Tuesday, August 11, 2015
Sir Geoffrey Palmer QC has posted to SSRN the chapter of his 2013 memoir covering his role in various tort reforms, including New Zealand's move away from tort. Entitled Big Change, Exciting Adventures: Accident Compensation, the abstract provides:
This comprises a chapter of the author’s 2013 memoir that was published by the Victoria University Press, Wellington, New Zealand. It concerns New Zealand’s novel accident compensation scheme that replaces tort law as a means of compensating the victims of accidents. It reviews the author’s involvement with the reform from its earliest days up until the present. It traces the difficulties with enacting the scheme, its administration and its financing. It also reviews efforts to take the reform to Australia where it was not enacted. It reflects upon the difficulties of securing general deterrence through the allocation of accident costs.
Monday, August 10, 2015
Alexandra Lahav has posted to SSRN Participation and Procedure. The abstract provides:
How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.
Thursday, August 6, 2015
Wednesday, August 5, 2015
Joanna Schwartz has posted to SSRN How Governments Pay: Lawsuits, Budgets, and Police Reform. The abstract provides:
For decades, scholars have debated the extent to which financial sanctions cause government officials to improve their conduct. Yet little attention has been paid to a foundational empirical question underlying these debates: When a plaintiff recovers in a damages action against the government, who foots the bill? In prior work, I found that individual police officers virtually never pay anything towards settlements and judgments entered against them. But this finding begs another question — where does the money come from, if not from individual officers? The dominant view among those who have considered this question is that settlements and judgments are usually paid from jurisdictions’ general funds with no financial impact on the involved law enforcement agencies, and many have suggested that agencies would have greater financial incentives to improve behavior were they required to pay settlements and judgments from their budgets. But, beyond anecdotal information about the practices in a few large agencies, there has been no systematic inquiry into the source of funds used by governments to satisfy suits.
In this Article, I report the results of the first nationwide study to examine how cities, counties, and states budget for and pay settlements and judgments in cases against law enforcement. Through public records requests, interviews, and other sources, I have collected information about litigation budgeting practices in 100 law enforcement agencies across the country. Based on the practices in these 100 jurisdictions, I make two key findings. First, settlements and judgments are not always — or even usually — paid from jurisdictions’ general funds; instead, cities, counties, and states use a wide range of budgetary arrangements to satisfy their legal liabilities. All told, half of the law enforcement agencies in my study financially contribute in some manner to the satisfaction of lawsuits brought against them. Second, having a department pay money out of its budget towards settlements and judgments is neither necessary nor sufficient to impose a financial burden on that department. Some law enforcement agencies pay millions from their budgets each year towards settlements and judgments, but the particularities of their jurisdictions’ budgeting arrangements lessen or eliminate altogether the financial impact of these payments on these agencies. On the other hand, smaller agencies that pay nothing from their budgets toward lawsuits may nevertheless have their very existence threatened if liability insurers raise premiums or terminate coverage as a result of large payouts. These findings should expand courts’ and scholars’ understandings of the impact of lawsuits on police reform efforts, inspire experimentation with budgeting arrangements that encourage more caretaking and accountability by law enforcement, and draw attention to the positive role local government finance officials and insurers can and do play in efforts to promote risk management and accountability in policing.
Tuesday, August 4, 2015
A lawmaker in Wisconsin has introduced a bill that would allow patients to have their surgeries videotaped. The purpose is to preserve data that could later shed light if a patient had a poor outcome. The application to med mal is obvious. The National Law Review has the story.
Monday, August 3, 2015
Friday, July 31, 2015
Just in time for fall classes, E. Scott Fruehwald has published A Companion to Torts: How to Think Like a Torts Lawyer. The blurb:
This book takes a new approach to learning torts law: its goal is to teach law students to think like torts lawyers. Thinking like a lawyer means solving a problem to produce a legal solution. This process involves using several types of reasoning in combination, including synthesis, rule-based reasoning, analogical reasoning, distinguishing cases, policy-based reasoning, and creativity. A torts lawyer uses these reasoning methods to solve torts problems. This book will include a variety of torts exercises on the different types of legal reasoning to achieve the goal of teaching students to think like torts lawyers. This book is a supplement to torts casebooks and textbooks. Its main audience is first-year law students who are taking torts. It may be required by a professor, or students may use it as a supplement to the class to improve their torts skills and general legal reasoning skills. This book will also be useful for incoming law students who want to develop their torts and legal reasoning skills before they attend law school. Law school begins quickly on the first day, and it is better to be ahead than behind. Finally, this book will also help law graduates who are preparing for the bar, academic support staff who want to help students improve their legal reasoning skills, and practitioners who want to refine their legal reasoning skills.
Thursday, July 30, 2015
Bob Rabin has posted to SSRN Judge Jack Weinstein and the World of Tort: Institutional and Historical Perspectives. The abstract provides:
In this Article, I offer four representative illustrations of Judge Jack Weinstein’s creative efforts to recast traditional tort concepts in a fashion responsive, by his lights, to accident law claims that pressed against the boundaries of the conventional interpersonal tort law process. In the first of these cases, dealing with a cluster of blasting cap injuries to minors, Judge Weinstein addressed the puzzle of the indeterminate defendant. In the second, war veterans’ claims from Agent Orange exposure in Vietnam, he wrestled with indeterminacy of both defendants and plaintiffs. In the third, the handgun cases, the mass claims dimension so evident in Agent Orange was less salient than the public safety perspective that animated his doctrinal creativity. And finally, in the tobacco punitive damages class action, he returned to a concern for reaching closure in a seemingly intractable public health controversy that served as an underlying theme in Agent Orange, as well. Each of these cases, in its own way, served as a vehicle for Judge Weinstein to realign enterprise liability theory to give priority to risk spreading over risk allocation as an expression of his distinctive commitment to redress of injury victims. In a final section of this Article, I discuss how these judicial strategies mesh with Judge Weinstein’s published efforts in the academic sphere to articulate his vision of the role of tort law.
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 firstname.lastname@example.org 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, email@example.com
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.”