Wednesday, September 3, 2014
Todd Brown (Buffalo) is chairing a conference entitled "Recent Developments in Tort Law and Practice" with Kenneth Feinberg as the Gerald S. Lippes Lecture Speaker. The conference is October 6, 2014 from 8:45 until 5:00 at the Hyatt Regency Buffalo. Registration is here. The schedule:
7:30 a.m. Conference and keynote registration begins
8:45 –10:00 a.m. Breakfast and Gerald S. Lippes Lecture featuring Kenneth R. Feinberg. Mr. Feinberg is an attorney who has overseen the payouts of billions of dollars to the victims of the September 11 Victim Compensation Fund, the BP oil spill, and the Boston Marathon bomb victims, among other highly visible settlements.
10:20 – 11:20 a.m. Aggregation and Disaggregation in Mass Torts: Panelists discuss the recent trend in some mass tort MDLs away from global settlement in favor of individual claim litigation and settlement in state court.
11:30 a.m. –12:15 p.m. Lunch
12:15 – 1:30 p.m. Judges from New York City and Western New York discuss their experience with asbestos litigation.
1:40 – 2:40 p.m. Asbestos Litigation in New York: Panelists discuss legislative reforms at the state and federal levels and recent changes to asbestos practice in NYS courts.
2:50 – 3:50 p.m. Update on the RAND ICJ Asbestos Bankruptcy Project: Early findings from the RAND study on the impact of the bankruptcies of asbestos defendants on asbestos litigation in state court, with commentary from panelists.
4:00 – 5:00 p.m. The Past, Present and Future of the New York “Scaffold Law”: A detailed examination of New York’s unique approach to strict liability in construction accident cases, including the origins and evolution of the law in recent years.
5:00 p.m. Reception. Sponsored in part by the SUNY Buffalo Law Alumni Association.
Tuesday, September 2, 2014
Richard Wright (Chicago-Kent) has posted to SSRN Moore on Causation and Responsibility: Metaphysics or Intuition?. The abstract provides:
This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.
However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.
Yet, Moore believes, intuitions come into conflict with metaphysics when considering omissions or other absences as causes, which is routinely assumed to be true in law and life but which Moore insists is fundamentally erroneous from a metaphysical standpoint. His insistence on this point, while admirable from an intellectual integrity standpoint, completely undermines the fundamental premise of his book -- that causation is the pervasive and dominant determinant of legal responsibility -- since omissions/absences are part of every causal chain involving human action and many not involving human action.
In this paper, I defend a specific "generalist" account of causation (the NESS account) and criticize Moore's primitivist singularist account. Along the way, I address a number of issues regarding causation and legal responsibility, including the metaphysical basis for treating omissions as causes.
Monday, August 25, 2014
Jason Solomon has posted two pieces to SSRN. First is a symposium introduction to The Civil Jury as Political Institution. The abstract provides:
More than two hundred years after the Seventh Amendment enshrined the civil jury right, the debate over the role of the civil jury in the United States continues unabated. But even as questions about the civil jury’s competence as an adjudicative institution continue, questions surrounding the civil jury’s justification and role as a political institution are under explored.
To explore these questions in contemporary society, the Bill of Rights Institute and Law Review at William & Mary Law School hosted a symposium on The Civil Jury as a Political Institution. For two days in February 2013, scholars from an array of disciplines gathered to consider the extent to which the civil jury played a meaningful role as a political institution historically, whether it still serves that purpose today and, if so, what measures can or should be taken to ensure its continuing significance.
This short essay is the introduction to the symposium issue of the William & Mary Law Review on this topic. The essay provides a brief summary and exploration of some of the themes that arose in the papers and during the discussion.
Second is Juries, Social Norms, and Civil Justice. The abstract provides:
At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.
This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article makes three original contributions.
First, I undermine the claim that the breach question in negligence is inevitably one for the jury by revisiting a famous debate between Cardozo and Holmes about the possibility of judge-made rules around breach in tort. Second, I draw on social and cognitive psychology to question the conventional wisdom that juries applying general standards are ideally suited to identify and apply social norms. And third, I sketch a middle-ground approach on breach, which involves presumptive rules that defer to indicia of social norms such as statutes and regulations, custom, and the market.
In making the argument, this Article begins to point the way towards a tort system that recognizes the value of recourse but better serves rule-of-law values.
Thursday, August 7, 2014
The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the Food and Drug Law Institute have announced a joint symposium on "Emerging Issues and New Frontiers for FDA Regulation," to be held on October 20, 2014, in Washington. Topics include food regulation, drug shortages, stem cells, and synthetic biology.
Tuesday, July 29, 2014
John Oberdiek (Rutgers-Camden) has posted to SSRN Putting (and Keeping) Proximate Cause in Its Place. The abstract provides:
Before one can recover for an injury sounding in negligence, one must establish that the defendant more likely than not proximately caused the injury. That the positive law of negligence imposes this requirement is beyond controversy. What is more controversial is whether the requirement is conceptually and morally defensible. Michael Moore, singly as well as in tandem with Heidi Hurd, powerfully argues that it is neither. Specifically, Moore contends that the harm-within-the-risk test of proximate causation, despite its venerable history in tort law and reaffirmation in the latest Restatement, is “incoherent” and “morally undesirable.” It is bad enough, on Moore’s view, that negligence law bifurcates its causal inquiry, distinguishing as it does the question of actual causation from that of proximate causation, rather than pursuing a unified naturalistic inquiry into the substantiality of causal contribution. What is worse is that tort law can’t even get its own misguided causal inquiry half-right.
I do not share Moore’s jaundiced view of the harm-within-the-risk test of proximate cause – what I will call the “risk rule” for short. I begin by questioning his understanding of the risk rule as it figures in tort law, and go on to argue that neither his conceptual nor his moral criticism of the risk rule is decisive. In the course of rebutting Moore’s criticisms, I outline what I take to be the most compelling account of the risk rule in the law of torts. What emerges is a conception of proximate cause that is thoroughly moralized. Of course moral premises must be invoked to defend the risk rule’s moral merit, but, I argue, they must also be invoked to defend its conceptual coherence. In my view, the risk rule is both morally and conceptually sound.
Friday, July 25, 2014
I posted last February about my experience at the George Mason Law & Economic Center Workshop on Risk, Injury, Liability & Insurance. In a word: fantastic.
If any of the upcoming LEC Workshop topics strike your fancy, my advice is GO! (especially to Duck Key!).
LEC WORKSHOP FOR LAW PROFESSORS ON AUSTRIAN LAW AND ECONOMICS
Wednesday, October 1 - Friday, October 3, 2014
George Mason University School of Law, Arlington, VA
Confirmed speakers include: Peter J. Boettke (George Mason University), Christopher J. Coyne (George Mason University), Israel Kirzner (New York University), Peter Leeson (George Mason University), Ragan Petrie (George Mason University), Edmund Phelps (2006 Nobel Laureate, Columbia University), Vernon Smith, (2002 Nobel Laureate, Chapman University), Oliver Williamson, (2009 Nobel Laureate, University of California at Berkeley), and Todd J. Zywicki (George Mason University School of Law).
LEC-PERC WORKSHOP FOR LAW PROFESSORS ON ENVIRONMENTAL ECONOMICS
Saturday, December 6 - Wednesday, December 10, 2014
Hawks Cay Resort, Duck Key, FL
Confirmed speakers include: Jonathan H. Adler (Case Western Reserve University School of Law), Terry L. Anderson (Property and Environment Research Center), Henry N. Butler (George Mason University School of Law), and Dean Lueck (University of Arizona).
LEC WORKSHOP FOR LAW PROFESSORS ON THE ECONOMICS OF LITIGATION AND CIVIL PROCEDURE
Thursday, January 29 - Sunday, February 1, 2015
Hawks Cay Resort, Duck Key, FL
Confirmed speakers include: Robert G. Bone (University of Texas at Austin School of Law), Jonah B. Gelbach (University of Pennsylvania Law School), and Bruce H. Kobayashi (George Mason University School of Law).
TERMS AND CONDITIONS APPLICABLE TO ALL THREE WORKSHOPS:
1. NO TUITION
2. ATTENDANCE AND PARTICIPATION: Attendees are required to attend all sessions and group meals. Attendees are expected to be prepared and to actively participate in the discussions.
3. HOTEL ROOMS: The LEC makes reservations and pays for rooms via direct bill.
4. MEALS: The LEC provides group meals and breaks for all attendees.
5. TRANSPORTATION: Attendees are responsible for making their own transportation arrangements.
6. DEPOSIT: For each workshop, accepted applicants must make a $500 deposit bonding their attendance within 30 days of acceptance. For each workshop, the deposit is refunded within 30 days after successful completion of the workshop.
7. APPLICATION PROCEDURE: Please use the link below to apply: http://www.cvent.com/Surveys/Welcome.aspx?s=921dfb49-5ceb-44bd-87df-bd63d4acc371
8. ACCEPTANCE: The LEC will begin evaluating applications as they are received.
ADDITIONAL INFORMATION: For more information regarding these conferences or other initiatives of the Law & Economics Center, please visit: http://www.MasonLEC.org
You may also call or send an email to Jeff Smith, Coordinator, Henry G. Manne Program in Law & Economics Studies, at 703.993.8382 or jsmithQ@gmu.edu
Monday, July 21, 2014
Tuesday, July 1, 2014
The Tulane Law Review recently hosted "The Evolution of Asbestos Litigation: Enduring Issues and the Administration of Trusts." The articles are now available:
Edward F. Sherman, The Evolution of Asbestos Litigation, 88 Tul. L. Rev. 1021 (2014).
Georgene Vairo, Lessons Learned By the Reporter: Is Disaggregation the Answer to the Asbestos Mess?, 88 Tul. L. Rev. 1039 (2014).
Lester Brickman, Fraud and Abuse in Mesothelioma Litigation, 88 Tul. L. Rev. 1071 (2014).
Joseph Sanders, The “Every Exposure” Cases and the Beginning of the Asbestos Endgame, 88 Tul. L. Rev. 1153 (2014).
Peggy L. Ableman, A Case Study From a Judicial Perspective: How Fairness and Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims, 88 Tul. L. Rev. 1185 (2014).
Anita Bernstein, Gender in Asbestos Law: Cui Bono? Cui Pacat?, 88 Tul. L. Rev. 11211 (2014).
The second set of articles from the April 2013 symposium at Widener, Perspectives on Mass Tort Litigation, are now available.
Christopher J. Robinette, Introduction, Part II Download Robinette Intro 2 - Ready for Pub. 6.21.14
Aaron Twerski & Lior Sapir, Sufficiency of the Evidence Does Not Meet the Daubert Standards: A Critique of the Green-Sanders Proposal Download Twerski - Ready for Pub. 6.17.14
Michael D. Green & Joseph Sanders, In Defense of Sufficiency: A Reply to Professor Twerski and Mr. Sapir Download Green - Ready for Pub. 6.18.14
William P. Shelley, Jacob C. Cohn & Joseph A. Arnold, Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update Download Shelley - Ready for Pub. 6.19.2014
Bruce Mattock, Andrew Sackett & Jason Shipp, Clearing Up the False Premises Underlying the Push for Asbestos Bankruptcy Trust "Transparency" Download Mattock - Ready for Pub. 6.18.14
Scott B. Cooper & Lara Antonuk, The Royal Nonesuch: How Tort Reformers Are Pulling One Over on Pennsylvania Download Cooper & Antonuk - Ready for Pub. 6.18.14
Congratulations to the Widener Law Journal for two great issues.
Wednesday, June 25, 2014
Tuesday, May 20, 2014
The discussion draft of the Restatement Third, Torts: Intentional Torts to Persons, was discussed this morning at the American Law Institute annual meeting.
Monday, April 28, 2014
The Stanford Journal of Complex Litigation is hosting a symposium, "A Complicated Cleanup: The BP Oil Spill Litigation," on Thursday, May 8, 2014 and Friday, May 9, 2014, at Stanford Law School. The keynote address speaker is Kenneth Feinberg, the Gulf Coast Claims Administrator. Other symposium speakers will include Elizabeth Cabraser of Lieff Cabraser, Francis McGovern (Duke), Linda Mullenix (Texas), Maya Steinitz (Iowa), and Byron Stier (Southwestern). Panel moderators will include Stanford Law Professors Nora Engstrom, Deborah Hensler, and Janet Alexander.
(Via Mass Tort Lit Blog)
Thursday, April 24, 2014
Thursday, April 3, 2014
The topic of the 20th Annual Clifford Symposium on Tort Law and Social Policy at DePaul Law is "Judge Jack Weinstein's Impact on Civil Justice in America." The symposium is Friday, April 24th. As usual, there is a great lineup of speakers, including a videotape presentation by Justice Stephen Breyer. You can register online at http://law.depaul.edu/clifford or call (312) 362-5292.
Judge Jack Weinstein has led a remarkable life. He is the American dream personified; born in the heartland in Wichita, Kansas, raised in Brooklyn, a child who had to make his way in the Depression, a student who secured his first college degree in night school, a veteran of World War II. He has been a dock worker, a naval officer, a county attorney, a law professor and a federal judge. At the 20th annual Clifford Symposium, we gather to honor him. He has opened new vistas in the law of procedure, torts and evidence to name but three. More than that, he has set a towering example of judicial independence and social conscience. His work on Agent Orange and numerous mass torts that followed set American courts on a path that has expanded protection for defenseless victims and yielded a better society. To borrow from one of his lines, “every day [he has laid] down his professional life for justice.” It does us great honor to have this opportunity to celebrate his life and achievements.
Monday, March 17, 2014
From Stacie Strong (Missouri):
On April 9, the 11th Annual ITA-ASIL Conference: Mass and Class Claims in Arbitration will be presented from 12:00 noon – 4:30 p.m. in Washington D.C. at the Ronald Reagan International Trade Center.
The conference examines the competing trends and future prospects for class and mass claims in litigation and arbitration and features a keynote address by Carolyn B. Lamm (White & Case LLP, Washington, D.C.), past President of the ABA and lead advocate for the 60,000 Italian claimants in Abaclat v. Argentine Republic.
Other participants include co-chairs Christopher Drahozal (University of Kansas School of Law) and S. I. Strong (University of Missouri School of Law) and a stellar faculty including Deepak Gupta (Gupta Beck PLLC, Washington, D.C.) and Geneviève Saumier (McGill University Faculty of Law, Montreal), who will discuss class arbitration in a domestic and comparative context, and Michael Waibel (University of Cambridge, Lauterpacht Centre for International Law, Cambridge) and Samuel Wordsworth, Q.C.(Essex Court Chambers, London), who will discuss mass claims. Registration includes the networking luncheon which precedes the conference this year.
Wednesday, March 12, 2014
Wednesday, April 9, 12:25-1:50 p.m.
Vanderbilt Hall, Greenberg Lounge
Hosted by the Center on Civil Justice With additional support from the American Constitution Society and the Federalist Society
Jury trials in civil cases are part of our Bill of Rights, and the jury trial has always been thought of as a pillar of American democracy. In practice, however, it is increasingly rare. Why is this happening? What does the demise of the jury trial mean for our civil justice system? Does it change democratic citizenship? Can the trend be reversed? Should we try, or just allow the jury trial become a relic of an earlier time? Our distinguished panel of trial and appellate lawyers and academic experts will discuss these and other hotly debated questions.
CLE Approval Pending
PANELISTS: Mark Behrens, Partner, Shook, Hardy & Bacon LLP Renée Lettow Lerner, Associate Professor of Law, The George Washington University Law School, Andrew Pincus, Partner, Mayer Brown Stephen Susman, Partner, Susman Godfrey
Arthur R. Miller, University Professor, NYU School of Law
Tuesday, March 11, 2014
The Hall Center for Law and Health and the Indiana Health Law Review have announced their annual symposium, Neuroscience and Law: Injury, Capacity and Illness, which will be held on March 28, 2014, in Indianapolis.
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.