Friday, March 15, 2013
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.
Thursday, March 14, 2013
Today and tomorrow the Searle Center at Northwestern is hosting a conference on Marshall Shapo's An Injury Law Constitution. The format is interesting; there is a group of about 35 having a roundtable discussion instead of panelists. There are 4 sessions and each has a commentator to begin the discussion.
Session One: Introduction and Chapter One (Bob Rabin)
Session Two: Chapters Two and Seven (on Power) (Cathy Sharkey)
Session Three: Chapter Nine (on Rationales) (Anita Bernstein)
Session Four: Conclusion (Jacqueline Zins, Former Deputy Special Master of the 9/11 Fund)
I plan to blog the sessions (though probably not as they occur), so stay tuned.
Thursday, November 22, 2012
Ken Oliphant & Gerhard Wagner have published Employers' Liability and Workers' Compensation. The abstract provides:
The European Centre of Tort and Insurance Law (ECTIL) with support by the Institute for European Tort Law embarked already in 2009 on a Comparative Project on Employers' Liability and Workers' Compensation. The study - conducted in English and led by Ken Oliphant (Institute for European Tort Law, Vienna) and Gerhard Wagner (University of Bonn) - will consist of reports from Austria, Australia, Denmark, France, Germany, Italy, Japan, the Netherlands, Poland, Rumania, the United States of America and the United Kingdom. With regard to content the study will focus on the compensation of occupational diseases and accidents. Issues like discrimination, moral or sexual harassment and other damages claims of employees against their employer will be dealt with in the reports for countries where these issues are seen as a part of Employers' Liability (e.g. UK, USA), but not in detail. Major aspects of the reports will be a description of different existing compensation schemes, interactions between Employers' Liability and Workers' Compensation, a comparison of both systems and their respective efficiency.
Thursday, November 8, 2012
Ernest Weinrib further develops his concept of corrective justice in a new Oxford University Press book entitled Corrective Justice. The abstract provides:
Private law governs our most pervasive relationships with other people: the wrongs we do to one another, the property we own and exclude from others' use, the contracts we make and break, and the benefits realized at another's expense that we cannot justly retain. The major rules of private law are well known, but how they are organized, explained, and justified is a matter of fierce debate by lawyers, economists, and philosophers.
Ernest Weinrib made a seminal contribution to the understanding of private law with his first book, The Idea of Private Law. In it, he argued that there is a special morality intrinsic to private law: the morality of corrective justice. By understanding the nature of corrective justice we understand the purpose of private law - which is simply to be private law.
In this new book Weinrib takes up and develops his account of corrective justice, its nature, and its role in understanding the law. He begins by setting out the conceptual components of corrective justice, drawing a model of a moral relationship between two equals and the rights and duties that exist between them. He then explains the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract, and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor.
Combining legal and philosophical analysis, Corrective Justice integrates a concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Alongside the revised edition of The Idea of Private Law, it will be essential reading for all academics, lawyers, and students engaged in understanding the foundations of private law.
Thursday, September 27, 2012
Carolina Academic Press is publishing Products Liability Law: Cases, Commentary, and Conundra by Tim Kaye. Here is the blurb:
Products liability law is often confusing because it is in a state of constant flux as it confronts a number of challenges. Some such challenges are well known, such as the battle over the comparative merits of the Second and Third Restatements of Torts. Other equally important challenges have, however, been overlooked by other texts, such as the growing use of bankruptcy protection laws to limit the consequences of supplying defective products (as in the recent bailout-supported cases of General Motors and Chrysler), and this book sets out to rectify such omissions.
While other books leave the reader to sink or swim in a swamp of apparently contradictory doctrine, Products Liability Law lays out from the beginning the five elements common to all products liability claims. It then builds on this foundation by tackling each new area of the law in a lucid and reader-friendly manner, while explaining how each doctrine relates to the politico-economic and historical context in which the law operates.
Supplementing the text with numerous original flowcharts, tables, and other diagrams—as well as asking thoughtful questions along the way—this book charts a careful and comprehensible course through the often tempestuous battleground of products liability law.
Thursday, August 30, 2012
Don Gifford (Maryland), Joseph Kroart, Brian Jones (Villanova-Sociology), and Cheryl Cortemeglia have posted to SSRN What's on First? Organizing the Casebook and Molding the Mind. The abstract provides:
This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all three groups of students shifted toward a belief that judges consider social, economic, and ideological factors, the degree of the shift differed in a statistically significant way depending on which torts their professors taught first. These differences persisted throughout the semester, even after they studied other torts. Further, these differences were observed even when the analysis controlled for law school ranking and were more pronounced among students attending the highest ranked schools.
In interpreting the survey results, the authors employ sociologist Erving Goffman’s theory of “frame analysis” and the work of cognitive psychologists including Amos Tversky and Daniel Kahneman on “anchoring.” The Article concludes that the category of tort liability to which students are first exposed affects the “frame” or “lens” through which they view the judicial process. This frame becomes anchored and persists throughout the study of other tort categories. The lessons about the nature of the judging process learned implicitly through the professor’s choice of topic sequence may be even more important than the substantive topics themselves.
Friday, July 27, 2012
Mike Rustad (Suffolk) has posted two pieces to SSRN. First, he reviews Marshall Shapo's new book in The Myth of a Value-Free Injury Law: Constitutive Injury Law as a Cultural Battleground. The abstract provides:
This review essay critically examines Marshall Shapo’s new book, An Injury Constitution. Shapo’s new book provides a counter to simplistic arguments that torts is driving our economy into a death spiral by jackpot justice judgments in which undeserving plaintiffs collect enormous awards given by runaway juries. Drawing upon forty-six years of torts scholarship and teaching, Shapo’s pluralistic theory demonstrates how injury law reflects our culture and our inner life, as well as our aspirations to constrain bullies and the reckless acts that endanger society. In its eleven chapters, this book contends that American injury law has evolved as the functional equivalent of a constitution.
Second, from the AALS mid-year meeting last month is Tort Teaching Lessons from the BP Oil Spill. The abstract provides:
This article is drawn from my talk on the topic of "How to Teach Disaster as Part of a Torts Curriculum" at the AALS Workshop on Torts, Environment and Disaster from June 8-10, 2012, in Berkeley. This piece draws upon an informal survey I conducted in the spring of 2012 on how torts teachers employed the BP oil spill disaster (and other disasters) in their basic torts course (to illustrate topics such as the economic loss rule, legal causation, damages, and the impact of safety regulations).
Tuesday, July 24, 2012
Ken Oliphant (Director, Institute for European Tort Law) & Ernst Karner (University of Vienna) have co-edited a book for the European Centre of Tort and Insurance Law/Institute for European Tort Law. Loss of Housekeeping Capacity from De Gruyter is a comparative study on liability for the loss of housekeeping capacity. The abstract provides:
Ken Feinberg has a new book on the market, "Who Gets What: Fair Compensation after Tragedy and Financial Upheaval." From the publisher:
Agent Orange, the 9/11 Victim Compensation Fund, the Virginia Tech massacre, the 2008 financial crisis, and the Deep Horizon gulf oil spill: each was a disaster in its own right. What they had in common was their aftermath—each required compensation for lives lost, bodies maimed, livelihoods wrecked, economies and ecosystems upended. In each instance, an objective third party had to step up and dole out allocated funds: in each instance, Presidents, Attorneys General, and other public officials have asked Kenneth R. Feinberg to get the job done.
In Who Gets What?, Feinberg reveals the deep thought that must go into each decision, not to mention the most important question that arises after a tragedy: why compensate at all? The result is a remarkably accessible discussion of the practical and philosophical problems of using money as a way to address wrongs and reflect individual worth.
NPR recently interviewed Feinberg about the book and his experiences.
Sunday, March 4, 2012
Marshall Shapo (Northwestern) recently published his latest book, An Injury Law Constitution:
An Injury Law Constitution presents a novel thesis that embraces leading features of the American law of injuries. The book argues that the body of law that Americans have developed concerning responsibility for injuries and prevention of injuries has some of the qualities of a constitution--a fundamental set of principles that govern relations between human persons and between individual persons and corporate and governmental institutions. The historical frame reaches back to Aristotle and goes forward to European human rights law. In the modern American legal environment, this “injury law constitution” includes tort law, legislative compensation systems like workers compensation, and the many statutes that regulate safety of activities and of products including drugs, medical devices, automobile design, and pesticides. The work weaves the history of these systems of law into an analysis that it links to the unique compensation plan devised for the victims of the September 11th attacks. The book examines how our injury law constitution reflects deeply held views in U.S. society on risk and injury, indicating how it provides a guide to the question of what it means to be an American.
Oxford University Press, 2012, 312 pages; 6-1/8 x 9-1/4; ISBN13: 978-0-19-989636-3ISBN10: 0-19-989636-4
A PDF summary of the book is here:Download ILC summary.single
Friday, March 2, 2012
Today Wolters Kluwer releases the 10th edition of the Epstein casebook, with Cathy Sharkey (NYU) as a co-editor. To see Epstein & Sharkey's Cases and Materials on Torts, click here:
The Tenth Edition represents the launch of a new partnership between Richard Epstein, who has edited this casebook since 1977, and Catherine Sharkey, who joins as co-editor for this and future editions. Our goal is nothing short of producing a Torts casebook for the next generation of torts professors and students. With that in mind, we have held fast to all of the intellectual rigor, historical depth, and careful case selection and comprehensive notes of the previous nine editions. But we have embraced change as well, adding diverse perspectives (such as race and gender-based critiques of damages calculations), incorporating contemporary empirical scholarship (especially on medical malpractice, damages and jury decisionmaking), and addressing the influence of technology (such as privacy and defamation in the Internet age). It is fitting that, with the Tenth Edition, we introduce the Smart Book electronic edition of the casebook, which will create opportunities for professors and students to incorporate additional materials, including photographs, podcasts, and videos.
We received requests for modest additions, including references to the Second or Third Restatement or other governing law. Many edits reflect this valuable feedback from professors who have used previous editions of the casebook. On several professors' request, we have also added "Problems," which are hypotheticals based on real cases. They are designed to test student understanding of major concepts, and answers are discussed in this Manual.
We welcome dialogue with all users of our casebook. We have benefited greatly from comments and criticisms received over the years. And we imagine that the new Smart Book will only open the door further to such collaboration. It is our hope that, together, we can build the most effective casebook for a new generation. We are eager to hear from you: email@example.com; firstname.lastname@example.org.
Tuesday, February 7, 2012
Okay, so this is not torts-related, but I simply had to mention the release of The Last Justice, written by my good friend Anthony Franze. Anthony is a lawyer with Arnold & Porter's Appellate & Supreme Court practice and his novel is set in the high court with the Solicitor General as the main character.
Advance reviews already have raved that the book is reminiscent of "early Robert Ludlum," and have praised Anthony as the next John Grisham:
"Bristling with fascinating insider details, The Last Justice by Anthony J. Franze is a rare legal thriller—authentic, exciting, and beautifully written. From little-seen Supreme Court chambers to elite boardrooms and darkened bedrooms, you'll be swept along on a tidal wave of suspense. Watch out, John Grisham—Franze has arrived, and he's damn good!"
—Gayle Lynds, New York Times bestselling author
"A stunning opening, an action-packed, intriguing middle, and a pulse-pounding ending. Who could ask for more from a thriller. Welcome Anthony Franze—a great new voice has entered the genre."
—Steve Berry, New York Times bestselling author
"In the style of John Grisham, with the authority of Oliver Wendell Holmes—and with insight to spare—Anthony Franze's legal thriller brings you into Washington's innermost inner sanctums, at a breakneck pace, and with writing so good that you will feel the chill of the marble halls—and the bullets slicing the chilly air around you."
—Keith Thomson, New York Times bestselling author
Even the National Law Journal’s Supreme Court correspondent Tony Mauro called the book a “page-turner” that is “downright respectful of the Court, scrupulously accurate in its details about the institution's inner working.”
Having read the book myself - and having taught a Supreme Court Seminar - I agree with all the praise. I am biased, I admit, but the book is fantastic! It strikes an incredible balance of supense with accurate insider details about the Court. The history and details about the Supreme Court and the SG's Office are so accurate and well written that I could see the book being used as optional reading in an Appellate Practice or Law & Literature course, much the way A Civil Action is used in Civ Pro courses.
The book is available at your local book store and on-line starting today. Check it out!
Tuesday, December 20, 2011
Friday, December 2, 2011
James Maxeiner (Baltimore) has published Failures of American Civil Justice in International Perspective. It is available from Amazon. The description:
Tuesday, August 23, 2011
TortsProf John Goldberg and Barry Friedman have written a primer on succeeding in the first year of law school. Entitled Open Book: Succeeding on Exams from the First Day of Law School, it is available here.
Here are the reviews and description:
I would definitely recommend this book. It gives great advice to students who have no idea what to expect when they take their first law school exams. --Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law
No book is a guarantor of better results, but this one would certainly help the majority of students to add points to their exam results, and some students could literally turn their performances around by following the advice of this book. --Michael D. Murray, Associate Professor, Valparaiso University School of Law
- High-profile, experienced authors from elite schools with hands-on experience teaching the majority of the courses in the traditional 1L curriculum
- Distinctive central pedagogy: the pinball method of exam-taking
- Accompanied by Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).
- Explains to students not just the how but the why of law school exams what makes law school exams different from exams students have encountered in other settings
- Detailed examples provide concrete demonstrations of exam-taking techniques
- Highly readable: prose is straightforward and humorous; key points accented with memorably amusing illustrations Not just an exam prep book; students are offered guidance on getting the most out of classes, and law school more generally.
I've glanced through the book, and it looks great.
Wednesday, June 8, 2011
Rick Cupp (Pepperdine) has posted to SSRN Seeking Redemption for Torts Law--A Review of "Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse" by Timothy D. Lytton (Harvard University Press 2008). The abstract provides:
In Holding Bishops Accountable, Professor Timothy Lytton presents the Catholic Church child molestation lawsuits as an example to encourage a more careful look at torts litigation’s potential policymaking benefits. In this forthcoming book review (draft available for download), Professor Cupp praises Professor Lytton’s thesis and his impressive scholarship. However, the review raises as an open question whether the clergy abuse cases provide an illustration that is too exceptional to substantially enhance openness to the idea of torts litigation as a policy tool.
Church leaders abusing vulnerable children creates a deeply compelling “morality play,” and a plaintiff’s attorney’s perfect plotline. Finding a more sympathetic plaintiff than a defenseless child or a more deplorable defendant than a corrupt clergyman abusing innocents is not easy. The review acknowledges that in the information age a strong symbiotic relationship exists between news and torts lawsuits that should not be underestimated in assessing torts law’s impact on policymaking. With a scenario as shocking as priests molesting children, the media justifiably flock to cover the scandalous story, the extensive coverage shapes public perceptions, and significant policy change predictably follows.
The review recognizes that under the right circumstances, torts law might play a role as a policymaking tool, but it cautions that the particularly powerful illustration of clergy abuse litigation is just that – particularly powerful – and that torts law’s potential for influencing policy is more limited in most litigation scenarios.
Tuesday, May 3, 2011
This unique collection makes available, for the first time in a single volume, English versions of basic tort law texts from 27 national systems in Europe. It includes key provisions of national civil codes and other important legislative enactments, as well as extracts from leading cases. Additional chapters deal with EU Law (EU Tort Law and EU Conflict of Laws) and the European harmonisation projects (the Principles of European Tort Law and the Draft Common Frame of Reference).
The book was launched on the occasion of last week’s 10th Annual Conference on European Tort Law in Vienna, and is dedicated to the conference’s founder, Helmut Koziol.
Wednesday, September 29, 2010
Wednesday, June 9, 2010
The Measure of Injury: Race, Gender, and Tort Law by Martha Chamallas (Ohio State) and Jennifer Wriggins (Maine) was published a little over a week ago by NYU Press. The advance reviews:
"This book is brimming with insights about how societies do and should express what matters in assigning liability for human pain and loss." Martha Minnow (Harvard)
"This book asks important questions about the tort system....A promising direction for scholarship...." Keith Hylton (Boston University)
An "Author Meets Readers" panel discussed the book at Law & Society late last month. Catharine Wells (Boston College) was kind enough to provide me a post based on her remarks from the panel. Her guest post will be up tomorrow.
Wednesday, May 26, 2010
Earlier Andrew Popper's "Tort Reform" book received publicity both here at TortsProf (Sheila) and at the VC(Todd Zywicki). West has now announced that it will be available not only in electronic format (as originally advertised), but also as a traditional text (in paperback). It will be available in time for the fall semester.