TortsProf Blog

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Widener Commonwealth Law School

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Wednesday, July 15, 2015

CCR Interview with Valerie Hans

Corporate Crime Reporter has an interview with Cornell tortsprof Valerie Hans, who discusses the book she and Jennifer Robbennolt are writing, The Psychology of Tort Law.  A sample:

How does looking at tort law from a psychology lens differ from looking at it through an economic lens?

“We look at human beings as they actually are, not as hypothetical economic humans,” Hans told Corporate Crime Reporter in an interview last week. “We are human. We have foibles. We take short cuts in our decision making. We rely on heuristics. We pay more attention to the here and now as opposed to what might happen in the future. We commingle things that should be separate. We are decent decision makers but we are fallible decision makers. Psychology brings to tort law the ways in which actual real world decision making affects the operation of tort law.”

July 15, 2015 in Books, Science | Permalink | Comments (0)

Monday, July 6, 2015

Summer Program in Venice

I have spent the last several weeks teaching in Venice; I'm home now and blogging should be much more consistent again. 

I taught a class entitled "Tort Law in Global Perspective," using Julie Davies and Paul Hayden's Global Issues in Tort Law.  I liked the book and I believe my students did as well.  It is relatively cheap and not physically heavy.  It provides a good overview of doctrinal differences among countries in many major areas of tort law.  It covers the Alien Tort Statute, Torture Victim Protection Act, Anti-Terrorism Act, Foreign Sovereign Immunities Act, and Warsaw Convention.  It was a great experience for me because I have a better understanding of comparative tort law.  And, of course, I got to spend several weeks in Venice.     

July 6, 2015 in Books, Teaching Torts, Travel | Permalink | Comments (0)

Thursday, May 28, 2015

OT: Davidson Publishes "Virginia Dawning"

It's summer and literature week here at TortsProf.  Yesterday I posted about Martin Clark's "Jezebel Remedy," and today I'm pushing another novel from my home state of Virginia.  Charlottesville lawyer John Davidson has just published his debut novel, "Virginia Dawning."  Back in 2012, John won a short story contest judged by John Grisham.  "Virginia Dawning" is receiving strong early reviews; the blurb:

One spring morning in the gentle hills of Virginia, when Dr. Luke Andrews kisses his wife, Sarah, goodbye for the day and drives to his small-town medical practice, he unwittingly leads their young family into the hands of Hiram Legrand, a dangerous fugitive from the law.

Filled with shocking twists, Virginia Dawning is a fast-paced thriller that brings one family face-to-face with pure evil. Told in a rare dual first-person narrative by Luke and Sarah Andrews, a young couple, this suspenseful tale offers surprises at every turn while compelling readers to consider the true meaning of hope and love.

Order here.

May 28, 2015 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 27, 2015

OT: Martin Clark's "Jezebel Remedy" Available for Pre-Order

Virginia Circuit Judge Martin Clark is about to publish his fourth novel, "The Jezebel Remedy."  I reviewed Clark's third novel, "The Legal Limit," back in 2009.  I'm very excited about the next one, due out on June 9th.  From the blurb:

Lisa and Joe Stone, married for twenty years and partners in their small law firm in Henry County, Virginia, handle less-than-glamorous cases, whether domestic disputes, personal injury settlements, or never-ending complaints from their cantankerous client Lettie VanSandt (“eccentric” by some accounts, “certifiable” by others).  When Lettie dies in a freakish fire, the Stones think it’s certainly possible that she was cooking meth at her trailer. But details soon emerge that lead them to question how “accidental” her demise actually was, and settling her peculiar estate becomes endlessly complicated.

Before long, the Stones find themselves entangled in a corporate conspiracy that will require all their legal skills—not to mention some difficult ethical choices—for them to survive. Meanwhile, Lisa is desperately trying to shield Joe from a secret, dreadful error that she would give anything to erase, even as his career—and her own—hangs in the balance.  In The Jezebel Remedy, Clark gives us a stunning portrait of a marriage, an intricate tour of the legal system, and a relentlessly entertaining story that is full of inventions, shocks and understanding.

Order here.

May 27, 2015 in Books | Permalink | Comments (0) | TrackBack (0)

Saturday, February 21, 2015

Defences in Tort by Dyson, Goudkamp, & Wilmot-Smith

Defences in Tort

Edited by Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith 

This book is the first in a series of essay collections on defences in private law. It addresses defences to liability arising in tort. The essays range from those adopting a primarily doctrinal approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of tort law as a whole. A number of the essays also draw upon concepts and literature that have been developed mainly in relation to the criminal law and consider their application to tort law. The essays make several original contributions to this complex, important but neglected field of academic enquiry.

The Editors

Andrew Dyson is an Assistant Professor in Private Law at the London School of Economics and Political Science.

James Goudkamp is a Fellow of Keble College, Oxford and an Associate Professor in the Oxford Law Faculty.

Frederick Wilmot-Smith is a Prize Fellow at All Souls College, Oxford and Lecturer in Law at Balliol College.

Book Details

February 2015    452pp   Hbk   9781849465267    RSP: £75 / US $150

20% DISCOUNT PRICE: £60 / US$120

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US Website - http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849465267

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’. 

UK, EU and ROW Website  - http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465267

February 21, 2015 in Books | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2015

Barnes & Burke on How Policy Shapes Politics Regarding Compensation

Jeb Barnes (USC-Political Science) and Thomas Burke (Wellesley-Political Science) have published How Policy Shapes Politics:  Rights, Courts, Litigation, and the Struggle Over Injury Compensation

How Policy Shapes Politics analyzes the politics of injury compensation in the United States, a field in which judicialized policies operate side-by-side with bureaucratized social insurance programs. The authors conclude that the choice between judicialized and bureaucratized injury compensation policies can have powerful political consequences.  

 
Litigation, by dividing social interests into victims and villains, winners and losers, generates a fractious, chaotic politics in which even seeming allies-business and professional groups on one side, injured victims on the other-can become divided amongst themselves. By contrast, social insurance programs that compensate for injury bring social interests together, narrowing the scope of conflict and over time producing a more technocratic politics. 

By comparing the political trajectories of different types of policies, some more court-centered, others less so, the authors probe the consequences of arguably one of the most significant developments in post-World War II government, the increasingly prominent role of courts, litigation, and legal rights in politics.

February 20, 2015 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 4, 2014

Shmueli on Tort, Contract & Family Law

On October 23rd, Widener Law had the pleasure of hosting Benjamin Shmueli as he presented "Tort and Family Law:  Civil Actions for Acts that are Valid According to Religious Family Law but Harm the Rights of Spouses."  Shmueli is Senior Lecturer (Associate Professor) at Bar-Ilan University in Israel and, from 2013-2015, Senior Research Scholar at the Yale Law School.

Shmueli's engaging presentation focused on two case studies. Refusal to grant a get—a Jewish bill of
divorcein Jewish law and divorcing a wife unilaterally and against her will in Shari'a law (talaq/ repudiation) are practices permitted—even if not desirable—by religious law.  Shmueli argues that tort and contract law should be integrated, sensitively, with religious law.  His justifications:  a property rules/liability rules framework, legal pluralism, and justice-based considerations.  I am looking forward to the full book.  A short prospectus is here:  Download Tort_and_Family_Law-Short_Prospectus (1) 

November 4, 2014 in Books, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

Oberdiek's Introduction to Philosophical Foundations of the Law of Torts

John Oberdiek (Rutgers-Camden) has posted to SSRN Introduction:  Philosophical Foundations of the Law of Torts.  The abstract provides:

This Introduction to Philosophical Foundations of the Law of Torts (John Oberdiek, ed., Oxford University Press, 2014) provides a brief history of the discipline of tort theory, maps out current debates in the field, and introduces the volume's nineteen chapters.  Along the way, this Introduction addresses many of the core problems in the philosophy of tort law, draws connections between them.

September 16, 2014 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 18, 2014

Advanced Torts Casebook in the CAP Context and Practice Series

Many of you know that Carolina Academic Press launched the Context and Practice Series as a way for law profs to implement the ideas in the Carnegie Report and Best Practices.  I've used Michael Hunter Schwartz's and Denise Riebe's Contracts casebook and found it very student-friendly.  Now Alex Long (Tennessee) and Meredith Duncan (Houston) are publishing Advanced Torts in that series.  From the CAP blurb:

Advanced Torts:  A Context and Practice Casebook
by Alex B. Long, Meredith J. Duncan

           Advanced Torts focuses primarily on tort theories that are not covered in significant detail in the standard first-semester Torts course. However, the book explores these topics with a particular emphasis on how they apply to lawyers engaged in the practice of law. Thus, students learn about defamation, interference with contractual relations, etc. while reading cases and working through problems that frequently involve lawyers as litigants. Given the reality that a lawyer is more likely to be sued for malpractice or some related theory during the lawyer’s career than it is the lawyer will face professional discipline, the subject matter of the book should resonate with students in a way that most Advanced Torts books do not.
           The book covers the theories of liability often addressed in Advanced Torts courses, and some of the cases do not involve lawyers as parties. In this sense, the book is general enough that it can be used in any Advanced Torts class. However, it also includes material that should be of special concern for lawyers, including several chapters devoted to legal malpractice. Thus, it could be used in an Advanced Torts class as well as a stand-alone class devoted to legal malpractice and related theories of liability. Throughout the book, the authors make a conscious effort to help aspiring lawyers develop their professional identities as they learn the doctrine.

Alex states that he (along23@utk.edu) and Meredith (mjduncan@central.uh.edu) are delighted to answer questions.

--CJR

March 18, 2014 in Books, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 20, 2013

Medical Malpractice and Compensation in Global Perspective

Medical Malpractice and Compensation in Global Perspective (edited by Ken Oliphant & Richard W Wright). De Gruyter, Berlin/Boston, 2013. xviii + 573 pages. ISBN 978-3-11-027023-5. €149,95 (hardback).
 
From the marketing materials:
 
This book examines the issues of medical malpractice and compensation for medical injuries in a uniquely global context, demonstrating the breadth of approaches currently taken around the world and revealing key areas of tension and the likely direction of future developments. The papers are drawn from a symposium held in Vienna in December 2010 which drew together legal experts from 14 national or regional systems across six continents. The collection is framed by a short introduction by the editors and a concluding chapter of comparative observations by Ken Oliphant.
 
The legal systems covered are Austria, Brazil, Canada, China, France, Germany, Italy, Japan, New Zealand, Poland, Scandinavia, South Africa, the United Kingdom and the United States.
 
--CJR

November 20, 2013 in Books, Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 6, 2013

Research Handbook on the Economics of Torts

Edward Elgar Publishing announces the publication, later this month, of Research Handbook on the Economics of Torts, edited by Jennifer Arlen (NYU).  From the blurb:

Description
‘An indispensable resource for anyone interested in economic analysis of tort law, and tort law period. Professor Arlen has assembled an academic all-star team, and its members have prepared up-to-date, high quality, and accessible treatments of centrally important topics ranging from causation and damages to vicarious liability and insurance to tort reform and tort alternatives. With respect to the analysis of tort law through the lenses of empirical and microeconomic analysis, this is now the go-to volume.’
– John Goldberg, Harvard Law School, US

Contents
Contributors include: J. Arlen, L. Babcock, T. Baker, R. Cooter, A. Daughety, D. DePianto, S.S. Diamond, T. Eisenberg, R. Epstein, J. Furgeson, M. Geistfeld, M. Grady, M. Heise, E. Helland, D. Hensler, K.N. Hylton, L. Kornhauser, R. Kraakman, G. Miller, J. Reinganum, J. Salerno, S.A. Seabury, C. Sharkey, P. Siegelman, E. Talley, M. Trebilcock, T. Ulen, P.-E. Veel, W.K. Viscusi, A.L. Wickelgren, K. Zeiler.

Nov 2013  680 pp  Hardback  978 1 84844 118 7  £180.00 / $285.00 

35% discount price £117.00 / $185.00

To order (or if you have any questions), please email
elgarsales@e-elgar.com (N&S America) or sales@e-elgar.co.uk (Europe & ROW)

To order online (N&S America)

Go to www.e-elgar.com once the book is in your shopping basket, enter LPBN35 in the special discount code box after you have entered your delivery details.

To order online (Europe & ROW)

Go to www.e-elgar.co.uk once the book is in your shopping basket, enter LPBN35 in the special discount code box after you have entered your delivery details.

Offer ends: 31st December 2013

--CJR

November 6, 2013 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Tort Law: Challenging Orthodoxy

From Hart Publishing comes a new torts book and a discount for our readers:

Tort Law: Challenging Orthodoxy 

Edited by Stephen GA Pitel, Jason W Neyers and Erika Chamberlain

In this book leading scholars from the United Kingdom, the United States and Australia challenge established common law rules and suggest new approaches to both old and emerging problems in tort law. Some of the chapters consider broad issues such as the importance of flexibility over certainty in tort law, connections between tort law and human flourishing and the indirect effects of changes in tort law. Other chapters engage more specific topics including the role of vindication in tort law, the relationship between criminal law and tort law, the use of epidemiological evidence in analysing causation, accessory liability in tort law, the role of malice in intentional torts and the role of statutes in tort law. They propose new approaches to contributory negligence, emotional distress, loss of a chance, damages for nuisance, the tort of conspiracy and vicarious liability.  

The chapters in this book were originally presented at the Sixth Biennial Conference on the Law of Obligations at Western University in London, Ontario in July 2012. They will be highly useful to lawyers, judges and scholars across the common law world.

 

October 2013    516pp   Hbk   9781849464710  RSP: £75 / €97.50 / US$150

20% DISCOUNT PRICE: £60 / €78 / US$120

Order Online US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US Website - http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849464710

 

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW Website  - http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849464710

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530

Fax Number: 01865 510 710

Website: http://www.hartpub.co.uk

- SBS

October 22, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Beever on "The Law of Private Nuisance"

BeeverFrom Hart Publishing comes news of a new title of interest to our TortsProf readers:

The Law of Private Nuisance  By Allan Beever

 "It is said that a nuisance is an interference with the use and enjoyment of land. This definition is typically unhelpful. While a nuisance must fit this account, it is plain that not all such interferences are legal nuisances. Thus, analysis of this area of the law begins with a definition far too broad for its subject matter, forcing the analyst to find more or less arbitrary ways of cutting back on potential liability. Tort law is plagued by this kind of approach. 

 In the law of nuisance, today's preferred method of cutting back is to employ the notion of reasonableness. No one seems to know quite what 'reasonableness' means in this context, however. This is because, in fact, it does not mean anything. The notion is no more than the immediately recognisable symptom of our inadequate comprehension of the law.

 This book expounds a new understanding of the law of nuisance, an understanding that presents the law in a coherent and systematic fashion. It advances a single, central suggestion: that the law of nuisance is the method that the common law utilises for prioritising property rights so that conflicts between uses of property can be resolved."

 

Please click here to view the table of contents for this book 

 

Sept 2013   180pp   Hbk   9781849465069  RSP: £35 / €45.50

Discount Price: £28 / €36.40 

Hart Publishing is delighted to offer TortsProf readers a  20% discount.

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849465069

 

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/books/details.asp?ISBN=9781849465069

 

If you have any questions please contact Hart Publishing Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW Telephone Number: 01865 517 530 Fax Number: 01865 510 710

Website: www.hartpub.co.uk

Hart Publishing Ltd. is registered in England No. 3307205

 

- SBS

September 30, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 18, 2013

Calnan: The Right to Civil Defense in Torts

...has been released by Carolina Academic Press.  He credits guest posts on this blog as part of the formative process of the book.  Available here.

--CJR

September 18, 2013 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Simons on Consent, Assumption of Risk, and Victim Negligence

Ken Simons (Boston University) has posted to SSRN Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence, a chapter in a forthcoming book edited by John Oberdiek.  The abstract provides:

This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim negligence.  Is consent conceptually and normatively distinguishable from assumption of risk?  Yes and no: they differ in some respects, but share a common core.  Are they equally valid bases for precluding, and not merely reducing, recovery?  Yes: court justifiably invoke consent more often than assumption of risk, not because the doctrines differ in principle, but because of factual differences between the most common scenarios in which each arises.  In paradigm consent scenarios, the two parties mutually benefit from the interaction, or the alleged tort-feasor justifiably relies on the other’s assent, but these features are often absent in assumption of risk scenarios.

--CJR

September 12, 2013 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 3, 2013

"Iniuria and the Common Law"

Hart Publishing has just published "Iniuria and the Common Law," edited by Eric Descheemaeker and Helen Scott.  The book description states:

The delict of iniuria is among the most sophisticated products of the Roman legal tradition. The original focus of the delict was assault, although iniuria-literally a wrong or unlawful act-indicated a very wide potential scope. Yet it quickly grew to include sexual harassment and defamation, and by the first century CE it had been re-oriented around the concept of contumelia so as to incorporate a range of new wrongs, including insult and invasion of privacy. In truth, it now comprised all attacks on personality. 

It is the Roman delict of iniuria which forms the foundation of both the South African and-more controversially-Scots laws of injuries to personality. On the other hand, iniuria is a concept formally alien to English law. But as its title suggests, this book of essays is representative of a species of legal scholarship best described as 'oxymoronic comparative law', employing a concept peculiar to one legal tradition in order to interrogate another where, apparently, it does not belong. Addressing a series of doctrinal puzzles within the law of assault, defamation and breach of privacy, it considers in what respects the Roman delict of iniuria overlaps with its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and the degree to which the Roman proto-delict points the way to future developments in each of these three legal systems.

 

Hart is offering our readers a 20% discount on the book:

August 2013   276pp   Hbk   9781849465038  RSP: £50 / €65 / US$100

20% DISCOUNT PRICE: £40 / €52 / US$80

Order Online in the US

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849465038

 

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849465038

 

If you have any questions please contact Hart Publishing

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW

Telephone Number: 01865 517 530

Fax Number: 01865 510 710

Website: http://www.hartpub.co.uk

- SBS

 

 

 

September 3, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

New Edition of English Private Law

Oxford University Press has published a new edition of English Private Law, edited by Andrew Burroughs.  The attached flyer provides a 20% discount: Download Burrows - English private lawflyer

- SBS

August 26, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Monday, August 5, 2013

"Tort Law Defences" by James Goudkamp

James Goudkamp (Oxford Law) has published Tort Law Defences.  The book description provides:

The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified.

Hart Publishing is offering a 20% discount for our readers. From the publisher:

RSP: £60 / €78 / US$120  20% DISCOUNT PRICE: £48 / €62.40 / US$96

Order Online in the US

If you would like to place an order, you can do so through the Hart Publishing website (link below). To receive the discount please mention ref: ‘TORTSPROFBLOG’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.

US website: http://www.hartpublishingusa.com/books/details.asp?ISBN=9781849462914

Order Online in the UK, EU and ROW

If you would like to place an order you can do so through the Hart Publishing website (link below). To receive the discount please type the reference ‘TORTSPROFBLOG’ in the voucher code field and click ‘apply’.

UK, EU and ROW website: http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849462914

If you have any questions please contact Hart Publishing.

- SBS

 

 

August 5, 2013 in Books | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 3, 2013

The Concise Restatement of Torts, Third Edition

Ellen Bublick (Arizona) has compiled The Concise Restatement of Torts (3d ed.) for the ALI.  The book draws on 5 projects from the Restatement (Third) of Torts and is organized like many first-year casebooks.  The Concise Restatement of Torts is under 400 pages, was published on earlier this week, and is available through ALI here.

I have never used a supplement in my Torts course.  I have recommended several secondary sources (and will continue to do so).  However, I taught Contracts for the first time last year and found a supplement useful in that course.  Based on that experience, I decided a supplement would help my Torts students as well.  I have been looking around for the right Torts supplement, and this is it.  Virtually every topic I cover in my two-semester course is in The Concise Restatement of Torts.

--CJR

April 3, 2013 in Books, Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Friday, March 15, 2013

An Injury Law Constitution

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.

--CJR

March 15, 2013 in Books, Conferences | Permalink | Comments (0) | TrackBack (0)