Monday, March 10, 2014
In "Would Litigation Financing Improve Mass Torts," the National Law Journal examines an article by Professor Byron Stier suggesting that plaintiffs should be allowed to sell their claims to financial entities. As Chris mentioned in an earlier post, Byron's article was part of the "Perspectives on Mass Tort Litgiation" symposium held at Widener last April.
Monday, February 24, 2014
Thursday, February 20, 2014
Have you heard of the Law & Economics Center Workshops for Law Professors? These four-day workshops are held throughout the year, throughout the country (with an emphasis on great locales to visit, such as the Florida Keys; Steamboat Springs, CO; and Palo Alto, CA), and are designed to foster a better understanding of law & economics.
I recently attended the LEC Workshop on Risk, Injury, Liability & Insurance held January 30th to February 2nd at Hawks Cay Resort on Duck Key in Florida. Lodging and most meals were covered by the LEC. Many of the participants were alumni of other LEC workshops and thus knowledgeable about basic law and economics principles, though a handful (including myself) had only engaged peripherally in the topic. Faculty presenters were Henry Butler, Executive Director of the LEC; Jonathan Klick (Penn), and Eric Helland (Claremont McKenna).
Broadly speaking, the goal of these workshops is to introduce the participants to law and economics thinking on the particular topic. Our workshop focused on the economics of uncertainty and risk, and how that translated to legal concepts in insurance and tort law. Despite the variety in background knowledge levels among participants, the teaching was very accessible and at the same time sophisticated and engaging. Discussions focused on problems of adverse selection, moral hazard, and external costs. I definitely gained a better understanding of the economics of risk, and I benefited tremendously from both the assigned readings (voluminous but thoughtfully selected), and instruction.
The Law & Economics Center deserves its outstanding reputation. I highly recommend the LEC Workshops to anyone with a passing interest in law and economics.
Tuesday, February 18, 2014
Last April at Widener, we hosted a symposium entitled "Perspectives on Mass Tort Litigation." The first of two issues of articles from the Widener Law Journal is now available. It's a terrific lineup:
Christopher J. Robinette, Introduction Download Robinette_V23I1
Victor E. Schwartz & Mark A. Behrens, Asbestos Litigation: The "Endless Search for a Solvent Bystander" Download Behrens&Schwartz_V23I1
Eduardo C. Robreno, The Federal Asbestos Products Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? Download Robreno_V23I1
Byron G. Stier, The Sale and Settlement of Mass Tort Claims: Alternative Litigation Finance and a Possible Future of Mass Tort Resolution Download Stier_V23I1
Thurbert Baker, Paying to Play: Inside the Ethics and Implications of Third-Party Litigation Financing Download Baker_V23I1
Sheila B. Scheuerman, Mass Tort Ethics: What Can We Learn from the Case Against Stanley Chesley? Download Scheuerman_V23I1
Nicholas P. Vari & Michael J. Ross, In a League of Its Own: Restoring Pennsylvania Product Liability Law to the Prevailing Modern "Attitude" of Tort Law Download Vari&Ross_V23I1
S. Todd Brown, Bankruptcy Trusts, Transparency, and the Future of Asbestos Compensation Download Brown_V23I1
Monday, February 10, 2014
From James Lee (Birmingham):
I write to invite proposals for papers for the Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.
The overall theme of the Conference is ‘Judging in the 21st Century’. I anticipate that it will be likely that Tort papers will be able to engage readily with this topic, whether focusing on decisions of the highest courts in relevant jurisdictions or on work at first instance, for example. Beyond the theme, proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the second half of the Conference: please note that it has changed from the first half last year, so will run on Thursday 11th and Friday 12th.
All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. We are pleased to have had a range of colleagues presenting high quality papers in recent years, notably from many ODGers. If you are interested in presenting a paper, please e-mail me at email@example.com with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Friday 7th March 2014.
Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.
Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.
Friday, January 17, 2014
We know many TortsProfs were unable to make it to D.C. due to the weather. The Faculty Lounge reports that AALS is offering partial refunds of the registration fee for those unable to make it due to weather. The form for a refund is here. The deadline is January 31st.
Thursday, January 16, 2014
Registration is now open for the 13th Annual Conference on European Tort Law presented by the European Centre of Tort and Insurance Law. The conference is April 24-26, 2014, and will be held in Vienna. The program includes a special session on Cyber-Torts.
Friday, January 3, 2014
I had planned to be at AALS for the Torts Section tomorrow, but the weather has interfered. I've talked to several TortsProfs who are in the same boat. For those of you who can make it, Jenny Wriggins has set up a great program. Sheila (who will be there) posted about it yesterday. Adam Scales will be joining the Executive Committee as a new member. Enjoy!
P.S. I'll still be doing something Torts-related today: grading.
Thursday, January 2, 2014
The Insurance Law and Torts & Compensation Sections will present a joint progam at the AALS annual meeting on Saturday, January 4, 2014, from 10:30 am to 12:15 am. The program is "On the Unavoidable Intersection of Torts and Insurance," and features Nora Engstrom (Stanford), Tom Baker (Penn), and from a call for papers, Juscelino F. Colares (Case Western). The program description provides:
Recent scholarship has shown that tort law and practice are inextricably linked with insurance law. Liability insurance drives tort law in action, influencing what claims are brought, how they are litigated, and how damages are determined. First party insurance such as health and disability insurance are essential parts of the picture in understanding the legal system’s treatment of injury. The program reflects this intersection between torts and insurance, bringing together scholars doing cutting edge research adding to our understanding. Papers will focus on several areas including lawyers’ liability and insurance, the failure of no-fault insurance, and oil spill compensation.
Wednesday, December 4, 2013
Elizabeth Chamblee Burch (Georgia) has posted to SSRN Revisiting the Government as Plaintiff. The abstract provides:
This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State.
As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing out in an unsettled landscape where those first-order questions about legitimacy remain unresolved.
When layered atop the existing controversy over the intermingling of government functions, executive officials’ relatively new allocative role may put their actions even further at odds with their traditional regulatory and proprietary functions, particularly when the action yielding the compensation is a public substitute for a private right of action. What principles should guide officials in this new role: traditional tort law, social welfare, or political equality principles such as one person one vote? More specifically, should executive officials look to tort law precepts to govern the allocation and retain concepts such as economic loss and the collateral source rule, or employ a governmental aid aspect, which would suggest a principal of equality that would not vary based on one’s income but would consider collateral sources of compensation?
Zimmerman suggests that officials have attempted to justify both their regulatory and allocative decisions with ill-suited corrective justice principles that translate poorly from the private to the public sphere. Despite reservations about whether regulation through litigation results in the best policies or offers democratic checks, he seems more willing to accept executive officials’ increased litigation role in the wake of Congressional failings and the difficulty of certifying a private class action. He thus tailors his reform proposals to target the government’s allocative function, suggesting ways to improve legitimacy and transparency in distributing recoveries, whatever the guiding principle might be.
Still, certain concerns and questions linger. First, Zimmerman narrows his focus to the second generation question of allocation, even though he raises and dismisses first-generation concerns over whether executive officials are properly acting within the scope of their authority and whether the regulatory solutions they generate through litigation are legitimate and optimal. Shoring up back-end allocation procedures, however, does not alleviate first-generation legitimacy questions or regulatory concerns. Second, Zimmerman opts not to iron out overarching systemic problems like legislative stalemates or mounting difficulty in certifying class actions, preferring instead (or perhaps more realistically) to work within the circumstances that prompt executive action. Yet, truly legitimizing process and adhering to corrective justice principles would require resolving systemic concerns about who should litigate and who should regulate. Finally, given concerns that judges already “rubber stamp” class-action settlements and that parties tend to find innovative ways to gerrymander votes and stakeholder input in areas like bankruptcy, one might question the effectiveness of Zimmerman’s proposals for enhancing due process when allocating state recovery to affected citizens.
Wednesday, November 20, 2013
Monday, October 21, 2013
Sandra Sperino sends news of an interesting upcoming symposium at Ohio State:
On November 15, 2013, The Ohio State Law Journal will host a symposium titled “Torts and Civil Rights Law: Migration and Conflict.”
Increasingly, courts and commentators have labeled federal statutory anti-discrimination claims “torts” or “tort-like” claims, without thoroughly discussing the implications of this classification. Particularly since the U.S. Supreme Court’s 2011 ruling applying the controversial concept of “proximate cause” to a claim of employment discrimination, the lower courts have stepped up their efforts to reshape a number of anti-discrimination doctrines to align with general tort concepts, often with the effect of limiting the scope of statutory civil rights protection. Thus, tort law is playing a more prominent role in statutory interpretation under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).
This symposium will explore the theoretical and doctrinal affinities and tensions between tort and anti-discrimination law, while fostering dialogue between tort and anti-discrimination scholars. Symposium speakers include the following:
Martha Chamallas, The Ohio State University Moritz College of Law;
Charles A. Sullivan, Seton Hall University School of Law;
Sandra F. Sperino, University of Cincinnati College of Law;
Jonathan Cardi, Wake Forest University School of Law;
William R. Corbett, Louisiana State University Law Center;
Anthony Sebok, Yeshiva University Cardozo School of Law;
Catherine M. Sharkey, New York University School of Law;
Catherine E. Smith, University of Denver Sturm College of Law;
Angela Onwuachi-Willig, The University of Iowa College of Law;
Ifeoma Ajunwa, Research Fellow, Columbia Law School;
Maria Linda Ontiveros, University of San Francisco School of Law;
Laura Rothstein, University of Louisville Louis D. Brandeis School of Law;
Deborah L. Brake, University of Pittsburgh School of Law; and
L. Camille Hébert, The Ohio State University Moritz College of Law.
The symposium will be held at the Ohio State University Moritz College of Law. For more information, please visit the symposium website at http://moritzlaw.osu.edu/students/groups/oslj/symposium-2/2013-2014-symposium/.
The Supreme Court of Ohio Commission on Continuing Legal Education has approved this symposium for 5.50 total CLE hours of instruction.
Monday, September 23, 2013
From our friends at Mass Tort Litigation comes news of the 2014 Clifford Symposium, which will explore Judge Jack Weinstein's impact on "a broad range of topics in civil justice, from torts, civil procedure and the law of evidence, to broader notions about what it means to be a judge and to seek justice in America's courts." Justice Stephen Breyer is scheduled to give the main address.
The brochure, with a full list of speakers, is available here.
Monday, September 16, 2013
On September 27-28, 2013, Vanderbilt Law School hosts "The Public Life of the Private Law: A Conference in Honor of Richard A. Nagareda." The schedule provides:
Friday, September 27
1:30–3:00 p.m. Theodore Rave (Houston), "Settlement, ADR, and Class Action Superiority"
Commentators: Suzanna Sherry (Vanderbilt) chair, Robert Bone (Texas), and Emery Lee (FJC)
3:15–4:45 p.m. Maria Glover (Georgetown), "A Separate Peace? The Non-Removability of State Law Actions in Multi-District Litigation". Commentators: Tracey George (Vanderbilt) chair, William Rubenstein (Harvard), and Patrick Woolley (Texas)
Saturday, September 28
8:30–10:00 a.m. Troy McKenzie (NYU), "The Mass Tort Bankruptcy: A Pre-History"
Commentators: Lynn Baker (Texas) chair, Joe Cecil (FJC), and Brian Fitzpatrick (Vanderbilt)
10:15–11:45 a.m. Catherine Borden (FJC) and Margaret Williams (FJC) (with Emery Lee), "Repeat Players in Multidistrict Litigation". Commentators: Charles Silver (Texas) chair, Paul Edelman (Vanderbilt), and Myriam Gilles (Cardozo)
1:15–2:45 p.m. Adam Zimmerman (Loyola-Los Angeles), "The Corrective Justice State"
Commentators: John Goldberg (Harvard) chair, Elizabeth Chamblee Burch (Georgia), and Edward L. Rubin (Vanderbilt)
Tuesday, July 23, 2013
Alan Calnan (Southwestern) has posted to SSRN Defenseless Self-Defense: An Essay on Goldberg & Zipursky's Civil Recourse Defended. The abstract provides:In a recent symposium issue published by the Indiana Law Journal, Professors John C. P. Goldberg and Benjamin C. Zipursky provide a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in two related respects. First and most obviously, civil recourse theory lacks any meaningful explanation of the defensive rights at play within the tort system. Second and more importantly, Goldberg & Zipursky’s theory is inescapably indefensible because it cannot cure this omission without simultaneously self-destructing. When recourse meets defense, it is transformed into competition. This competitive framework precludes the antithetical enablement interpretation of civil recourse. By counterbalancing rights, tort does not take sides. It mediates and moderates the parties’ polar positions.
Goldberg & Zipursky misunderstand this unique human institution because they completely disregard human nature. People possess a conflicted mix of instinct and rationality mediated by a constant yearning for reconciliation and balance. This triune nature permeates our cultural artifacts, including our laws. Indeed, as this essay will show, it accounts for much of the history, substance, and structure of the tort system. Though broadly drawn, this extraordinary consonance bears further investigation. But to discover tort’s inner truth, we cannot continue searching with blinkered perspectives like civil recourse theory. Instead, we must open our eyes to the law’s deepest foundations.
Friday, July 5, 2013
Nora Freeman Engstrom (Stanford) has posted to SSRN Lawyer Lending: Costs and Consequences. The abstract provides:The “lawyer lending” industry — comprised of lenders who extend capital to plaintiffs’ lawyers to finance personal injury litigation — has blossomed. This industry has taken off, at least in part, because attorneys are permitted to deduct interest on these loans from client recoveries as an additional “expense” of litigation. The cost of the burgeoning lawyer lending industry is, thus, in large measure, borne by clients. This Article asks whether personal injury attorneys who choose to take out loans to cover case costs and litigation expenses ought to be allowed to offload associated interest charges. The Article shows this question is important in its own right — with profound implications for the quantity and intensity of tort litigation. And the question is also an ideal point of entrée to identify, and begin to remedy, broader deficiencies in three strands of current legal analysis. Examining the propriety of interest pass-throughs first highlights the importance of litigation costs — and the inter-connectivity of costs and contingency fees — a topic that has suffered from too little investment in research. Second, by separately considering just lawyer lending, (rather than all third-party funding mechanisms simultaneously), and by studying a mechanism’s on-the-ground operation, (rather than just its birds-eye-view impact), the Article attempts to lead by example to reorient future Alternative Litigation Finance scholarship. Third, the Article underscores the need to push past bare formalism, and it sketches an alternative theoretical framework that can be employed when confronting certain ethical issues going forward.
Friday, June 7, 2013
Professor Ernest Weinrib, Cecil A Wright Professor of Law at the University of Toronto, will be speaking at Macquarie Law School in Sydney, Australia, on the topic of 'Causal Uncertainty in Negligence Law', on August 22nd. The flyer is attached: Download Ernest Weinrib Public Talk_FINAL (1)-1
Wednesday, June 5, 2013
Video of the panels from the April 16 symposium on Mass Tort Litigation is now available.
Panel 1; Mass Tort Theory: Deborah Hensler (Stanford), Linda Mullenix (Texas), Mike Green (Wake Forest), and Aaron Twerski (Brooklyn)
Panel 2; Emerging Issues in Mass Tort Practice: Hon. Thurbert Baker (McKenna Long & Aldridge), John Beisner (Skadden Arps), Tobias Millrood (Pogust Braslow & Millrood), and Victor Schwartz (Shook Hardy & Bacon)
Distinguished Address: Hon. Eduardo Robreno (E.D. Pa.); Federal Asbestos Litigation: Black Hole or New Paradigm?
Panel 3; Keystone State Civil Justice Issues: Nancy Winkler (Eisenberg Rothweiler Winkler Eisenberg & Jeck), Nicholas Vari (K&L Gates), Mark Behrens (Shook Hardy & Bacon), and Scott Cooper (Schmidt Kramer)
Panel 4; Asbestos-Related Bankruptcy Issues: Todd Brown (Buffalo), Bruce Mattock (Goldberg Persky & White), and WIlliam Shelley (Gordon & Rees)
Panel 5; Mass Tort Ethics: Sheila Scheuerman (Charleston) and Byron Stier (Southwestern)
Wednesday, May 29, 2013
The Indiana Law Journal has posted to its website the articles from the 2012 AALS Torts & Compensation Systems panel on civil recourse theory:
|Indiana Law Journal|
|Volume 88: Issue 2
AMERICAN ASSOCIATION OF LAW SCHOOLS TORTS & COMPENSATION SYSTEMS PANEL
|Twenty-First Century Tort Theories: The Internalist/Externalist Debate
Michael L. Rustad
|Civil Recourse Theory’s Reductionism
|Instrumental and Noninstrumental Theories of Tort Law
Richard A. Posner
|Beneath the Surface of Civil Recourse Theory
|Two Roads Diverge for Civil Recourse Theory
Christopher J. Robinette
Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette
Friday, May 24, 2013
Howard Erichson and Ben Zipursky of Fordham recently chaired a symposium on "Lawyering for Groups." Participants included Beth Burch, Kristen Carpenter, Sam Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, and Eli Wald. The papers are available at Mass Tort Lit Blog.