Friday, January 31, 2014
Robert Stevens (Oxford) has posted to SSRN Private Rights and Public Wrongs. The abstract provides:
This paper is in two parts. First, the analytic question of how we distinguish crimes from torts will be addressed. Second a normative claim will be made that Mill’s Harm Principle is both too narrow and too broad in determining what kind of conduct can be criminalised.
The final version will appear in a book of essays edited by Matthew Dyson entitled "Unraveling Tort and Crime"
Thursday, January 30, 2014
Kyle Graham (Santa Clara) has posted to SSRN Strict Products Liability at 50: Four Histories. The abstract provides:
This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "functionalist," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for strict products liability as a superior alternative to negligence. The third examines why tort law eclipsed warranty as the doctrinal forum for products-liability reform. This article concludes that these non-canonical accounts have been obscured due to patterns and biases that recur across descriptions of doctrinal development in tort law.
Wednesday, January 29, 2014
Recently the New York Court of Appeals rejected medical monitoring. Behrens and Appel approve:
The New York Court of Appeals reached the right conclusion. For over 200 years, one of the fundamental principles of tort law has been that a plaintiff cannot recover without proof of a physical injury. This bright-line rule may seem harsh in some cases, but it is the best filter courts have developed to prevent a flood of claims, provide faster access to courts for those with reliable and serious claims, and ensure that the sick will not have to compete with the nonsick for compensation.
The full op-ed (behind a pay wall) is here.
Tuesday, January 28, 2014
Monday, January 27, 2014
On January 21, 2014, the Pennsylvania Sureme Court finally* decided Lance v. Wyeth. The court held that drug manufacturers could be liable for negligent design of an FDA approved drug. I believe this is the first jurisdiction to accept this theory. Drug & Device Blog has a thorough analysis of the opinion.
*finally because the case was argued in 2011 and has been pending before the state supreme court for nearly three years.
Sunday, January 26, 2014
This is slightly off-topic, but I know a significant number of torts professors also teach insurance courses. My hometown newspaper, The Patriot-News, does an excellent job of independent reporting. Today's paper has a great series on flood insurance (highly relevant to a river town like Harrisburg) and the effects of the Biggert-Waters Flood Insurance Act of 2012. The online version at PennLive is here.
Thursday, January 23, 2014
Jay Feinman & Caitlin Edwards (Rutgers-Camden) have posted to SSRN Henningsen v. Bloomfiled Motors, Inc. (1960): Promoting Product Safety by Protecting Consumers of Defective Goods. The abstract provides:
Safety recalls, child-safe toys, and other consumer safety protections are taken for granted today, but there was a time not so long ago when everyday products were dangerous and consumers who were injured by cars, toys, or other products faced a difficult road to recover compensation from manufacturers. About fifty years ago all of this changed, drastically and in a short period of time. The catalyst for this dramatic change was an unlikely source — a woman from Keansburg, New Jersey, who was injured when her new Plymouth sedan suddenly veered into a brick wall. When she initially sued the dealer who had sold her the car and Chrysler, the manufacturer, the state of the law posed roadblocks to her recovery. The New Jersey Supreme Court recognized that change was needed and issued an opinion — Henningsen v. Bloomfield Motors, Inc. — that quickly would change the world of products liability and consumer protection.
This article, a chapter from Paul L. Tractenberg ed.," Courting Justice: 10 New Jersey Cases That Shook the Nation" (Rutgers University Press, 2013), tells the story of the facts that gave rise to Henningsen, the arguments in the courts, and the case’s role in the development of products.
Wednesday, January 22, 2014
Attempting to join many other states, several state representatives in Rhode Island have introduced a medical apology bill. Like many of those states, including PA (where a bill introduced by my state senator, Pat Vance, passed unanimously in 2013), the bill would exclude expressions of benevolence, but not full admissions of fault. A copy of the short bill is here.
Monday, January 20, 2014
Ruthann Robson at Con Law Profs reports on a Washington state case, where the court held that a statute of limitations for medical malpractice claims violated the state constitution's equal protection clause. Robson has a full dicussion of the decision at Con Law Profs.
Friday, January 17, 2014
We know many TortsProfs were unable to make it to D.C. due to the weather. The Faculty Lounge reports that AALS is offering partial refunds of the registration fee for those unable to make it due to weather. The form for a refund is here. The deadline is January 31st.
Thursday, January 16, 2014
Registration is now open for the 13th Annual Conference on European Tort Law presented by the European Centre of Tort and Insurance Law. The conference is April 24-26, 2014, and will be held in Vienna. The program includes a special session on Cyber-Torts.
Wednesday, January 15, 2014
Ori Herstein (King's College London) has posted to SSRN How Tort Law Empowers. The abstract provides:
The following realization has begun to dominate contemporary tort theory: in order to understand tort law, theorists must also focus on the legal power that tort law vests in tort victims to pursue a remedy, not only on the implications of holding tortfeasors liable for such a remedy. This insight has lead some of the leading theorists of tort law – often writing under the banner of ‘civil recourse theory’ – to suggest that tort law empowers tort victims to pursue and even to obtain redress from tortfeasors. This view has even been expanded to describe private law in general. Yet, close scrutiny reveals that tort law mostly does not vest in tort victims a legal power over the rights of tortfeasors. The same is most likely true for private law more broadly. For the sake of both descriptive accuracy and of realizing its prescriptive potential, civil recourse theory is best amended to view the legal rights and powers of tort victims, as well as the realities of civil litigation, more soberly, and with more conceptual accuracy. This article endorses and grounds the more modest and I think orthodox view on how tort law and private law more broadly empower victims of civil wrongs.
Tuesday, January 14, 2014
Monday, January 13, 2014
Courtesy of Cary Sklaren, is the Order Estimating Aggregate Liability in the Garlock bankruptcy: Download Garlock_Order_Estimating_Liability_12192013. The judge estimated liability at $125M, about 1/10 of the requested amount. In the course of a 65-page opinion, the judge wrote about multiple misrepresentations by plaintiffs' lawyers.
Shortly, the Widener Law Journal will be publishing papers from the Perspectives on Mass Tort Litigation symposium held here last April. Included will be a detailed article by Judge Eduardo Robreno (E.D. Pa.) explaining his methods for resolving gridlock in MDL-875, as well as articles on asbestos by Victor Schwartz & Mark Behrens and Todd Brown.
Saturday, January 11, 2014
My Widener colleague, John Culhane, often writes for Slate. He is thinking through a piece about potential torts in the George Washington Bridge closure and asked me to post the following:
Does anyone want to weigh in on whether the BridgeGate scandal currently engulfing the Christie Administration is likely to result in successful tort litigation against state officials by those who suffered economic loss because of the traffic nightmares? The first hurdle would be the extent of sovereign immunity for intentional bad acts in New Jersey (which I'm hoping someone just knows!), but the more interesting questions have to do with whether the economic loss rule, which applies to accidental harm cases, would prevent suits for this kind of intentional misconduct. I'm thinking that New Jersey would be one state where the claim might have some traction, because of the People Express case, 495 A.2d 107 (N.J. 1985) (not much followed, but not overruled as far as I can tell), which expresses a broadly progressive view of tort liability. I'm also thinking that there's some traction in the interference with economic relations cases, even though these usually require specific intent to interfere with an economic relationship rather than an intent to do some other kind of harm (such as a battery, or, in this case, to make life miserable for the Ft. Lee mayor (as if he didn't have enough problems already!).
Any thoughts, torts colleagues?
You can respond in the comments or e-mail John directly at firstname.lastname@example.org .
Thursday, January 9, 2014
Michael Frakes (Cornell) & Anumpam Jena (University of Chicago-Economics) have posted to SSRN Does Medical Malpractice Law Improve Health Care Quality?. The abstract provides:
Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current liability system plays at most a modest role in inducing higher levels of health care quality. We contend that this limited independent role for medical liability may be a reflection upon the structural nature of the present system of liability rules, which largely hold physicians to standards determined according to industry customs. We find evidence suggesting, however, that physician practices may respond more significantly upon a substantive alteration of this system altogether — i.e., upon a change in the clinical standards to which physicians are held in the first instance. The literature to date has largely failed to appreciate the substantive nature of liability rules and may thus be drawing limited inferences based solely on our experiences to date with damage-caps and related reforms.
Wednesday, January 8, 2014
We are delighted to congratulate Jan Levine, associate professor and director of Duquesne University's Legal Research & Writing program. Jan became the first professor to win, in the same year, the AALS Section on Legal Writing, Reasoning & Research Award and the Thomas F. Blackwell Memorial Award for Outstanding Achievement in the Field of Legal Writing. As former Freedman Fellows at Temple Law, the four of us owe Jan a substantial debt for his training and assistance in entering the academy. Jan modeled for us the demand for excellence to which we aspire. It is gratifying to see his worth recognized by others.
--Sheila, Chris, Meredith Miller (ContractsProf), and Byron Stier (Mass Torts Prof)
Tuesday, January 7, 2014
Monday, January 6, 2014
Really interesting case from Indiana at the intersection of torts and professional responsibility -
A lawyer was a partner in a firm. Firm client wanted to buy land that the partner owned. Partner refused but entered into a land use agreement with the firm client. There were disagreements over the land use contract. Firm client met with firm partners and threatened to take its business elsewhere unless the dispute was resolved with the partner. The firm removed the partner from the firm....
The partner subsequently filed a tortious interference agasint the firm client, and the Indiana Court of Appeals has just held that the partner can proceed. BNA has a full report on the case.
Friday, January 3, 2014
I had planned to be at AALS for the Torts Section tomorrow, but the weather has interfered. I've talked to several TortsProfs who are in the same boat. For those of you who can make it, Jenny Wriggins has set up a great program. Sheila (who will be there) posted about it yesterday. Adam Scales will be joining the Executive Committee as a new member. Enjoy!
P.S. I'll still be doing something Torts-related today: grading.