition to Adam and Jay, speakers include: Ken Abraham, Tom Baker, Robert Jerry, Ellen Pryor, Doug Richmond, and Peter Siegelman. Details are here.
January 31, 2012
Of New Preps and Casebooks
For the first several (roughly 5) years I was a law professor, I taught the same course package. In a prior life I was a litigator and so I taught a litigation package. We have two semesters of Torts here and I taught Torts I and Torts II. I also taught Evidence and Professional Responsibility. I enjoy all of these courses. There is definitely an advantage to retaining the same courses; you learn the material thoroughly and you can focus more resources on scholarship.
This year, 3 of my 4 courses are new preps. In the last year and a half, I have taught 4 new courses. I have added Insurance, Products Liability, Contracts I and Contracts II. I have enjoyed the new material, and I feel like it has given me a better understanding of tort law. For Insurance and Products Liability, that makes a lot of sense given how related they are. It also applies to Contracts. Teaching Contracts helps map the boundary between the two topics.
In teaching the new courses, I have been delighted with my casebook selection. In Insurance, I use Ken Abraham's "Insurance Law and Regulation (5th ed. 2010)." The book is well-organized and I like the inclusion of actual insurance policies. In Products Liability, I am using David Owen, John Montgomery, and Mary Davis's "Products Liability and Safety (6th ed. 2010)." I'm still making my way through it, but the first chapter provides a number of perspectives on products and the subsequent organization is good. The notes are thorough and engaging. Moreover, the authors of these 2 books are very helpful. In Products, both David and Mary have offered guidance on syllabi, paper topics, and guest speakers. In Insurance, Ken Abraham once responded to an e-mail question in 15 minutes...from Paris.
For my Torts casebook, I use Marc Franklin, Robert Rabin, & Mike Green's "Tort Law and Alternatives (9th ed. 2011)" and have used that book from the beginning. I like it a lot. It is thorough and the case selection is engaging. In the future, I may try another casebook simply for the sake of variety. Two casebooks that have caught my eye: Tom Galligan, Phoebe Haddon, Frank Maraist, Frank McClellan, Mike Rustad, Nicholas Terry, and Stephanie Wildman's "Tort Law: Cases, Perspectives, and Problems (4th ed. 2007)" and John Goldberg, Tony Sebok, & Ben Zipursky's "Tort Law: Responsibilities and Redress (2nd ed. 2008)."
January 30, 2012
Smith on "Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder"
Deirdre Smith (Maine) has a recent article that just came out in the Temple Law Review, "Diagnosing Liability: The Legal History of Posttraumatic Stress Disorder." The abstract provides:
This Article examines the origins of the unique relationship between the psychiatric diagnosis Post-traumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry’s standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM) - and is the focus of significant controversy within psychiatry - because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person’s symptoms, a practice more commonly associated with the law. In short, the diagnosis uniquely medicalizes liability. The law has turned to PTSD, on the erroneous assumption that its location in the DSM signifies that it is well-settled science, to serve as a mechanism to resolve difficult problems in assessing legal responsibility. These uses include determining whether a criminal complainant is credible and when emotional distress from another’s negligence is sufficient in itself to serve as a basis for liability. However, by adopting PTSD’s conceptualization of causation of psychological injury, courts unknowingly delegate normative determinations of liability to psychiatry broadly and to the individual psychiatrists who present PTSD evidence at trial. I argue that the legal system should consider PTSD’s origins and its persistent controversies as part of a broader reexamination of the role of the diagnosis in the law.
Thanks to Jennifer Wriggins for the alert.