February 16, 2011
Cyberbullying as IIED Claim?
New York Law Journal has an interesting article by Andrew S. Kaufam and Betsy D. Baydala, both of Kaufman Borgeest & Ryan in NYC. The article analyzes the viability of a claim for intentional infliction of emotional distress based on allegations of cyberbullying.
Thanks to Lisa Smith-Butler for the link.
January 31, 2011
Is the Affordable Care Act Unconstitutional?
At Friday's Healthcare Law in the Federal Courts symposium organized by the Federal Courts Law Review at the Charleston School of Law, Professor James Ely (Vanderbilt) and Professor Brian Galle (Boston College) debated whether the mandate that each individual must purchase health insurance or face a $695 penalty was constitutional.
Professor Ely made two arguments. First, he argued that the mandate exceeded Congress's authority under the Commerce Clause because the failure to buy health insurance was not economic activity. Second, Professor Ely argued that the mandate did not constitute a "tax" under the Taxing Clause because the legislation does not use the word tax, nor was the provision intended to be revenue raising.
In response, Professor Galle pointed out that health care amount to 1/7 of the economy. Professor Galle further presented points from his paper The Taxing Power, the Affordable Care Act, and the Limits of Constitutional Compromise, 121 Yale L.J. Online __ (2011). The abstract provides:
This brief essay responds to recent court decisions and scholarly commentary questioning the constitutionality of the Affordable Care Act. Criticism has focused in particular on the provision imposing a $695 penalty on those who fail to purchase qualifying health insurance.
I argue that, contrary to the courts and the commentators, this provision is valid as an exercise of Congress' power to lay and collect taxes. Although much has been made of Congress' use of the word "penalty" rather than tax, the Supreme Court has held since 1866 that Congress can invoke the tax power in litigation without using that term in the challenged statute. I also reject any normative arguments for rejecting that venerable rule as unpersuasive. In any event, the relevant section refers to the penalty it imposes as a "tax" 48 times.
More substantively, I argue that efforts to claim that the section would fall afoul of constitutional limits on "direct" taxes over-read those sections of the Constitution. Limits on direct taxes were the product of a compromise over slavery, and have no other obvious deep meaning. While we must honor the bargain that resulted in their inclusion in the Constitution, honor can be paid with a narrow reading that allows Congress, not courts, to make tax policy.
The Fourth Circuit has scheduled oral argument in the conflicting Virginia cases for the second week of May.
January 22, 2011
Civil Recourse Symposium
Florida State is hosting a symposium on John Goldberg and Ben Zipursky's civil recourse theory on February 11 and 12, 2011. The lineup includes torts scholars Jules Coleman, Arthur Ripstein, Ernest Weinrib, Heidi Hurd, Jason Solomon, Tony Sebok, John Gardner, Stephen Perry, and Scott Hershovitz. It also focuses on the theory's migration from tort to other areas of private law. In spite of my criticism, it is nice to see this theory get the attention it richly deserves. The announcement from Florida State is here. Larry Solum's coverage at Legal Theory Blog is here.
January 18, 2011
Healthcare Law In The Federal Courts - January 28th, Charleston
The Federal Courts Law Review at the Charleston School of Law is hosting a day-long symposium on Friday, January 28th, on "Healthcare Law in the Federal Courts." The symposium focuses on the recent health care reform act, namely, the Patient Protection and Affordable Care Act.
Barry Furrow (Drexel) will be giving the key note address, assessing the economic implications of the Act. Brian Galle (Boston College) and James W. Ely, Jr. (Vanderbilt) will be addressing the constitutionality of the Act and the current litigation.
Registration is free for individuals who do not seek CLE credit. For those seeking CLE credit, the cost is $75.00. (The program is eligible for 6.15 CLE credits based on a 60 minute hour; no ethics credits).
If you are interested in attending the symposium, please contact FCLR Symposium Editor, Angel Heery at aoheery [at] charlestonlaw.edu to RSVP.
January 08, 2011
Vaccines and Drugs: A Brave New Tort World
Torts & Compensation Section Chair Cathy Sharkey (NYU) introduced the panel by noting its diversity. In addition to academics, the panel included a policy expert and a practicing lawyer. The papers from the panel will be published in an upcoming volume of the Indiana Health Law Review.
Robert Rabin (Stanford) began the presentations by providing an outline of the vaccine no-fault program at issue in the upcoming Bruesewitz case. The program was enacted in 1986 and became effective in 1988 at the behest of manufacturers concerned with high damages awards. The goal was to ensure the continued availability of vaccinations while providing compensation for those adversely affected. The program is an adversarial process that does not eliminate recourse to the tort system. Pursuant to the program, those who believe they have been injured by a vaccination need not establish fault, only causation. A vaccine court was established to resolve causation issues by specialists with knowledge of vaccines. Damages are capped, and punies are not available. The claimant has the option to accept the award or reject it and sue in tort.
James Copland (Manhattan Institute/Point of Law) began by noting the issue in Bruesewitz was whether design defects in vaccines are preempted. Copland stated he would focus on policy arguments and not address statutory construction. Copland listed several goals of the tort system as deterrence, compensation, and equity (he exemplified this as redistribution, not necessarily an individual justice perspective). On the deterrence issue, the question is whether the FDA sufficiently deters or whether the tort system should provide additional deterrence. Copland distinguished type 1 errors (a vaccine or drug being released and causing unknown side effects and injuring someone) and type 2 errors (being overly conservative and not releasing a drug on time, depriving someone of the beneficial effects). He opined that type 2 errors are more common than type 1 errors, citing an empirical study he co-authored on the issue. Copland argues the FDA probably overdeters rather than underdeters, and he supports a compensation scheme to handle the compensatory aspects of vaccine injuries.
Mary Davis (Kentucky), who described herself as the "lone tort wolf" on the panel, began by outlining the doctrine of preemption. She described the series of preemption cases since 1992 as the courts seeking clarity. Based on the Supremacy Clause, the touchstone of preemption is Congressional intent to override state tort claims. Preemption has both an express and an implied version. Davis noted the Court has tried to avoid nuances in its rulings, and there is a presumption against preemption. She read language from a recent preemption opinion to the effect that the text of the preemption clause, if susceptible of more than one meaning, will be construed narrowly. She then turned to Bruesewitz itself, stating the clause to be interpreted was unusual. She argued that the injury was not "unavoidable," because the manufacturer exercised discretion in creating the vaccine at issue. She concluded by stating of the FDA process that science aims at certainty, but it is difficult if not impossible to attain. Tort can function as a safety valve in those instances science fails.
Mal Wheeler (Wheeler Trigg O'Donnell), who has argued many significant preemption cases, sought to bring a "real world" perspective to the panel. In describing the progress of several of his major cases, he emphasized the role of fortuity in the unfolding of litigation, arguing that the certainty of preemption was preferable. He also challenged the notion that Wyeth altered the law of preemption, stating the case used language that had been used before.
In closing comments, Rabin stated that he did not believe tort suits would undermine the no-fault vaccination scheme, noting the difference between causation and design defect issues. Copland predicted "an enormous uptick" of plaintiff activity if vaccination design defect suits are not preempted. Davis lauded the vaccine program as a good example of interplay between administrative and tort approaches to injury; she emphasized the information-forcing role of discovery in tort. Wheeler concluded by noting that there was no empirical evidence that a U.S.-style tort system was necessary. He argued that the FDA needs more resources.
At the end of the panel's comments, Sharkey presented the Prosser Award to Judge Guido Calabresi, who was unable to attend due to a family wedding in Italy. Sharkey read a letter from Judge Calabresi, in which he expressed his delight at being honored. Mike Rustad rotated into the position of Chair of the Section.
AALS Panel on Disability and Tort Law
The official Torts & Compensation Section panel is not the only panel at AALS relevant to torts. A panel co-sponsored by the sections on Disability Law and Remedies covered the intersection of torts and disability law. The chair of the Disability Law Section, Mark Weber (DePaul), put together a great panel based on a call for papers. The panel occurred yesterday morning, but Alcatraz beckoned, and I'm only posting it today.
The panel started somberly as Weber noted the passing in October of disability rights champion Paul Steven Miller. The panel was dedicated to his memory.
Anne Bloom (Pacific McGeorge) presented a paper that originated in her exchanges with Miller, entitled "Reframing Tort Litigation: Redefining Plaintiffs with Disabilities." Bloom made 3 major points. First, tort law is based on a medical, as opposed to a social, model. The medical model "requires plaintiffs to present their bodies as a problem to be solved," while the social model regards disability as a social construct. Second, using a medical model in tort is problematic because it presents the disabled as lacking. Bloom questions whether tort litigation incentivizes plaintiffs to adopt a victim status. Third, Bloom asks what a social model as applied to tort would look like. Primarily, it would rely less on medical testimony and more on experiential testimony from others with the same condition as the plaintiff. She couples this with the idea that damages should be less focused on making whole and more focused on providing the plaintiff a mechanism for accountability. She explicitly draws on the civil recourse scholarship of John Goldberg, Ben Zipursky, and Jason Solomon.
Next Geoffrey Rapp (Toledo) presented "Meddling Reasonableness: Disability, Care, Access & Obligation in the Law of Tort." Rapp focused on one of the major ways in which tort and disability law intersect, the fact that tort liability standards take into account physical disabilities. He noted this has advantaging and disadvantaging aspects for the disabled. The advantaging aspects, which tend to receive more attention, favor the disabled by altering the standards for their perception of danger and ability to avoid danger using reasonable care. On the other hand, the more subjective standard can disadvantage the disabled by imposing an obligation to utilize special precautions and limiting access to some activities. Rapp noted several problems with the disadvantaging aspects. First, he said what a "reasonable person" should do is decided by judges, most of who are not disabled. Second, he questioned whether such impositions were a slippery slope. Third, he noted the subjective standard can block prohibit access and prevent integration. Finally, he noted the impositions can be costly. Rapp didn't have time to present his solution, so we will have to await the paper.
Laura Rothstein (Louisville) began by stating that the built environment was not what it should be for the disabled and she focused on the best way to improve it. Specifically, she questioned whether a tort remedy would help or hinder improvement of the built environment. She raised the possibility that statutory remedies such as the ADA, with an emphasis on injunctive relief, would be preferable. One particular concern she raised was the possibility that too many tort cases, some of questionable validity, had caused a judicial backlash.
Finally, Ani Satz (Emory) presented "Mental Impairment in Tort." Satz called attention to the different treatment in tort for physical and mental disabilities. In general, mental disabilities are not taken into account for purposes of tort liability. Satz challenged this dichotomy. First, she argued that the rule on mental disabilities was largely parroted from earlier cases (Weaver v. Ward: "if a lunatic hurt a man, he shall answer in trespass"). Second, she argued that such treatment is inconsistent with the treatment of physical disabilities in liability rules, comparative fault, and damages. Finally, she stated her goal was to create new legal assumptions about mental disabilities. Specifically: (1) tort should focus on incentivizing individuals and not their caretakers, (2) disabilities occur on a spectrum; it's not accurate to say that people are either insane or their disability is trivial, (3) any impairment, whether it be physical or mental, can affect functioning, and (4) individuals with mental impairment should not be viewed as able to form intent for intentional torts if they cannot form an intent to harm or offend, as opposed to simply intend contact.
All the panelists are still working on the papers, and indicated a desire for feedback.
January 06, 2011
Coverage of the Vaccines and Drugs Panel at AALS
By the time this post goes up, I'll be en route to San Francisco. For those of you who aren't attending the conference, I'll have coverage of the Torts & Compensation Section's Panel, "Vaccines and Drugs: A Brave New Tort World." Moderated by Cathy Sharkey (NYU), the panel includes James Copland (Manhattan Institute), Mary Davis (Kentucky), Robert Rabin (Stanford), and Malcolm Wheeler (Wheeler, Trigg, O'Donnell). If you plan to be at AALS, the panel is Saturday from 1:30-3:15 at the Parc 55. Earlier posts describing the panel are here and here.
December 22, 2010
AALS Torts & Compensation Section Meeting on Vaccines and Drugs
November 30, 2010
Vaccines & Drugs: A Brave New Tort World
AALS Torts & Compensation Chair Cathy Sharkey has put together a fantastic panel for the 2011 Annual Meeting in San Francisco. The overview:
The proliferation of vaccine and pharmaceutical drug-related injuries challenges our conceptions of how the tort system can best meet its compensatory and regulatory aims in the 21stcentury. In 1986, Congress created the National Childhood Vaccine Act, establishing a no-fault compensation scheme for vaccine-related injuries. In 2010, the U.S. Supreme Court granted certiorari in Bruesewitz v. Wyeth, Inc. to decide whether design defect claims against vaccine manufacturers are preempted. This follows closely on the heels of the U.S. Supreme Court’s decision in Wyeth v. Levine, finding that failure to warn claims against a drug manufacturer were not preempted. Our panelists—who include two prominent torts and products liability scholars (Mary Davis, who posted on a related issue on Monday, and Bob Rabin, who will guest blog with us next semester), a seasoned litigator (Mal Wheeler), and a policy expert (James Copland)—will explore whether it makes sense to have separate legal regimes for vaccines and other pharmaceuticals. They will also address issues at the core of tort law in the modern administrative state: the need for no-fault victim compensation and the respective roles of litigation and governmental regulation.
The program is Saturday, January 8th from 1:30 to 3:15. The location has not been finalized because of an ongoing labor dispute. I'll provide an update on the location when it's available. I hope to see you there.
September 15, 2010
Call for Papers: Civil Litigation as a Tool for Regulating Climate ChangeCall for Papers
Civil Litigation as a Tool for Regulating Climate Change
Conference on February 18, 2011
The purpose of this conference is to explore the interlinked policy, science, legal and political questions of utilizing the American litigation system, and particularly its tort theories of liability, to regulate climate change. Attempts to employ the courts as a tool for regulation are exemplified by cases such as Comer v. Murphy Oil, Connecticut v. American Electric Power, Co., and Native Village of Kivalina v. Exxon Mobile Corporation. Key presentations at the conference will be made by Professor Daniel Farber, Director of the Center for Law, Energy and the Environment, University of California at Berkeley; Professor Michael B. Gerrard, Director of the Center for Climate Change Law, Columbia University School of Law; and Professor Daniel Bodansky of the Schools of Sustainability and of Law, Arizona State University. Scholars and practitioners in the fields of environmental science, litigation, and tort law, among other areas, are encouraged to attend and present papers that will generate debate and discussion concerning the desirability of such litigation, strategies concerning it, and the impact it might have on efforts to bring about national legislation and international cooperation on global warming and related problems.
Valparaiso University School of Law issues this call for papers as part of the 25th Annual Monsanto Lecture/Conference on Tort Law and Jurisprudence, to be held at the School of Law on February 18, 2011. If you are interested in presenting, please submit an abstract of your proposed paper. Abstracts are due on or before December 1, 2010. A limited number of stipends are available to defray travel and lodging costs of some participants.
Submitted by Joellen Lind.
September 01, 2010
Medical Malpractice and Compensation in Global PerspectiveA major international conference, Medical Malpractice and Compensation in Global Perspective, will take place in Vienna, Austria, on 3-4 December this year. The conference will feature presentations by experts on the situation in 14 different countries or regions from every continent except Antarctica, describing and critically analyzing
- The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, social and private insurance, and the relationships among these various systems.
- The details of the applicable liability and compensation systems.
- Available empirical data on medical errors and adverse events, the operation of the systems designed to prevent and/or redress such errors and events, and the prevalence and impact of measures designed to reduce medical errors and adverse events, improve system performance or reduce system costs.
- Attitudes and concerns about the liability and compensation systems.
The conference is being organized by Richard Wright on behalf of the Chicago-Kent Law Review and Ken Oliphant on behalf of the Austrian Academy of Science’s Institute for European Tort Law in collaboration with the European Centre of Tort and Insurance Law. The papers from the conference, together with a comparative overview, will be published by the Chicago-Kent Law Review and by deGruyter as a title in the Institute’s Tort and Insurance Law series (jointly edited by the Centre).
Registration for the conference is now open, and the flyer is available here: Download MMCGP Flyer-email Vienna’s famous Christmas Markets will be in full operation!
August 24, 2010
Southeastern Law Scholars Conference
The Charleston School of Law is pleased to host a Southeastern Law Scholars Conference to be held on the campus of the Charleston School of Law on October 22-23, 2010. This regional conference will bring together junior law school faculty to present published papers or works-in-progress across all disciplines within the law. The conference is open to all junior law faculty (one to seven years teaching experience) at law schools in Georgia, North Carolina, and South Carolina. To ensure an atmosphere conducive to feedback, space is limited to twenty participants.
The conference will begin with dinner for all participants on Friday, October 22, 2010. On Saturday, October 23, 2010, conference participants will present either a completed paper or work-in-progress, and comment on the papers and ideas presented by others. As the host school, the Charleston School of Law will provide dinner on Friday, October 22, as well as breakfast and lunch on Saturday, October 23. There is no registration fee. Participants, however, are responsible for their own travel expenses.
To participate in the conference, please send an email to conference organizer, Associate Professor Sheila B. Scheuerman at email@example.com by Monday, September 20, 2010. Please note whether you will be attending dinner on Friday, October 22, in your email. In addition, please include the title of your presentation topic. A short abstract would also be helpful. Please direct any questions, comments or suggestions to Sheila B. Scheuerman at the email address above.
August 20, 2010
Bublick on Drunk Driving and Crashworthiness
Ellen Bublick (Arizona) has posted to SSRN The Tort-Proof Plaintiff: The Drunk in the Automobile, Crashworthiness Claims, and the Restatement (Third) of Torts. The abstract provides:
This article, for the Brooklyn Law School Symposium on the 10th Anniversary of the Restatement (Third) of Torts: Products Liability, looks at the difficult challenge courts face when they review crashworthiness claims that arise in conjunction with drunk driving. These claims highlight the difficulty of preserving structural accountability in tort law after the shift toward apportionment of liability that includes intentional, reckless and strict liability torts as well as negligence. The article suggests that certain court-created causal-apportionment doctrines help to preserve structural accountability. It also urges a more systematic confrontation of structural accountability questions in comparative responsibility systems like those recommended by the Restatement of Torts.
August 09, 2010
Reminder: Disability and Tort Law Proposals Due By August 31
Call for Papers
AALS Section on Disability Law
Disability and Tort Law
The Section on Disability Law will hold a program during the January,
2011 AALS Annual Meeting in San Francisco, California, on Disability and
Tort Law. Disability Law embraces many crucial Tort Law issues, such as
the measure of damages for incapacity and disfigurement, the
reasonable-person standard as applied to people with physical and mental
disabilities, duties of care relative to emotional and physical
injuries, the validity of wrongful life claims, and liability standards
for intentional infliction of emotional distress on people with
disabilities. Disability Law scholars have made important contributions
to the development of the law on these questions, starting with Jacobus
tenBroek, whose path-breaking article, The Right to Live in the World:
The Disabled in the Law of Torts, 54 Cal. L. Rev. 841 (1966), was
published 45 years ago this year. Due in no small part to the
intellectual groundwork of tenBroek and others, in the years since his
writing a worldwide disability rights movement has emerged, challenging
conventional assumptions about disability and the role of legal
institutions as they relate to disability. As tenBroek realized,
disability rights ideas may entail reexamining the goals and operation
of tort law in general and in specific application. This session asks
scholars chosen through a call for papers to discuss issues of
disability and tort law in an era of disability rights.
The Section on Disability Law seeks proposals for presentations on
disability and tort law for the AALS meeting in San Francisco January,
2011. Proposals should include an abstract of 500 words or fewer, and
may be accompanied by a working draft if the proposer chooses. The
section does not plan to publish the papers in a symposium, so
presenters are free to seek publication where they wish, though work
that will not be published before January 2011 will be strongly
Deadline for submission is August 31, 2010. Please email proposals to
Mark Weber at firstname.lastname@example.org. Selections will be made by late
September by the Executive Committee of the Section. Pursuant to AALS
policy, presenters will have to cover their own travel expenses and
registration fee for the annual meeting, and the Section is prohibited
from reimbursing such expenses. Under AALS rules, only faculty members
of AALS member and fee-paid law schools are eligible to submit
proposals. Foreign, visiting and adjunct faculty members, graduate
students, fellows and non-law school faculty are not eligible to submit.
Questions should be directed to Mark Weber, 312-362-8808,
August 04, 2010
ALI-ABA on "The Third Restatement of Torts: Everything You Wanted To Know, But Didn't Know Whom To Ask"
ALI-ABA presents a one-hour telephone seminar on The Third Restatement of Torts. The course description provides:
Confused about the Third Restatement of Torts? You are not alone. The Third Restatement is different from its predecessors. Instead of consecutive provisions in a single multi-volume work as in the past, the Third Restatement is prepared in discrete, subject-specific topics. Products Liability was restated and published in 1998, but a new volume of the Third Restatement was published just this year. And another volume was published in 2000 – with several other volumes slated for future years.
Find out what you wanted to know about the Third Restatement, but didn't know whom to ask. Led by the co-Reporter of the Third Restatement, a federal court of appeals judge, and two prominent lawyers involved in the Restatement process, this in-depth and insightful program will examine the most recent volume, Liability for Physical and Emotional Harm, covering the core of tort doctrine for personal injury and property damage.
The distinguished faculty will outline this Restatement's significant modifications to the Second Restatement's provisions covering duty, negligence, factual cause, proximate cause, liability for emotional harm, and landowner obligations. Proof of causation in toxic substances litigation, a major area of contemporary tort litigation, will also be discussed.
Mike Green (Wake) is the planning chair for the seminar.
June 09, 2010
Chamallas & Wriggins: "The Measure of Injury"
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.
May 20, 2010
Gender, Race, and Tort Law
In less than two weeks, The Measure of Injury: Race, Gender, and Tort Law, the new book by Martha Chamallas (Ohio State) and Jenny Wriggins (Maine), will be available from NYU Press.
At Law & Society in Chicago next week, there will be an "Author Meets Readers" panel on the book. Scheduled for Friday, May 28 from 4:30-6:15 at the Renaissance Hotel, the panel will be chaired by Anne Bloom (University of the Pacific). Readers are: Julie Davies (University of the Pacific), Lisa Pruitt (California, Davis), Catharine Wells (Boston College), and me.
May 06, 2010
AALS 2011: Vaccines and Drugs: A Brave New Tort World
The proliferation of vaccine and pharmaceutical drug-related injuries challenges our conceptions of how the tort system can best meet its compensatory and regulatory aims in the 21st century. In 1986, Congress created the National Childhood Vaccine Act, establishing a no-fault compensation scheme for vaccine-related injuries. In 2010, the U.S. Supreme Court granted certiorari in Bruesewitz v. Wyeth, Inc. to decide whether design defect claims against vaccine manufacturers are preempted. This follows closely on the heels of the U.S. Supreme Court’s decision in Wyeth v. Levine, finding that failure to warn claims against a drug manufacturer were not preempted. Our panelists—who include two prominent torts and products liability scholars (Mary Davis and Bob Rabin), a seasoned litigator (Mal Wheeler), and a policy expert (James Copland)—will explore whether it makes sense to have separate legal regimes for vaccines and other pharmaceuticals. They will also address issues at the core of tort law in the modern administrative state: the need for no-fault victim compensation and the respective roles of litigation and governmental regulation.
Call for Papers: Disability and Tort Law
March 23, 2010
Torts Fun at the Association for the Study of Law, Culture and the Humanities Annual Conference
We joined Byron Stier (Southwestern) at Brown University last weekend on a panel on "Pluralism in Tort Law and Litigation" at the Association for the Study of Law, Culture and the Humanities Annual Conference.
Our thanks to the panel's moderator and organizer, Alan Calnan (Southwestern), for inviting us to participate. In a truly Herculean effort, Alan flew back from Providence on Saturday afternoon, and competed in the Los Angeles Marathon on Sunday. Congratulations to Alan for successfully completing the marathon!
- Sheila and Chris