Monday, October 31, 2016
Don Gifford was named the Jacob A. France Professor of Torts at the University of Maryland Carey School of Law on October 27, 2016. The title had been held by Oscar Gray until his retirement, and Oscar remains the Jacob A. France Professor of Torts Emeritus. Don delivered a lecture entitled "The Stubborn Survival of the Steam-Locomotive Compensation System in the Century of Driverless Cars." He argued that changes in technology and the impact of technological changes on the economy were the most important determinants of change in tort law. He then explored why there was so little change in the fundamental substantive principles of tort law during the twentieth century and why the tort system had generally prevailed over attempts to enact alternative compensation systems.
Friday, October 28, 2016
The Washington Post ran a story this week about using race and gender to calculate damages. (See prior coverage here.) Among others, the story quotes Martha Chamallas and Jenny Wriggins. Here's a sample:
The practice of using race and gender to determine personal injury damages, which dates back at least a century, has produced some striking results.
The case of the male fetus and 6-year-old girl came in 1996, after a collision between a postal truck and a car left the car’s passengers – the girl and her godmother, a pregnant 33-year-old – dead.
In the case, which took place in a federal court in the Southern District of Georgia, both sides agreed the male fetus’s award to be higher than the girl’s, largely because of the difference in how much they were expected to earn over their lifetime, commonly known as “future lost income.” That’s despite testimony that the girl “exhibited a level of intellectual ability and behavior that surpassed that of most other students” and had a college fund in the works. The fetus’s mother had not completed college and the father was unknown, according to court records.
Thursday, October 27, 2016
Wednesday, October 26, 2016
Hillary Farber has posted to SSRN Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones. The abstract provides:
The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.
We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new technology, drones (or unmanned aircraft systems as they are commonly referred) are outpacing the law. Controversies over whether a drone can hover above one’s property, capture images of those on the ground without consent, destroy a drone that is invading one's privacy are ripe legal issues. The question being asked by lawmakers, practitioners, journalists, and the general public is whether existing laws provide adequate remedies or whether this technology falls through a legal gap? This article sets out to answer that question at a time when lawmakers are feverishly proposing drone specific legislation, possibly duplicating laws already in place.
At present, 45 states have considered legislation seeking to regulate drones. Twenty-five states have passed laws that limit the use of drones. The majority of these laws include civil causes of action for capturing images and recordings of individuals by a drone without consent. Before more incidents ripen in to lawsuits, we need to evaluate whether our long-standing common law torts - trespass, nuisance, intrusion upon seclusion, and publication of private facts, offer remedies of equal or greater value than the drone specific legislation being considered. To the extent that common law torts fall short of providing adequate remedies at law, understanding their shortcomings will strengthen future drone legislation.
Tuesday, October 25, 2016
According to data from the Administrative Office of Pennsylvania Courts covering 2012-2014, Lackawanna County has 3.2 filings for every 1,000 residents, second in the state only to Philadelphia. Why so high? Lawyers and commentators discuss advertising, the number of lawyers, the presence of multiple courthouses, the presence of governmental organizations with in-house staff, the proximity of major highways, and the lack of tort reform. The Times-Tribune has the story.
Friday, October 21, 2016
In April, the Third Circuit ruled that the FAA does not preempt state law standards in aviation products liability; FAA standards do not eliminate the possibility of a design defect:
The Appeals Court turned to a federal case, Abdullah v. American Airlines, in which the FAA was found to have jurisdiction in the “field of aviation safety.” But the Appeals Court determined that applied to in-air operational safety issues and “does not include product manufacture and design, which continues to be governed by state tort law.” The court further noted that courts “have consistently applied state law to tort claims arising from airplane crashes.”
The case is being appealed to the Supreme Court. AIN Online has details.
Thursday, October 20, 2016
Lisa Rickard & Mark Behrens have a piece in Law360 arguing for disclosure regarding 3rd-party litigation funding. The conclusion:
The U.S. Chamber Institute for Legal Reform and others have urged the Advisory Committee on Civil Rules to adopt an amendment to Rule 26(a)(1)(A) of the Federal Rules of Civil Procedure that would require disclosure of third-party litigation funding at the outset of a lawsuit. So far, the committee has taken a “wait and see” approach. The Catch-22 is that, because third-party funding of lawsuits occurs in secrecy, the proof needed to support reform is elusive.
Federal judges in individual cases, particularly those managing multidistrict litigations, have the power to bring about transparency regarding the presence of third-party litigation funders in their courts. They should make all case management orders provide for the disclosure of third-party litigation funding. This would improve justice in those courts and give the Advisory Committee the data it needs to determine how best to bring third-party litigation funding into the sunlight.
Wednesday, October 19, 2016
Tuesday, October 18, 2016
Avi Dorfman has posted to SSRN Negligence and Accommodation. The abstract provides:
Whereas the Restatement of Torts as well as leading economic and justice-based approaches to the explanation of the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively-fixed amount of care, whereas plaintiffs are for the most part assessed by reference to a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms of the interaction between them. This way of proceeding resonates well with a powerful egalitarian idea of accommodating, rather than overlooking, relevant differences—that is, treating the plaintiff and the defendant differently is necessary for the duty of reasonable care to give effect to the qualitative difference between the life and limb of the former, on the one hand, and the autonomy of the latter, on the other. Asymmetric assessment of due care, I argue, is the doctrinal metric by which the law determines what it is for the plaintiff and the defendant to relate as equals given that difference, which is to say to relate as substantively equals.
Monday, October 17, 2016
Bruce Kaufman at Bloomberg has just completed a 4-part series on amusement park injuries. The links are below:
Sunday, October 16, 2016
A Connecticut judge dismissed the case filed by parents of children killed at Sandy Hook Elementary School against gun manufacturers. The parents alleged negligent entrustment in an attempt to get around the Protection of Lawful Commerce in Arms Act. The judge ruled the plaintiffs did not meet the exception. WaPo has the story.
Friday, October 14, 2016
Alberto Galasso (Toronto-Strategic Management) & Hong Luo (Harvard Business School) have published Tort Reform and Innovation. The abstract provides:
Current academic and policy debates focus on the impact of tort reforms on physicians’ behavior and medical costs. This paper examines whether these reforms also affect incentives to develop new technologies. We find that, on average, laws that limit the liability exposure of healthcare providers are associated with a significant reduction in medical device patenting and that the effect is predominantly driven by innovators located in the states passing the reforms. Tort laws have the strongest impact in medical fields in which the probability of facing a malpractice claim is the largest, and they do not seem to affect the amount of new technologies of the highest and lowest quality. Our results underscore the importance of considering dynamic effects in the economic analysis of tort laws.
Download here: Download GalassoHong_27Sept16 (1)
Thursday, October 13, 2016
The Arkansas Supreme Court has just killed the ballot initiative to amend the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. The court ruled the ballot title left critical elements, including "noneconomic damages", undefined. Arkansas Times has the story.
At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort: deceptive deprivation of core legal rights. Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
Corporate Crime Reporter has the story.
Tuesday, October 11, 2016
Alex Stein has posted to SSRN The Domain of Torts. The abstract provides:
This Article advances a novel positive theory of the law of torts that grows out of a careful reading of the caselaw. My core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since the operation of the doctrines that determine individuals’ liability for accidents — negligence, causation and damage — is universally believed to be driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the caselaw, as I repeatedly demonstrate in the Article.
Specifically, I show that our tort system operates in two parallel modes — private and public — rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged tortfeasor. If the benefit sought by the tortfeasor is purely private, she will be held liable for the harm resulting from her actions whenever she exposes her victim to a nonreciprocal risk. The tort system never allows actors to inflict harm on others when the benefit they seek to derive from their activity is purely private, no matter how significant that private benefit is relative to the victim’s harm. The system consequently does not hesitate to discourage the production of private benefits even when they are economically more valuable than the victim’s safety. That is, in cases of private benefit tort law excludes cost-benefit analysis in favor of the reciprocity and equality principles. When the benefit that accompanies the harm-causing activity is public, by contrast, tort law adopts a strictly utilitarian approach and focuses exclusively on minimizing the cost of accidents and the cost of avoiding accidents as a total sum. Liability in such cases is imposed based on the famous Learned Hand formula (and similar formulations). Accordingly, if the benefit from the harm-causing activity is greater than the expected harm and precautions are too costly, no liability will be imposed. The consequent reduction in the victim’s protection is counterweighted by society’s need not to chill the production of public benefits that the victim enjoys on equal terms with all other members of her community.
This insight has far-reaching implications for tort doctrine and theory. Contemporary scholarly debates about our tort system’s goals interpret the system as promoting fairness and corrective justice or, alternatively, economic efficiency. I demonstrate, however, that this dichotomous view is fundamentally mistaken. Careful analysis of the caselaw reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode, and that when the system switches to the public mode it aims at achieving economic balance between victims’ safety and the production of public benefits. My analysis also demonstrates that tort doctrine is best understood as accident law because it focuses predominantly on individuals’ mutually unwanted interactions, identified as accidents, as opposed to mutually wanted and coercive interactions regulated, respectively, by contract law and criminal law. As I explain in this Article, switches between these regulatory regimes, and between torts and regulatory laws, only occur as a result of doctrinal migrations.
Monday, October 10, 2016
In November, the people of Arkansas are supposed to vote on a ballot measure amending the state constitution to allow the legislature in medical lawsuits to set a cap on noneconomic damages of at least $250,000 and limit attorney's fees to one-third of the recovery. A special judge has determined there are flaws in the petition process; nursing home employees allegedly solicited signatures from nursing home residents. Family members of the residents question whether the residents were able to understand what they were signing. The issue now goes to the state supreme court. A big issue, however, is whether some of the judges should recuse themselves. The only member of the court not to receive campaign contributions from the nursing home industry is the chief justice. Arkansasmatters.com has the story.
Friday, October 7, 2016
A recent Washington Court of Appeals decision expanded the scope of duty owed by professionals designing structures. The court held an engineer's duty to developers and property owners includes "the prevention of safety risks" even if no personal injury or property damage has occurred. Ross Siler at Lexology has details.
Wednesday, October 5, 2016
South Dakota physician Lars Aanning admits he lied to protect a colleague in a med mal case 15 years ago. He then takes it a step further:
“In essence, no supporting testimony from a defendant physician’s colleagues can ever be deemed trustworthy, truthful or true—because those colleagues have essentially sworn an oath of loyalty to each other” in their employment contract, Aanning wrote.
The ABA Journal has the story.
Tuesday, October 4, 2016
Monday, October 3, 2016
Jennifer Arlen has posted to SSRN Economic Analysis of Tort Liability for an Imperfect World. The abstract provides:
Tort liability generally is not justified by the presence of risk-producing activities alone. It tends to be justified by the combination of risk-producing activities and information costs that impede alternative solutions, such as private contracting or ex ante regulation. The observation that tort liability is justified by information costs impacts economic analysis of tort liability. It highlights that economic analysis of optimal tort rules should employ economic models where information is costly. In addition, it reveals the goals of optimal tort liability often should include providing optimal incentives to risk-imposers and others to invest in information needed to identify and provide optimal level of care. This chapter presents economic analysis of optimal tort liability focusing on the use of liability where information is costly. It shows that incorporating endogenous costly information alters tort liability’s optimal structure and incentive effects, both as applied to individual injurers and risk-imposers operating within organizations.