Thursday, March 8, 2018
David Partlett has posted to SSRN Remedies for Breach of Privacy: A Study of a Different Hedgehog. The abstract provides:
This article was written as stating and commenting on the American law of remedies in the tort law of privacy. It will appear in a book edited by Jason Varuhas and Nicole Moreham to be published in 2018 by Hart Publishing (UK). After examining the theoretical basis of American remedies law with its differences from, and similarities to, the theoretical foundations in other common law and civil law jurisdictions, the paper probes the remedies as shaped by the substantive interests of protection of property and the autonomy enhancing purposes of privacy protection. Each of the traditional categories of the tortious protection of privacy as fashioned by William Prosser touch free speech interests. To the extent that privacy protections trench on those free speech interests, as realized in the US Supreme Court’s aggressive first amendment jurisprudence, the remedies are thus quite idiosyncratic compared with remedies elsewhere. For example injunctive relief is crimped and damages are constricted. The remedial law must be understood against the first amendment to which every other interest bends its knees.
Wednesday, March 7, 2018
Hillel Levin & Michael Wells have posted to SSRN Qualified Immunity and Statutory Interpretation: A Response to William Baude. The abstract provides:
In his article, Is Qualified Immunity Unlawful?, Professor Baude argues that the doctrine of qualified immunity under section 1983 is unlawful because the doctrine did not exist at the time section 1983 was enacted. We disagree. Section 1983 is a common law statute. Consequently, its meaning and application was not fixed at the time of original passage. In this article, we explain why.
Although we are sympathetic to Professor Baude’s implicit policy-based critique of the doctrine of qualified immunity, we believe his analysis is flawed. The better and more likely way to improve the doctrine is through the common law method.
Monday, March 5, 2018
The Kentucky Senate passed a comprehensive med mal reform bill on Thursday, and now it heads to the state House. The bill would do a number of things:
Among its many provisions, Senate Bill 20 would require medical malpractice lawsuits to contain an affidavit of merit. That’s a document stating that at least one doctor agrees the claim has merit.
A medical review panel opinion in favor of a patient would fulfill the affidavit of merit requirement. Senate Bill 4 from 2017 created panels of experts to review claims of medical error or neglect. If the medical review panel finds in favor of the medical provider, however, the patient would still have to get an affidavit of merit to advance to court.
A second provision would impose contingency caps on attorney fees in medical malpractice cases. An amendment would set those caps at no more than 33 percent of any awarded damages.
A third provision is known as the “I’m sorry” clause. It would allow health care workers to express condolences or apologies to patients or families without fear of having those words used against them in a lawsuit.
A fourth would regulate fees for copying medical records. An amendment included an exemption from medical record copying fees for pro bono and Social Security disability cases.
The Ohio County Monitor has the story.
Saturday, March 3, 2018
In the early 1990s, Louisiana adopted a med mal cap of $500,000, which has never been adjusted for inflation. The cap does not apply to "future medical expenses." State senators are debating whether the cap should be raised. Bossier Press-Tribune Online has the story.
Friday, March 2, 2018
Benjamin McMichael & Kip Viscusi have posted to SSRN Taming Blockbuster Punitive Damage Awards. The abstract provides:
Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a broader level, the Supreme Court has announced a general limitation on punitive damages under the Due Process Clause of the Fourteenth Amendment, which applies to all cases and contains very few exceptions. Under State Farm v. Campbell, punitive damages awards that exceed the accompanying compensatory award by more than a factor of ten will generally violate due process. However, this limit is substantially higher than the punitive damages caps that some states have put in place.
This Article provides the first empirical analysis of the effect of state punitive damages caps on blockbuster awards and offers the first comparison of the effect of these reforms with the effect of the Supreme Court’s current constitutional doctrine on punitive damages. Understanding the roles of these legal regimes in how the largest punitive damages awards are imposed provides unique insight into how different factors affect courts’ decisions to award punitive damages. Relying on this insight, as well as previously developed empirical evidence, we argue that it is time for a new constitutional doctrine on punitive damages. In particular, we argue that the Supreme Court should incorporate the lessons learned from the different effects of state punitive damages caps to lower the limit placed on punitive damages under the Due Process Clause. For cases involving financial loss, punitive awards more than three times the size of the accompanying compensatory award will generally violate due process. For cases involving severe injuries, such as wrongful deaths, the total value of punitive damages and compensatory damages should not exceed economic estimates of the value of a statistical life, which is an economic deterrence measure. This proposed structure would better achieve the Court’s goal of returning predictability to punitive damages awards, blockbuster and otherwise.
Thursday, March 1, 2018
The Supreme Judicial Court of Massachusetts has ruled that the Massachusetts Tort Claims Act insulates school districts from paying damages for injuries suffered by victims of bullying. The case was filed on behalf of a bullied 4th grader who eventually was pushed down the stairs and suffered permanent paralysis. The Boston Globe has the story.
Monday, February 26, 2018
Wednesday, February 21, 2018
Tuesday, February 20, 2018
Ori Herstein has posted to SSRN Legal Luck. The abstract provides:
Explaining the notion of "legal luck" and exploring its justification. Focusing on how legal luck relates to "moral luck," legal causation and negligence, and to civil and criminal liability.
Friday, February 16, 2018
Lauren Miller (Student, Maryland) has posted to SSRN Taking a Chance on Patient Life: Suicidal Patients, Involuntary Admissions, and Physician Immunity in Maryland. The abstract provides:
Maryland jurisprudence exempts from liability any physician that elects not to involuntarily admit a mentally ill patient into treatment. This article explores through both statutory and case law jurisdictional differences in the duty owed by physicians to their foreseeably suicidal patients. These findings are applied to Chance v. Bon Secours Hospital and used to advocate against expanding statutory immunity to physicians that recklessly release involuntarily admitted patients from treatment before improvements to their mental health are achieved.
Wednesday, February 14, 2018
A state lawmaker has filed a bill to shift Michigan from a no-fault auto system to tort law. Michigan has the highest insurance rates in the nation; it is also the only state with an unlimited amount of lifetime benefits. Florida is also considering reverting to the tort system. WTOL 11 has the story.
Tuesday, February 13, 2018
Hart Publishing announces The Duty of Care in Negligence by James Plunkett. The blurb provides:
This book aims to provide a detailed analysis and overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. A new structure through which duty problems can be analysed is also proposed. It is hoped that the book provides some fresh insights and clarity of the concept to the reader.
The flyer, with a 20% discount, is available here: Download Plunkett
Monday, February 12, 2018
The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law. The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law's research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information is available here.
Friday, February 9, 2018
The Fordham Law Review is hosting a symposium on Friday, February 23. Speakers are: Mark Behrens, John Beisner, Andrew Bradt, Stephen Burbank, Scott Dodson, Howard Erichson, Sean Farhang, Jonah Gelbach, Maria Glover, Deborah Hensler, Alexandra Lahav, and Judge Lee Rosenthal. From the announcement:
In the first year of the Trump presidency, several litigation reform bills passed the House of Representatives. The fate of these bills remains uncertain, but the set of issues they raise will not disappear anytime soon. Legal reform advocates see an opportune moment to pursue an aggressive reform agenda, while critics view the bills as threats to civil justice. In addition, the Trump administration has been at the center of a swirl of litigation, raising issues about the role and processes of civil justice. This one-day symposium will address the prospects of civil litigation reform in the Trump era, taking seriously both the threat to the justice system and the opportunities for improving the litigation process.
An Illinois appellate court has cut a med mal verdict from $22M to $7M because the plaintiff died the day before the verdict was handed down. Among the reasons cited was that the money for the plaintiff's suffering was no longer relevant. The Peoria Journal Star has details.
Thursday, February 8, 2018
Last year, Kentucky passed a law requiring med mal cases to be reviewed by a panel prior to advancing to court. Now another reform is working its way through the legislature. Senate Bill 20, which just advanced out of committee, would place caps on a plaintiff's attorney's fees and prohibit expressions of sympathy from being used against physicians in med mal cases. The story from ctpost is here.
Monday, February 5, 2018
Bob Rabin has posted to SSRN Accommodating Tort Law: Alternative Remedies for Workplace Injuries. The abstract provides:
In this paper, I explore the often-contested territory that tort occupies within the more expansive domain of worker’s compensation. This exploration reveals that, far from being substitutes, tort and worker’s compensation are, in fact, deeply and inextricably joined: A complementarity that underscores the trade-offs intrinsic to each system. Whatever the source and scale of harm, the incentives to pursue a third-party tort suit—in light of the bar on a direct claim against the employer—are straightforward. Worker’s compensation no-fault benefits feature stringent caps on economic loss beyond medical expenses, and bar non-economic recovery altogether. By contrast, tort provides the prospect of recovery for total wage loss, as well as pain and suffering, which is considerably more remunerative than worker’s compensation benefits—particularly in the case of more serious injuries or workplace-related fatalities.
These tort claims, in turn, can raise a related question that again demonstrates the inextricable tie between worker’s compensation and tort: Whether the third-party product manufacturer, if responsible in tort, can recover a portion of the tort award through a contribution claim against the employer, despite the ban on a direct employee tort claim against the employer. Correlatively, there is the prospect of the employer seeking to recapture worker’s compensation benefits paid to the employee through a subrogation claim against the third-party tort defendant.
These intersecting claims most frequently involve accidental harm in the workplace, rather than intentional misconduct or reckless disregard for the safety of workers. But in the latter cases of egregious employer misconduct, most states recognize an exception from the bar on tort recoveries. As a consequence, these are situations where tort recovery may be a substitute for worker’s compensation rather than standing side-by-side with tort, as in accidental harm cases. Similarly, Title VII claims for sexual harassment in the workplace stand as a distinct tort-type source of recovery entirely apart from the worker’s compensation system.
Friday, February 2, 2018
John Gardner has posted to SSRN Tort Law and Its Theory. The abstract provides:
This paper explores the body of scholarly writing known as 'tort theory', and in particular the polarization of 'economic' and 'moral' approaches to the subject. It queries the ambitions, the discourses, and the presuppositions of work on both sides of that divide. In particular it investigates: the sense in which both approaches are (and are not) inevitably 'normative'; what counts as tort law, and what counts as a tort, according to the two approaches; and what it means (and what it does not mean) to think of tort law as 'instrumental'.
Wednesday, January 31, 2018
At Law 360, Y. Peter Kang discusses 4 constitutional challenges to state tort reforms: 1. KY's med mal review panels; 2. ND's med mal damages cap, struck down by a state trial judge as unconstitutional; 3. the Oklahoma Supreme Court's review of a $350,000 cap on noneconomic damages; and 4. the Wisconsin Supreme Court's review of an appellate court holding that its noneconomic damages cap is unconstitutional.
Tuesday, January 30, 2018
The state legislature and Governor Cuomo have reached a deal on Lavern's Law, the only bill remaining from the last session on which Cuomo has taken no action. The Daily News reports:
Gov. Cuomo and state legislative leaders have struck a deal for the medical malpractice bill known as Lavern’s Law to be signed into law.
Cuomo plans to sign the bill this week, after the Legislature votes to amend the version it passed in June. The bill would start a 2 1/2-year window to bring malpractice cases involving cancer when the patient discovers the error. Currently, the clock starts when the mistake occurs — meaning patients may lose their chance to sue before they even find out there’s been an error.
Under the amended version, people whose statute of limitations ran out in the last 10 months will get a six-month window to sue. The bill the Legislature passed offered a window for cases going back seven years.
The changes also make it more clear that the new rules apply only to cancer, not other illnesses.
The full article is here.