Wednesday, July 29, 2015
Tuesday, July 28, 2015
In Iowa, the reform I reported on here has become law. It has similarities to a program at the University of Michigan, which has also inspired laws in Massachusetts and Oregon. Readers of the blog know I am a big fan of programs that aim to more swiftly and certainly resolve disputes without litigation, especially in med mal cases.
The CANDOR law is reviewed at JD Supra.
Monday, July 27, 2015
From Cynthia Bond:
Greetings Law Teacher Colleagues:
I am working on an article this summer on uses of popular culture in the law school classroom. I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).
To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area. If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:
Thanks in advance for your time and have a wonderful rest of summer!
The John Marshall Law School
Friday, July 24, 2015
At JD Supra, Vonnetta Benjamin & Michael Sullivan of Womble Carlyle address a recent Georgia Supreme Court case:
The Georgia law regarding apportionment of liability in tort cases became more clear this month with the Georgia Supreme Court’s decision in Zaldivar v. Prickett, et al. Before the Court was the question of whether a non-party which is not “liable” to the plaintiff as a matter of law could be considered by the trier of fact as a non-party responsible, in whole or in part, for the “fault” which caused the underlying injury thus reducing the liability of the defendant by the percentage of that fault under O.C.G.A. § 51-12-33, commonly known as the Georgia Apportionment Statute. The Court’s answer was “Yes”.
The rest of the column is here.
Thursday, July 23, 2015
Wednesday, July 22, 2015
In 2013, the Florida legislature passed a med mal reform requiring claimants filing lawsuits to sign forms authorizing ex parte communications:
In ex parte communications, for example, defense attorneys representing a doctor accused of malpractice could get personal health information about the patient involved in the case. That information could come from other doctors who treated the patient, and disclosure could occur without the patient's attorney being present.
In October of 2014, the Eleventh Circuit held that the reform did not violate HIPAA.
Now the 1st District Court of Appeal has upheld the constitutionality of the reform from challenges that it violates the right to privacy and separation of powers. CBS Miami has the story.
Tuesday, July 21, 2015
Monday, July 20, 2015
What do you teach in your advanced torts class (not the second semester of first-year Torts, but a torts class for 2L's and 3L's)? I teach an upper-level class of Products Liability (and also Insurance), but I don't teach "Advanced Torts." My sense is that people tend to teach defamation and the economic torts. A TortsProf has asked that I solicit syllabi to help in planning such a course. Because our comments feature does not allow attachments, if you are willing to send a syllabus to help, please e-mail me at email@example.com and I will pass it on. Thank you.
Saturday, July 18, 2015
Jay Feinman sends the following:
The Rutgers Center for Risk and Responsibility is holding its fourth annual insurance workshop on Friday, October 2, 2015. This is a day-long event on the Camden campus with an opportunity to present and receive comments on drafts or less fully formed works-in-progress on topics related to insurance law or other aspect of managing or regulating risk. For more information, contact Professor Rick Swedloff, firstname.lastname@example.org
Friday, July 17, 2015
Thursday, July 16, 2015
Keith Hylton has posted to SSRN Information and Causation in Tort Law: Generalizing the Learned Hand Test for Causation Cases. The abstract provides:
This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of tort law.
Wednesday, July 15, 2015
How does looking at tort law from a psychology lens differ from looking at it through an economic lens?
“We look at human beings as they actually are, not as hypothetical economic humans,” Hans told Corporate Crime Reporter in an interview last week. “We are human. We have foibles. We take short cuts in our decision making. We rely on heuristics. We pay more attention to the here and now as opposed to what might happen in the future. We commingle things that should be separate. We are decent decision makers but we are fallible decision makers. Psychology brings to tort law the ways in which actual real world decision making affects the operation of tort law.”
Tuesday, July 14, 2015
At JD Supra, Chris Jones of Sands Anderson in Virginia discusses some of the considerations, which include the expansion of products liability into automobile accident cases and the potential need for a post-sale duty to warn in jurisdictions that have not adopted it.
Monday, July 13, 2015
Friday, July 10, 2015
Herb Kritzer & Neil Vidmar have posted to SSRN When the Lawyer Screws Up: A Portrait of Legal Malpractice Claims and Their Resolution. The abstract provides:
All professionals make mistakes and sometimes those mistakes harm the clients or patients. What happens when this occurs and the professional involved is a lawyer? Surprisingly, there is virtually no empirical research on legal malpractice. In contrast, there is an extensive empirical literature on medical malpractice and the legal handling of legal malpractice claims. This literature examines the frequency of medical malpractice claims, how they are handled, how they are resolved, and their impact on access to and cost of medical care. The absence of a similar literature concerning legal malpractice is at least somewhat surprising given that there are roughly equal numbers of private practice lawyers and patient care physicians in the United States.
In this paper we provide an empirical portrait of legal malpractice claims and their resolution. We draw on a wide range of data sources including reports published by the American Bar Association, reports from individual insurers, and data sets obtained from insurance regulators in Florida and Missouri. We examine a wide range of questions including the areas of practice producing large numbers of claims, the types of errors alleged in the claims, the practice settings and experience of the lawyers subject to the claims, the likelihood that claims are successful and the amounts paid in damages in successful claims and how the outcomes vary depending on factors such as the area of practice and the size of firm, and the frequency and outcomes of trials of legal malpractice cases including some comparisons to trials involving other types of professional malpractice.
A central finding of our analysis is that there are essentially two hemispheres of legal malpractice paralleling the two hemispheres of the bar identified by Heinz and Laumann in their study of the Chicago bar. In the personal services sector one finds mostly relatively small stakes cases often involving plaintiffs’ personal injury, real estate, family law, and collections and bankruptcy; much of the insurance coverage is provided by mutual insurers started by and/or affiliated with state bars. In the corporate sector stakes tend to be very large, and cases involve corporate matters, corporate litigation, and high stakes areas such as intellectual property and securities; insurance is provided by either by specialized insurers or through brokers who put assemble a group of insurers to cover a large law firm.
This is a related piece to work the pair released earlier this year.
Thursday, July 9, 2015
Relying on the Florida Supreme Court's ruling that a cap on emotional distress damages in wrongful death cases is unconstitutional, an intermediate appellate court (the Fourth District Court of Appeal) ruled the state's med mal cap on noneconomic damages violates the equal protection clause of the Florida Constitution. Courthouse News Service has the story.
Wednesday, July 8, 2015
Tuesday, July 7, 2015
Monday, July 6, 2015
I have spent the last several weeks teaching in Venice; I'm home now and blogging should be much more consistent again.
I taught a class entitled "Tort Law in Global Perspective," using Julie Davies and Paul Hayden's Global Issues in Tort Law. I liked the book and I believe my students did as well. It is relatively cheap and not physically heavy. It provides a good overview of doctrinal differences among countries in many major areas of tort law. It covers the Alien Tort Statute, Torture Victim Protection Act, Anti-Terrorism Act, Foreign Sovereign Immunities Act, and Warsaw Convention. It was a great experience for me because I have a better understanding of comparative tort law. And, of course, I got to spend several weeks in Venice.
Tuesday, June 30, 2015
Nora Freeman Engstrom has posted to SSRN A Dose of Reality for Specialized Courts: Lessons from the VICP. The abstact provides:
The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?
The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.