Saturday, December 26, 2015
I'm late reporting this, but a few days before Christmas, Houston trial lawyer Joe Jamail died. He was fabulously successful, but known for a bombastic style of lawyering. Coverage: WSJ: here; Brian Leiter: here.
Thanks to David Raeker-Jordan for the tip.
Thursday, December 24, 2015
Veterans Law Review
Call for Submissions
Wednesday, December 23, 2015
Earlier this year the Rutgers Center for Risk and Responsibility hosted a conference on the ALI's Restatement of Liability Insurance (Tom Baker and Kyle Logue, Reporters). The Rutgers University Law Review has now published articles from the conference. Torts and liability insurance being intertwined, there is a strong representation of torts scholars in the lineup, including Ken Abraham, Mark Geistfeld, and Victor Schwartz.
Monday, December 21, 2015
Automobile injuries are pervasive in tort law--over half of tort claims and three-quarters of all payouts. They are not seen as interesting, however, and are rarely discussed. A story out of Las Vegas is receiving uncharacteristic attention. A 24-year-old woman, with a 3-year-old in her car, allegedly ran down 38 pedestrians on the Las Vegas Strip. One person has died and 37 others have been injured. Authorities have concluded she acted intentionally.
From the perspective of compensating the victims, these facts reveal a lot about gaps in the system. First, it appears the driver was a recent arrival in Nevada. She was, therefore, subject to Nevada's financial responsibility, and not compulsory automobile insurance, law. In theory, that means she would only have to provide proof of security after causing an accident of $750 or more. Because only New Hampshire operates solely with a financial responsibility law, the driver was likely coming from a state that required some amount of automobile insurance. Of course, she could have been one of the millions of drivers who operate without insurance regardless of the requirement. Moreover, even if she had been a lawful Nevada resident and purchased insurance pursuant to the compulsory automobile insurance law, the limits are $15,000 per person, $30,000 per occurrence, and $10,000 for property damage. In other words, she may have had as little as $30,000 to compensate for 1 death and 37 injuries, many of them serious.
Additionally, because the driver is alleged to have acted intentionally, the intentional acts exclusion, designed to counter moral hazard, will mean there is no liability insurance money available to the victims. Some jurisdictions have ruled the intentional acts exclusion is invalid in the context of a compulsory automobile insurance law, but most have not. Nevada appears to uphold the validity of the exclusion. Thus, the tort cause of action available to victims would be battery and they would not likely be compensated through liability insurance. The odds that the driver has enough assets to compensate for her wrongs are astronomically long.
Friday, December 18, 2015
Thursday, December 17, 2015
The Fordham Law News just published a conversation among four torts professors: Ben Zipursky, Howard Erichson, Michael Martin, and Jed Shugerman. They answer questions about frivolous lawsuits, efficiency, insurance, and more. Check it out here.
Wednesday, December 16, 2015
On Monday, the Court refused to take up the 9th Circuit's dismissal of an Alien Tort Statute and Torture Victim Protection Act case:
The U.S. Supreme Court on Monday declined to revive a human rights lawsuit against Occidental Petroleum Corp and a security contractor that had accused them of complicity in a deadly 1998 bombing by Colombia's military of a village in the South American country.
The court left intact a November 2014 ruling by the 9th U.S. Circuit Court of Appeals stating that victims' families could not pursue claims against Occidental and Florida-based AirScan Inc under two U.S. human rights laws, the Alien Tort Statute and Torture Victims Protection Act.
These cases have been dismissed on a regular basis since the 2013 Kiobel ruling. Reuters has the story.
Tuesday, December 15, 2015
The Institute for Law Teaching and Learning is having a conference entitled Real-World Readiness at Washburn University School of Law in Topeka, Kansas on June 9-11, 2016. A call for proposals is here: Download CFP Summer 2016 Washburn Conference (1)
Monday, December 14, 2015
Doug Rendleman has posted to SSRN The Triumph of Equity Revisited: The Stages of Equitable Discretion. The abstract provides:
Every judge’s discretion includes equitable discretion. For a symposium in Steve Subrin’s honor, this article examines equitable discretion beginning with Steve’s classic article How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective.
In How Equity Conquered Common Law, Steve charged that Equity was amorphous, unfocused, and diffuse. This article analyzes equitable discretion in depth to evaluate Steve’s argument, to discover times when a judge needs equitable discretion, to develop principles of confinement, and to prune excesses.
Equity can be analyzed under three headings: substantive, procedural, and, this article’s main topic, remedy. A judge’s equitable discretion may vary depending on the source of the plaintiff’s substantive right, whether found in constitution, statute, or common law. Equitable discretion includes declining a remedy altogether, choosing the remedy, and shaping the remedy.
This article reviews the origins and development of a judge’s equitable discretion both as a technique to adjust the margins and as an ethical default. It summarizes a lawsuit’s stages and equitable decision points: pleadings, motions, discovery, substantive law, place of trial, interlocutory equitable relief, injunction bond, equitable defenses of laches and unclean hands, jury trial, injunction terms, attorney fees, contempt, stay of an injunction on appeal, collection of a money judgment, and the appeal including the scope of review. It reviews the judge’s equitable discretion for adjudicating its main remedy, an injunction, as well as for other Equitable remedies - receiver, specific performance, constructive trust, salvor, rescission-restitution, legal and equitable restitution, subrogation, and declaratory judgment.
The tension between specific, predictable rules and flexible justice for a discrete dispute is inevitable and universal. This article seconds some of Steve’s points; it favors administering the judge’s equitable discretion with principles, standards, and rules except when the judge must consider context to fashion a specific non-precedential remedy for a lawsuit’s facts and circumstances.
Friday, December 11, 2015
Barbara Peters has published The Warnings Compendium (available at Amazon). Topics include:
Designing warnings, deciding when to warn, adequacy, ambiguity, location, conspicuity, attention getting, signal words, color, permanency, cradle-to-grave, audience, intermediaries, complexity, effectiveness, repetition, neurobiology, continuing duty, channels to warn, and legal doctrines affecting warnings.
Thursday, December 10, 2015
Hart Publishing is delighted to announce the publication of
‘Hepple and Matthews' Tort Law’
by David Howarth, Martin Matthews,
Jonathan Morgan, Janet O'Sullivan and Stelios Tofaris
Associate Editor Bob Hepple
We are pleased to offer you 20% discount on the book
To order online with your 20% discount please click on the link below the title and then click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’
Alternatively, please contact Hart Publishing’s distributor, Macmillan Distribution Limited, by telephone or email (details below) quoting ref: CV7
Hepple and Matthews' Tort Law
Cases and Materials
by David Howarth, Martin Matthews,
Jonathan Morgan, Janet O'Sullivan
and Stelios Tofaris
Consultant Editor Bob Hepple
New to Hart Publishing, this is the seventh edition of the classic casebook on tort, the first of its kind in the UK, and for many years now a bestselling and very popular text for students. This new edition retains all the features that have made it such a popular and respected text, with extensive commentary, questions and notes supplementing the selection of cases and statutes which form the core of the book. Taking a broadly contextual approach the book addresses all the main topics in tort law, is up-to-date, doctrinally sound, stimulating and highly readable.
David Howarth, Fellow of Clare College and Professor of Law and Public Policy, University of Cambridge.
Martin Matthews, Emeritus Fellow of University College, University of Oxford.
Jonathan Morgan, Fellow of Corpus Christi College and Senior Lecturer in Law, University of Cambridge.
Janet O’Sullivan, Fellow of Selwyn College and Senior Lecturer in Law, University of Cambridge.
Stelios Tofaris, Fellow of Girton College and Lecturer in Law, University of Cambridge.
Sir Bob Hepple QC LLD FBA, former Master of Clare College and Emeritus Professor of Law, University of Cambridge.
November 2015 9781849465557 1248pp Hbk RSP:
20% Discount Price: £35.19
If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount, please click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’.
Alternatively, please contact Hart Publishing’s Distributor, ISBS (International Specialized Book Services), by telephone or e-mail and quote reference CV7 when placing your order.
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Wednesday, December 9, 2015
Tuesday, December 8, 2015
Eric Lindenfeld & Jasper Tran have posted to SSRN Strict Liability and 3D-Printed Medical Devices. The abstract provides:
Despite the strong promise that 3D printing holds for the future healthcare, there are critical concerns, and deep unknowns regarding the framework for potential tort liability. And while there has been only a single product liability lawsuit involving a 3D-printed product to date, there are tremendous concerns that 3D printing will present significant safety concerns for the first wave of consumers. While an application of traditional product liability principles may seem to be straightforward, those familiar with the framework realize that an application of those principles to 3D printing is complicated and unique. The question then exists – who is the manufacturer of a product created by a 3D printer as contemplated by the Restatement? Could a hospital be considered a manufacturer of a defective 3D-printed product or as “engaging in the business” of selling the product?
3D printing, in effect, will serve as one of the first technological advances to disrupt the product liability regime first envisioned, and eventually instituted by Justice Traynor. To avoid such an undesirable result, it is imperative that courts make a concerted effort to redefine the boundaries of product liability law to account for new technologies and to make room for liability to those supply chains which do not engage in traditional manufacturing. More specifically, the most realistic approach to the problem would be for courts to uniformly hold software designers responsible for the defects in 3D-printed products. Hospitals, or 3D printing manufacturers, should not be held strictly liable for any defect in the medical product.
Prior case law dealing with the development of product liability generally, and the line of cases which has established the denial of strict, product liability against software designers, support strict liability against software designers. Other circuit courts’ opinions that entertained the idea of holding software designers liable for defects in their products have had it correct. Ultimately, an imposition of strict liability against designers of software does not necessarily run against any of the policy considerations of strict liability and apportionment of fault, and will place the burden upon those who are in the best position to prevent the injury in the first place.
Monday, December 7, 2015
Nicholas McBride (Cambridge) has posted to SSRN The Humanity of Private Law-Chapter1. Building Blocks. The abstract provides:
In this draft of the first substantive chapter from The Humanity of Private Law, I set out a (more or less) complete grammar of private law, explaining how fundamental private law concepts like right, duty, obligation, wrong, liability, power, disability, interest, and property relate to each other, while noting the occasions when the ways in which these concepts are used will be affected by what account of private law one endorses – so that, for example, the notion of someone having a ‘right to’ something is indispensable under a Kantian account of private law, while non-Kantians need not make use of such an idea and should not, if they want to avoid confusion.
Among the cases discussed in this chapter are Hedley Byrne v Heller, Spartan Steel & Alloys Ltd v Martin, Bradford v Pickles, Armory v Delamirie, Vincent v Lake Erie, and Rylands v Fletcher. Among the issues discussed are: (1) the nature of legal duties, and what makes a particular legal duty a private law duty; (2) the nature of the rights set out in the European Convention on Human Rights; (3) the distinctions between different kinds of private law liabilities, and private law powers; (4) whether there is a duty to pay damages to the victim of one’s wrong, or make restitution to someone at whose expense you have been unjustly enriched; (5) the proper analysis of awards of damages in lieu of an injunction; and (6) the nature of property, interests in property, and rights arising out of having an interest in property.
Friday, December 4, 2015
From Roger McEowen (Iowa State Center for Agricultural Law and Taxation):
The parties are friends and neighbors and are both farmers. The plaintiff has raised various types of livestock, but the summer of 2012 was his first time raising sheep. The defendant had bred sheep for over 30 years. On occasion, the plaintiff allowed the defendant to keep livestock on the plaintiff's property. In the summer of 2012, the parties went together to a livestock yard where the defendant bought a lamb ram to replace his existing ram. The ram showed no vicious tendencies. After ewes had been put in the pasture with the ram, the plaintiff was butted repeatedly by the ram as he attempted to turn on sprinklers in the pasture. At the time of the incident, the plaintiff was 82 years old. He suffered a concussion, five broken ribs, a broken sternum and a broken shoulder. The plaintiff was hospitalized for 16 days. The plaintiff sued based solely on a theory of gender based strict liability irrespective of whether or not the defendant knew the ram was abnormally dangerous. The trial court granted summary judgment for the defendant. On appeal, the court affirmed. The appellate court noted that the standard of care under state (WA) law is ordinary care if the animal is not inclined to commit mischief, unless it is shown that the animal's owner knew that the animal had vicious tendencies. In that event, strict liability is the rule. The court noted that this approach was consistent with Restatement (Second) of Torts Secs. 509 and 518. Under Restatement (Second) of Torts Sec. 509 comment e, rams have not historically been regarded as being inherently dangerous animals, but comment 23 of the Restatement (Third) of Torts propose a possible gender-or-breed-based modification of the general rule treating domestic animals as not excessively dangerous. The court, however, referenced the policy reasons for not holding owners of male domestic livestock to a strict liability standard. In addition, the court noted that the legislature could modify the law and had already done so with respect to dogs in certain situations. Rhodes v. MacHugh, No. 32509-1-III, 2015 Wash. App. LEXIS 2687 (Wash. Ct. App. Nov. 3, 2015).
Thursday, December 3, 2015
Philadelphia hospitals started running simulations of high-risk incidents, such as child birth, and the results are encouraging:
Such training has helped Penn cut malpractice costs by 26 percent since 2011, to $92.2 million in the year ended June 30, even as revenue has risen 28 percent, to $4.3 billion.
Temple University Health System has logged an even steeper decline in liability costs, to $11.3 million in fiscal 2015 from $48.1 million in 2011, records show.
The Philadelphia Inquirer has the story.