Thursday, December 26, 2013
After 5 successful years of leading the Institute for European Tort Law, Ken Oliphant is stepping down at the end of 2013 to resume his position as Professor of Tort Law at the University of Bristol. Ernst Karner, of the University of Vienna, will act as interim Director. Congratulations and best wishes to both!
Friday, December 20, 2013
Wednesday, December 18, 2013
A North Carolina man has filed a suit alleging alienation of affections not only against the man who had an affair with his wife, but also against Ashley Madison, an online dating site that markets to people interested in affairs. The North Carolina legislature restricted heart balm actions to natural persons in 2009, but the plaintiff's lawyer argues that the actions leading to the breakup of the marriage occurred in 2007 and the old law applies. The Charlotte Observer has the details.
Tuesday, December 17, 2013
Monday, December 16, 2013
Ken Bensinger at the LA Times reports that Toyota is engaged in settlement talks over the sudden unintended acceleration (SUA) cases that resulted in death or injury. (Toyota previously settled the economic loss cases, and the court approved that settlement last July). Our friend Byron Stier, over at Mass Torts Profs, is quoted in the article.
Friday, December 13, 2013
Rep. Eric Burlison has pre-filed a bill that would reinstate a noneconomic damages cap of $350,000 on med mal cases in Missouri. In 2012, the state supreme court struck down a similar cap. The Missouri House passed a cap last year, but it died in the Senate. KMSU has the story.
Thursday, December 12, 2013
Imgard Griss‘How Judges Think: Judicial Reasoning in Tort Cases from a Comparative Perspective’(2013) 3 JETL 247
Donal Nolan‘Damage in the English Law of Negligence’(2013) 3 JETL259
Patrick O’Callaghan‘False Privacy and Information Games’ (2013) 3 JETL282
Paula Giliker‘Vicarious Liability “On the Move”: The English Supreme Court andEnterprise Liability’ (2013) 3 JETL 306
Quinten De Raedt‘Loss of a Chance in Medical Malpractice: A Double Application’ (2013) 3 JETL 314
Joseph A Page‘D Dobbs/ P Hayden/E Bublick, The Law of Torts, Practitioner Treatise Series’(2013) 3 JETL 328
Peter Stockenhuber‘G Messen,Der Anspruch auf Schadenersatz bei Verstössen gegen EU-Kartellrecht (2013) 2 JETL339
Olivier Moréteau‘François Terré (ed), Pour une réform du droit de la responsabilité civile, Collection: Thémes’(2013) 3 JETL 342
Jane Wright 'A Fenyes/ E Karner/ E Steiner (eds), Tort Law in the Jurisprudence of the European Court of Human Rights’ (2013) 3 JETL 347
Christophe Quézel-Ambrunaz‘R Goldberg (ed), Perspectives on Causation’ (2013) 3 JETL 351
Christina Eberl-Borges‘Peter North, Civil Liability for Animals’ (2013) 3 JETL 356
Wednesday, December 11, 2013
A New Jersey Superior Court reaffirmed that only the golfer taking the shot is legally responsibile for yelling "fore" for an errant shot. In Corino v. Duffy, the court held that two bystanders - friends of the golfer hitting the ball and part of the threesome - were not liable for the golfer's shot striking the plaintiff in the right eye. A copy of the decision is available here. The Legal Blitz has more on the decision.
Monday, December 9, 2013
Ken Oliphant and Barbara C. Steininger have edited European Tort Law Yearbook 2012. It contains reports on tort law developments in 28 European countries and in the law of the EU. As a bonus, there is an additional report from Israel.
Thursday, December 5, 2013
Wednesday, December 4, 2013
Elizabeth Chamblee Burch (Georgia) has posted to SSRN Revisiting the Government as Plaintiff. The abstract provides:
This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State.
As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing out in an unsettled landscape where those first-order questions about legitimacy remain unresolved.
When layered atop the existing controversy over the intermingling of government functions, executive officials’ relatively new allocative role may put their actions even further at odds with their traditional regulatory and proprietary functions, particularly when the action yielding the compensation is a public substitute for a private right of action. What principles should guide officials in this new role: traditional tort law, social welfare, or political equality principles such as one person one vote? More specifically, should executive officials look to tort law precepts to govern the allocation and retain concepts such as economic loss and the collateral source rule, or employ a governmental aid aspect, which would suggest a principal of equality that would not vary based on one’s income but would consider collateral sources of compensation?
Zimmerman suggests that officials have attempted to justify both their regulatory and allocative decisions with ill-suited corrective justice principles that translate poorly from the private to the public sphere. Despite reservations about whether regulation through litigation results in the best policies or offers democratic checks, he seems more willing to accept executive officials’ increased litigation role in the wake of Congressional failings and the difficulty of certifying a private class action. He thus tailors his reform proposals to target the government’s allocative function, suggesting ways to improve legitimacy and transparency in distributing recoveries, whatever the guiding principle might be.
Still, certain concerns and questions linger. First, Zimmerman narrows his focus to the second generation question of allocation, even though he raises and dismisses first-generation concerns over whether executive officials are properly acting within the scope of their authority and whether the regulatory solutions they generate through litigation are legitimate and optimal. Shoring up back-end allocation procedures, however, does not alleviate first-generation legitimacy questions or regulatory concerns. Second, Zimmerman opts not to iron out overarching systemic problems like legislative stalemates or mounting difficulty in certifying class actions, preferring instead (or perhaps more realistically) to work within the circumstances that prompt executive action. Yet, truly legitimizing process and adhering to corrective justice principles would require resolving systemic concerns about who should litigate and who should regulate. Finally, given concerns that judges already “rubber stamp” class-action settlements and that parties tend to find innovative ways to gerrymander votes and stakeholder input in areas like bankruptcy, one might question the effectiveness of Zimmerman’s proposals for enhancing due process when allocating state recovery to affected citizens.
Tuesday, December 3, 2013
Keith Hylton (Boston University), Haizhen Lin (Indiana University), and Hyo-Youn Chu (Kyung Hee University) have posted to SSRN Negligence and Two-Sided Causation. The abstract provides:
We extend the economic analysis of negligence and intervening causation to “two-sided causation” scenarios. In the two-sided causation scenario the effectiveness of the injurer’s care depends on some intervention, and the risk of harm generated by the injurer’s failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of intervening causal factors is low.