Friday, March 15, 2013
I intended to blog this conference session-by-session starting yesterday, but a computer malfunction based on user error prevented it.
Session One (Introduction and Chapter One)
Marshall began the conference by summarizing the thesis of his book, drawn from his study of injury law that has led him to believe that it has some of the qualities of a constitution. He includes within injury law not only tort law, but also compensation systems like workers' comp and the 9/11 Victim Compensation Fund, and statutory safety regulation. Shapo said the injury law constitution "embodies the tensions" within the field. He pointed specifically to the tensions among efficiency and social and individual justice. He also focused on the themes of choice, responsibility, and safety.
Bob Rabin was a commentator. He praised Shapo for the use of a "wide-angle lens" on the subject. He said it was an ambitious undertaking and stated he was in basic agreement with Shapo. He noted, however, that he had a different focus. Rabin said that while Shapo looks at injury law and sees a coherent constitution-like structure, he sees a patchwork design. He noted the pragmatic and public policy constraints in each of the 3 areas of tort, compensation systems, and safety regulations.
Responding to comments, Shapo stated his work was more descriptive than normative and described the injury law constitution as a "series of battles with ebbs and flows." As Shapo acknowledges, the injury law constitution does not provide a direct measuring rod for statutes and judicial decisions as does the traditional American conception of a constitution. Based on that acknowledgement, comments and questions focused on the work done by his analogy to a constitution. To me, it seems the most likely use of the analogy is to present injury law in a broader context than tort alone. Additionally, Shapo's concept of the injury law constitution "embodying the tensions" is similar to the way the U.S. Constitution is viewed by many as providing a never-ending argument over government. Shapo offers an alternative phrasing, "a constitutive injury law," for those who might prefer it.
Session Two (Chapters Two and Seven on Power)
Shapo began the session by stating that behind many tort cases is a concern over checking power. In tort, he pointed to products liability, with its concern for the power of manufacturers, medical malpractice, IIED (with its focus on employment relationships and sexual harassment), and constitutional torts (a phrase he coined in a 1965 article), illustrating safety regulation, he pointed to OSHA, and for compensation systems, he pointed to workers' comp.
Cathy Sharkey began by stating that perhaps acting as a check on power was a further analogy to a constitution. She stated a theme of the book was a preference for decisions at the "trench level," jurors in many cases. She also questioned whether a concern with power would mean that tort should dominate contract in many instances. Finally, she discussed preemption and pushed Shapo to focus more on it.
Comments and questions focused on power relationships in settlement, between federal and state law, and between plaintiffs and plaintiffs' attorneys.
The evening concluded with glowing tributes to Shapo from his colleagues and included statements from Judge Calabresi and Justice Scalia.
Session Three (Chapter Nine on Rationales)
Shapo was unfortunately late this morning because of a terrible car crash on Lake Shore Drive last night. Anita Bernstein had to start speaking before his arrival. She indicated that Shapo approved of a number of tort rationales: safety, efficiency, freedom, corrective justice, apology, vindication, punishment, social justice, uniformity, and rationality. She discerned a normative streak hidden in Shapo's descriptive project. She stated that one needed to consult his prior writings to see what he disapproves of. The list includes: "dangerous products," an "obsession with comparative institutional analysis," and "failure to give sufficient weight to competing points of view."
Comments and questions focused on whether Shapo had a clear hierarchy for his list of rationales. Shapo was able to join the session at this point and acknowledged he considered himself a pluralist and was not attempting to present a unifying theory or hierarchy. Instead, his goal was to identify a catalog of rationales, goals, and purposes.
Session Four (Conclusion)
Shapo began the final session by revisiting the tension between the individual and society. He then discussed Judge Hand's tribute to Judge Cardozo, in which he said the wise man was the detached man. He referred to examples pro and con on judging as ideological, on the one hand, and nonpartisan, on the other. Referring to a phrase used by a foreign correspondent he found in research before he went to law school, Shapo concluded by saying he hoped his work captured the "smell of the streets."
Jacqueline Zins, the former Deputy Special Master for the 9/11 Fund, was the commentator for this session, focusing on the role of compensation systems in Shapo's injury law constitution. She detailed the statute creating the 9/11 Fund and all of its gaps. She further detailed how Ken Feinberg, as Special Master, filled in those gaps. Much of his focus was on equality and compassion.
Comments and questions focused on the differences between the Fund and tort law, as well as Zins's declaration (mirroring Feinberg) that the Fund was unique and would not be repeated.
Thursday, March 14, 2013
Today and tomorrow the Searle Center at Northwestern is hosting a conference on Marshall Shapo's An Injury Law Constitution. The format is interesting; there is a group of about 35 having a roundtable discussion instead of panelists. There are 4 sessions and each has a commentator to begin the discussion.
Session One: Introduction and Chapter One (Bob Rabin)
Session Two: Chapters Two and Seven (on Power) (Cathy Sharkey)
Session Three: Chapter Nine (on Rationales) (Anita Bernstein)
Session Four: Conclusion (Jacqueline Zins, Former Deputy Special Master of the 9/11 Fund)
I plan to blog the sessions (though probably not as they occur), so stay tuned.
Wednesday, March 13, 2013
TortsProf Martha Chamallas has published the Third Edition of Introduction to Feminist Legal Theory. The description:
The leading text in the field, Introduction to Feminist Legal Theory was the first book that served as an introductory survey of feminist jurisprudence. Its historical view of feminist legal theory places issues in social context and thoroughly reviews the evolving paradigms of contemporary feminism from the 1970s through the present. The full range of legal issues affecting women are covered, including gender discrimination, rape, sexual harassment, motherhood, reproductive issues, and much more. Clear, energetic presentation keeps students engaged and involved with succinct overviews, intellectually stimulating material, and jargon-free prose.
Tuesday, March 12, 2013
A front page article in yesterday's Wall Street Journal reported on a WSJ investigation into the state of asbestos litigation. The article, "Asbestos Claims Rise, So Do Worries About Fraud," is behind a pay wall. In part, the article reports:
The Wall Street Journal reviewed trust claims and court cases of roughly 850,000 people filed since the late 1980s until as recently as 2012.
The analysis found numerous apparent anomalies: More than 2,000 applicants to the Manville trust said they were exposed to asbestos working in industrial jobs before they were 12 years old.
Hundreds of others claimed to have the most-severe form of asbestos-related cancer in paperwork filed to Manville but said they had lesser cancers to other trusts or in court cases.
The Manville trust declined to comment on individual cases, citing privacy concerns. The trust's general counsel, David Austern, said the trust tightened its oversight after a 2005 claims scandal, adding: "We audit periodically and haven't found any fraud."
Accompanying the article is a neat graphic showing the connections between various law firms and the asbestos bankruptcy trusts.
Monday, March 11, 2013
The National Law Journal reports that a California trial judge has denied summary judgment in the Michael Jackson wrongful death case. Jackson's mother and children have sued the concert promoter, AEG Live LLC, for negligence in hiring and supervising Dr. Conrad Murray, Jackson's physician. Trial is scheduled to being April 2nd. The full story is behind a free registration wall.
Thanks to Lisa Smith-Butler for the alert.