Friday, February 28, 2014
Earlier this month, I reported that a $350K med mal cap on non-economic damages was voted out of committee in the Missouri House. The full House has now given the bill preliminary approval; one more positive vote will send it to the Senate. OzarksFirst.com has the story.
Meanwhile, in Kansas, legislation advanced in the Senate that would raise that state's cap on non-economic damages in personal injury cases from $250K to $300K in July, $325K in July 2018, and $350K in July 2022. As part of a compromise, other changes would be implemented, including giving judges discretion to limit testimony from purported experts and allowing juries to consider whether people suing over their injuries have insurance or other forms of compensation. The cap change proposals were spurred by statements from the Kansas Supreme Court that it was troubling the cap had not been adjusted for inflation since its passage in 1988. The San Francisco Chronicle has the story.
Wednesday, February 26, 2014
James Henderson (Cornell) & Aaron Twerski (Brooklyn) have posted to SSRN Optional Safety Devices: Delegating Product Design Responsibility to the Market. The abstract provides:
Early in the development of a robust system of products liability law, American courts delegated most of the responsibility for assuring the safety of product designs to the market. Except for designs that failed to perform their intended functions and thus should be said to be dangerously self-defeating, most courts rejected claims that products were legally defective because they could have been designed more safely. As long as the relevant risks were obvious or product sellers supplied adequate warnings of hidden risks, product purchasers, not courts, determined how much design safety was appropriate. And then came the products liability revolution. Spurred by the adoption of strict liability under § 402A of the Restatement (Second) of Torts, courts began in the 1970s to question, and then to reject, the idea that adequately-informed consumers always make sensible decisions regarding product design safety. Thus arrived a new era in American products liability in which courts began independently to review the reasonableness of manufacturers’ product design choices, thereby second-guessing decisions reached in the market. In fairly short order courts abolished the patent danger rule and opened their doors to a broad range of fault-based design defect claims.
Perhaps the most significant exception to the general pattern of courts overriding markets by engaging in broad product design review — a controversial subject upon which this essay focuses — concerns optional safety devices with respect to which purchasers, not courts, often make controlling decisions. The issue of when courts should delegate responsibility for product design safety is complex. What has been lacking to date is a structured approach to this issue. This essay, for the first time, pulls together the various strands of rationale offered by the courts into a coherent approach, concluding with a proposed Restatement section with comments. Work remains to be done in applying the suggested approach to future cases. The authors believe that this essay provides an important starting point for further development.
Tuesday, February 25, 2014
I am sorry to report the passing of one of the great empirical legal scholars of our day: Professor Ted Eisenberg (Cornell). Professor Eisenberg, age 66, died on Sunday from a heart attack. From the Cornell statement:
Known as the “grandfather of empirical legal studies,” Eisenberg was a passionate teacher, beloved colleague, and prolific scholar during his 33 years at the Law School.
A legendary figure in the areas of bankruptcy, civil rights, and the death penalty, Eisenberg has used innovative statistical methodology to shed light on such diverse subjects as punitive damages, victim impact evidence, capital juries, bias for and against litigants, and chances of success on appeal. He is the founder of the Journal of Empirical Legal Studies and a Fellow of the American Academy of Arts and Sciences. Eisenberg taught courses on bankruptcy and debtor-creditor law, constitutional law, civil rights, contracts, federal income taxation, and empirical studies of the legal system.
Photo atttribution: Cornell Law School
Monday, February 24, 2014
Friday, February 21, 2014
The Kentucky Senate, on a 23-13 party-line vote, approved a bill requiring med mal complaints to be taken to a panel of experts to determine whether there was a violation of the standard of care prior to being litigated in court. The panel's finding would be admissible in the trial unless new substantial evidence were discovered after the report. Previous iterations of this proposal have failed in the Kentucky House. Many jurisdictions have similar laws. The Courier-Journal has the details.
Thursday, February 20, 2014
Have you heard of the Law & Economics Center Workshops for Law Professors? These four-day workshops are held throughout the year, throughout the country (with an emphasis on great locales to visit, such as the Florida Keys; Steamboat Springs, CO; and Palo Alto, CA), and are designed to foster a better understanding of law & economics.
I recently attended the LEC Workshop on Risk, Injury, Liability & Insurance held January 30th to February 2nd at Hawks Cay Resort on Duck Key in Florida. Lodging and most meals were covered by the LEC. Many of the participants were alumni of other LEC workshops and thus knowledgeable about basic law and economics principles, though a handful (including myself) had only engaged peripherally in the topic. Faculty presenters were Henry Butler, Executive Director of the LEC; Jonathan Klick (Penn), and Eric Helland (Claremont McKenna).
Broadly speaking, the goal of these workshops is to introduce the participants to law and economics thinking on the particular topic. Our workshop focused on the economics of uncertainty and risk, and how that translated to legal concepts in insurance and tort law. Despite the variety in background knowledge levels among participants, the teaching was very accessible and at the same time sophisticated and engaging. Discussions focused on problems of adverse selection, moral hazard, and external costs. I definitely gained a better understanding of the economics of risk, and I benefited tremendously from both the assigned readings (voluminous but thoughtfully selected), and instruction.
The Law & Economics Center deserves its outstanding reputation. I highly recommend the LEC Workshops to anyone with a passing interest in law and economics.
Tuesday, February 18, 2014
Last April at Widener, we hosted a symposium entitled "Perspectives on Mass Tort Litigation." The first of two issues of articles from the Widener Law Journal is now available. It's a terrific lineup:
Christopher J. Robinette, Introduction Download Robinette_V23I1
Victor E. Schwartz & Mark A. Behrens, Asbestos Litigation: The "Endless Search for a Solvent Bystander" Download Behrens&Schwartz_V23I1
Eduardo C. Robreno, The Federal Asbestos Products Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? Download Robreno_V23I1
Byron G. Stier, The Sale and Settlement of Mass Tort Claims: Alternative Litigation Finance and a Possible Future of Mass Tort Resolution Download Stier_V23I1
Thurbert Baker, Paying to Play: Inside the Ethics and Implications of Third-Party Litigation Financing Download Baker_V23I1
Sheila B. Scheuerman, Mass Tort Ethics: What Can We Learn from the Case Against Stanley Chesley? Download Scheuerman_V23I1
Nicholas P. Vari & Michael J. Ross, In a League of Its Own: Restoring Pennsylvania Product Liability Law to the Prevailing Modern "Attitude" of Tort Law Download Vari&Ross_V23I1
S. Todd Brown, Bankruptcy Trusts, Transparency, and the Future of Asbestos Compensation Download Brown_V23I1
Monday, February 17, 2014
Saturday, February 15, 2014
Assessment Across The Curriculum
Institute for Law Teaching and Learning
Spring Conference 2014
Saturday, April 5, 2014
“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning. The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.
Conference Content: Sessions will address topics such as
Formative Assessment in Large Classes
Classroom Assessment Techniques
Using Rubrics for Formative and Summative Assessment
Assessing the Ineffable: Professionalism, Judgment, and Teamwork
Assessment Techniques for Statutory or Transactional Courses
By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.
Who Should Attend: This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.
Conference Structure: The conference opens with an optional informal gathering on Friday evening, April 4. The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops. Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference. The conference ends at 4:30 p.m. on Saturday. Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law).
Conference Faculty: Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).
Accommodations: A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201. Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com. The group code to use when making reservations for the conference is “LAW.”
Friday, February 14, 2014
Thursday, February 13, 2014
Iowa Governor Terry Branstad's 2015 state budget includes a section on "Helping Keep Doctors in Iowa." Among the ideas he proposes is a cap on non-economic medical malpractice awards. The Des Moines Register responded with an editorial (via The Pop Tort) in opposition that cited a study by the University of Iowa's Carver School of Medicine. The school surveyed all doctors leaving Iowa in 2007 and 2008. Of the 220 who responded, only one cited liability exposure as the most important reason for leaving. As The Pop Tort points out, this finding is consistent with empirical work by Bernard Black, Charles Silver, and David Hyman. Caps will not significantly affect physician supply and they have a disparate impact on the most seriously injured. Iowa should proceed by other means.
Wednesday, February 12, 2014
Tuesday, February 11, 2014
A new article in Albany Law Review addresses a growing issue of personal responsibility: the use of cell phones as a causal factor in accidents. In Don't Text, Talk and Walk: The Emerging Smartphone Defense in Personal Injury Litigation, Robert Lang explores recent case law where the plaintiff and/or defendant was distracted on a cell phone at the time of an accident.
Some possible exam material in this one!
Monday, February 10, 2014
From James Lee (Birmingham):
I write to invite proposals for papers for the Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.
The overall theme of the Conference is ‘Judging in the 21st Century’. I anticipate that it will be likely that Tort papers will be able to engage readily with this topic, whether focusing on decisions of the highest courts in relevant jurisdictions or on work at first instance, for example. Beyond the theme, proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the second half of the Conference: please note that it has changed from the first half last year, so will run on Thursday 11th and Friday 12th.
All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. We are pleased to have had a range of colleagues presenting high quality papers in recent years, notably from many ODGers. If you are interested in presenting a paper, please e-mail me at email@example.com with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Friday 7th March 2014.
Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.
Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.
Friday, February 7, 2014
On Wednesday, a Missouri House committee approved a $350,000 cap on non-economic damages in med mal cases. A prior cap was in place in Missouri from 2005 until declared unconstitutional in 2012. A similar bill to reinstate the cap stalled in the state Senate last year. The Saint Louis Post-Dispatch has the story.
Thursday, February 6, 2014
Joe King (Emeritus, Tennessee), in a recent issue of the Vermont Law Review, examines the issue of whether the NY Times standard for defamation should apply to statements about former public officials and former candidates. Those familiar with King's work know he favors the application of the NY Times standard to all defamation plaintiffs, regardless of the status of the plaintiff or the content of the speech. Within the confines of current doctrine, however, King recommends a fact-specific approach depending significantly on whether the conduct allegedly occurring was while the plaintiff was still in office or a candidate for office. King's article is at 38 Vt. L. Rev. 275 (2013).
Tuesday, February 4, 2014
Yuvai Sinai (Netanya) and Benny Shmueli (Bar-Ilan) have posted to SSRN Calabresi's and Maimonides's Tort Law Theories--A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on Two Theories. The abstract provides:
The main argument of Sinai and Shmueli's article is that the roots of contemporary utilitarian analysis can be traced back to Jewish law sources, and the ancient model can assist us in presenting a preliminary sketch of a modern model of pluralistic tort liability.
Is it possible to create a virtual dialogue between the method of classic scholars of the economic analysis of tort law, such as Guido Calabresi — one of the founders of (tort) law and economics, and the method of Jewish tort law scholars, such as Talmudic and post-Talmudic sages, especially Maimonides? The obvious answer appears to be negative, as the two methods are miles apart in time and space, geographically, and mentally-culturally. However, we point out that it is definitely possible to conduct a dialogue between the two tort theories, and the results are likely to surprise. It is surprising to read ancient sources in the eyes of law and economics. Even though these sources focus especially on private tortfeasors and daily torts as nuisances between neighbors, and not with mass tortfeasors and victims as in the modern industrial world, one can definitely observe deep elements of law and economics in these sources.
Careful analysis of modern tort law and economics helps in the understanding of many Talmudic sources and Maimonides’s tort theory, which many scholars had difficulty explaining because of their deviation from the principle of fault. This analysis explores that Talmudic tort law, in the light of Maimonides writings, follows a pluralist path, which balances between utilitarian and deontological considerations. Maimonides’s theory consists of various objectives and considerations that operate in concert. Different objectives play a dominant role in different types of damage.
Although at times scholars use considerations of efficiency in support of their arguments, most of them do not ascribe any independent value to an economic or utilitarian approach or perspective; from their point of view this is no more than some type of added value. The present article, however, argues that Maimonides was not of this opinion but saw the value of a utilitarian approach as a guiding conceptual pattern and philosophical approach, although he did not refrain from integrating other values as well.
Nevertheless, in addition to pointing out the meeting points between the theories, we also indicate the significant differences between them, which follow from the different and at times conflicting positions of the methods.
Hence, the analysis of the dialogue between the methods produces a deeper understanding of both theories of tort law, each one separately. However, theoretical research often finds its way to practical application. The analysis is expected to enable us to integrate the two methods, if only in part, into a modern model of tort liability. Hence, we will propose an applicative model that contains an outline of a theory of torts inspired by the writings of Maimonides and other Jewish scholars, and contemporary prominent law and economics scholars such as Calabresi and Posner. The assumption is that the model presented by Maimonides is creative, but needs to be adapted to the present; whereas Calabresi's model is compelling. Nonetheless, we think that Calabresi's model is less suitable for classical tort events committed by uninsured individuals who do not manage risks and do not distribute losses, which have not disappeared entirely from the present landscape of torts. On these grounds, it is possible to propose a modern preliminary sketch that can serve as an introduction for a modern model of tort liability. The proposed model will be pluralistic, featuring (what we call) "differential liability," based on Calabresi's doctrines of the cheapest cost avoider and of the best decider, but different from them. This outline highlights a certain split between (a) the need to implement strict liability, and efficiency considerations in some of the tort cases, and (b) to apply liability that is not absolute but rather fault-based, as well as deontological considerations in other tort events. The efficiency considerations apply especially to cases in which insurance is dominant, when it is possible to identify a deep pocket, and when loss is distributed; the deontological considerations apply especially in classical traditional tort events involving an uninsured private tortfeasor, who has limited financial means.
The model also provides complementary interpretation to seemingly contradictory economic approaches of no-fault (Calabresi) and fault-based (Posner) regimes.
Prof. Calabresi's response discusses law, economics, and Justice in our era and according to Maimonides. It discusses empirical differences in times in their implications, and considers the question whether there are differences between the differential liability model, presented by Maimonides and analyzed by Sinai and Shmueli, and the cheapest cost avoider doctrine. It also expands on deontological vs. utilitarian considerations, and presents justice according to law and economics.
The authors are working on expanding the analysis into a book.
Robert Hedley Stevens (Oxford) has just 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 paper is part of a forthcoming book, "Unraveling Tort and Crime."
Monday, February 3, 2014