Monday, October 26, 2015
Friday, October 23, 2015
Thomas Eaton and Mike Wells have posted to SSRN Attorney's Fees, Nominal Damages, and Section 1983 Litigation. The abstract provides:
Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.
We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented and the factual record is opaque regarding what and how the plaintiff’s constitutional rights were violated. These complexities render Farrar a poor case upon which to frame a rule regarding the relationship between damage awards and the proper calculation of attorney’s fees. Second, the “low award, low fee” approach is inconsistent with congressional intent. When Congress enacted § 1988 it emphasized the public benefit of vindicating constitutional rights and deterring constitutional violations. No less important, it recognized that the harms caused by constitutional wrongs often are not easily measured in terms of traditional monetary remedies – a circumstance that would discourage attorneys from taking on the representation of plaintiffs in this important set of cases. The low award/low fee approach contravenes these purposes because it effectively discourages the bringing of large numbers of highly meritorious cases involving the abridgement of constitutional rights. Indeed, the effect of this approach is perverse, because it blocks the recovery of meaningful attorney’s fees in the very set of low damages-serious constitutional wrong cases in which the need to incentivize the provision of legal services is most pressing.
Updated: Comments from George Conk.
Thursday, October 22, 2015
A recent NPR/ProPublica series on workers' compensation caused 10 Democratic Senators to urge action on the part of the Labor Department:
Ten ranking Democrats on key Senate and House committees are urging the Labor Department to respond to a "pattern of detrimental changes in state workers' compensation laws" that have reduced protections and benefits for injured workers over the past decade.
In a letter to Labor Secretary Thomas Perez, the lawmakers cited an investigation by NPR and ProPublica, which found that 33 states have cut workers' comp benefits, made it more difficult to qualify for benefits or given employers more control over medical care decisions.
The letter also referred to NPR/ProPublica stories last week that detailed an emerging trend of permitting employers to drop out of state-regulated workers' comp programs, write their own injury plans and limit benefits on their own.
NPR has the story.
Wednesday, October 21, 2015
Tuesday, October 20, 2015
Monday, October 19, 2015
Lynn Baker has posted to SSRN Alienability of Mass Tort Claims. The abstract provides:
This Article was prepared for the 19th Annual Clifford Symposium on Tort Law and Social Policy, "A Brave New World: The Changing Face of Litigation and Law Firm Finance." It seeks to contribute to the larger conversation about whether the United States should permit innovative forms of litigation financing for personal injury claims by examining a hypothetical regime with expanded alienability of mass tort personal injury claims. The Article focuses on this subset of claims because arguments in favor of complete alienability of personal injury claims are strongest with regard to these claims, and many of the staunchest critics of alternative litigation financing have expressed particular concern about its implications in the mass tort context. Thus, those not persuaded by the Article's analysis are unlikely to be persuaded by arguments for expanding the alienability of personal injury claims more generally.
The Article begins by describing the current state of affairs for both clients and their lawyers regarding the alienability and prosecution of mass tort personal injury claims. Despite various longstanding restrictions on the alienability of personal injury claims in the United States, substantial alienability of these claims is permitted and is engaged in by both clients and their attorneys. Part II discusses the aspects of the prosecution of mass tort claims in the United States that make these claims especially good candidates for complete alienability.
Part III discusses the benefits and costs to mass tort claimants and their attorneys of a hypothetical regime under which a claimant could sell her entire claim to a law firm, rather than retain the firm to serve as her counsel on a contingent fee basis. This Part also discusses various practical issues that would need to be resolved before a claim-sale option for mass tort personal injury claims could become a reality. Part IV goes on to analyze the normative concerns that underlie the existing constraints on claim sales. It reveals that none of these concerns is a persuasive grounds for prohibiting mass tort claimants from selling their claims to an attorney (or, perhaps, to any other potential purchaser).
It is not at all clear that a market for mass tort personal injury claims would flourish even if the existing ethical and legal constraints were relaxed. But that possibility does not diminish the importance of the Article's larger conclusion that there are no compelling normative or economic reasons to prohibit the complete alienability of mass tort personal injury claims in the United States.
Friday, October 16, 2015
Lydia Nussbaum has posted to SSRN A Crucible for Corrective Justice: Legislative Experiments with ADR to Reform the Medical Malpractice System. The abstract provides:
The American tort system has been the target of medical malpractice reform efforts for close to fifty years. Using different “crisis” narratives, reform advocates argue that litigation costs must be contained, that alternative methods for compensating injured patients should replace the tort system, and that healthcare delivery systems must change to reduce the incidence of patient injury. In pursuit of these different reform objectives, state legislatures enact laws that, for medical malpractice claims, change both substantive tort doctrine and procedure. For procedural reforms, policymakers turn repeatedly to ADR to fix perceived problems with the medical malpractice system, enacting statutes that mandate or direct parties to utilize specific ADR processes. This Article argues that ADR procedural interventions have substantive reform goals in the medical malpractice context. Ironically, these successive generations of medical malpractice ADR demonstrate a diminishing primacy of tort, rendering ADR not only an alternative process but also a venue for alternative models of corrective justice.
Thursday, October 15, 2015
A Manhattan woman sued her then eight-year-old nephew for an enthusiastic hug that knocked her down and broke her wrist. A jury found the nephew was not liable. I assume the homeowner's policy was the target, but it couldn't have helped that she testified that it hurt for her to hold a plate of hors d'oeuvres. The Connecticut Post has the story.
Wednesday, October 14, 2015
Richard Wright has posted to SSRN The New Old Efficiency Theories of Causation and Liability. The abstract provides:
For the last forty years, efficiency theorists have attempted to demonstrate that tort liability in general and negligence liability in particular can best/only be explained by the hypothesis that judges are trying to maximize aggregate social welfare. Thirty years ago I published a pair of articles criticizing these attempts, noting especially the efficiency theorists' inability to explain and justify the factual causation requirement in tort law. Nevertheless, the efficiency theorists have continued to make the same arguments. In this paper, I canvass the old arguments and their current restatements, including the attempts by some of the leading theorists to equate ex post analysis of actual causation with ex ante analysis of negligent conduct and attempts by others to explain the actual negligence liability rules. None of the rules proposed by the efficiency theorists is consistent with the practice of the courts, and none of them would promote efficient deterrence. Worse yet, the least descriptively plausible negligence liability rule proposed by the efficiency theorists is the one likely to be the least inefficient in actual practice, while the one assumed by most efficiency theorists will be the most inefficient. The fundamental problem with the efficiency theories is that they assume that the focus of law should be and is on the maximization of aggregate social welfare, rather than justice -- the promotion of everyone's equal external freedom in their interactions with others.
Tuesday, October 13, 2015
Wisconsin law does not allow the parents of adult children to sue on their behalf for medical malpractice. For years, bills have been introduced to change the law (here is a post from last session), and Senator Harris Dodd is trying again. This bill would allow parents to sue for their children up to age 27 if they die as the result of medical error. This year's bill is scaled back:
Earlier versions would have allowed adult children to sue if a parent died because of malpractice and also called for allowing parents of children of any age to sue for malpractice in death cases.
The Milwaukee Wisconsin J0urnal Sentinel has the story.
Monday, October 12, 2015
Friday, October 9, 2015
Nicholas McBride (Cambridge) has posted to SSRN The Humanity of Private Law--An Introduction. The abstract provides:
This is a draft of the introduction to a book I am working on called The Humanity of Private Law – which book will attempt to present a new account of private law as centred around the promotion of a particular vision of human flourishing.
As well as introducing the main claims of the book, this introduction also discusses: (1) economic and Kantian explanations of private law; (2) the explanations of tort law put forward by John Goldberg and Benjamin Zipursky, and by John Gardner; (3) the nature of corrective justice; (4) the nature of morality; (5) the justifiability of strict legal duties to succeed; (6) the difference between explanations and evaluations of private law; and (7) three different models of human flourishing.
Thursday, October 8, 2015
The Saskatchewan government has approved changes to tort and no-fault programs recommended after a review of the auto system.
Among others, the changes include:
• When an impaired driver causes a collision and is killed, allowing an innocent party or the family impacted to sue for pain and suffering or bereavement damages (No Fault and Tort coverage);
• Expanding the list of offences that trigger the ability for an innocent party to sue for pain and suffering or bereavement damages to include: criminal negligence causing death or bodily harm, criminal negligence causing bodily injury, flight from a peace officer and dangerous operation while street racing (No Fault and Tort coverage);
• Updating amounts paid for living expenses to reflect current market rates, increasing the overall amount available for assistance to those with cognitive impairment and implementing a process to regularly review the amounts for alignment with market rates (No Fault coverage);
• Ending the practice of reducing income benefits by the amount a customer receives through Canada Pension Plan (CPP) disability (No Fault coverage); and
• Ensuring Tort income benefits maintain pace with minimum wage (Tort coverage).
Canadian Underwriter has the story.
Volvo announced it will accept "full liability" for accidents when one of its self-driving cars is operating in autonomous driving mode. The move would simplify liability issues and perhaps reduce legal barriers to autonomous vehicles. Automobile has the story.
Thanks to Adam Scales for the tip.
Wednesday, October 7, 2015
Last week, the Nevada Supreme Court unanimously upheld the state's $350,000 med mal cap on non-economic damages. A lower court had ruled the cap violated the constitutional right to trial by jury. The court also overturned the lower court's holding that the cap applies separately to each plaintiff and each defendant. The Las Vegas Review-Journal has the story.
Tuesday, October 6, 2015
Monday, October 5, 2015
Friday, October 2, 2015
2016 AALS Annual Meeting, Torts & Compensation Systems Section panel; New York City; Friday, January 8, 2016 from 1:30-3:15 (room to be announced)
On March 14, 1916, New York’s high court issued its decision in MacPherson v. Buick Motor Co. Writing for the court, Judge (later Justice) Benjamin Cardozo held that product manufacturers must take care to manufacture products that do not injure consumers. A century later, MacPherson is considered a landmark of tort law, as well as an exemplar of common law reasoning. It is credited with, among other things, contributing to the demise of laissez-faire thinking in American law and laying the groundwork for the modern doctrine of strict products liability. Yet what the decision accomplished, both as a matter of tort doctrine and jurisprudence, also remains controversial. On the occasion of MacPherson’s centenary, a panel of renowned scholars will examine the significance and influence of the case from multiple perspectives, including its influence of the evolution of the “risk society”, its reception and influence in the United Kingdom and Europe, and its place in tort theory and private law in general.
Papers will be presented by:
Anita Bernstein, Brooklyn Law School
John C. Goldberg, Harvard Law School & Benjamin C. Zipursky, Fordham University School of Law
Franz Werro, Georgetown University Law Center
John F. Witt, Yale Law School
Moderator: Anthony J. Sebok, Benjamin N. Cardozo School of Law
Papers will be published in a forthcoming issue of the Journal of Tort Law
Wednesday, September 30, 2015
Olga Voinarevich has published An Overview of the Grossly Inconsistent Definitions of "Gross Negligence" in American Jurisprudence. The abstract provides:
On one side of the spectrum, certain courts, such as New York, define gross negligence as conduct that borders intentional wrongdoing. On the other side of the spectrum, courts continue to recognize the degrees of negligence and differentiate between various degrees of care. Between these two approaches, there is inconsistency. For instance, some Illinois decisions equate gross negligence to recklessness, while others define it as nothing more than “very great negligence.” This Article concludes that the latter may be the proper standard relied upon by a majority of the recent decisions interpreting Illinois law, but advocates for a uniform definition to ease the burden on the parties attempting to define this imprecise term. Lastly, it provides a table of various definitions of “gross negligence” among all fifty states.
Tuesday, September 29, 2015