Tuesday, March 29, 2016
Lehman Professor of Law
University of Nevada, Las Vegas
Monday, March 28, 2016
Friday, March 25, 2016
I missed this earlier, but on Tuesday, the federal med mal bill in the House was (at least temporarily) derailed by Republican opposition that the bill disrespected federalism and invaded the province of the states. The Hill has the story.
Thursday, March 24, 2016
From Dean Patty Salkin at Touro:
Touro Law Center
The Jacob D. Fuchsberg Law Center of Touro College invites applications for Visiting Professors to teach one or more of the following courses: Civil Procedure and Torts during the fall 2016 semester and Evidence the spring 2017 semester. Teaching experience in one or more of these three courses is required. The Law Center will entertain expressions of interest for one semester and full-year appointments based on teaching experience and curricular needs.
Touro Law Center is a student-centered school conveniently across the street from the Eastern District of New York courthouse and is located only 45 miles from New York City in Suffolk County, Long Island, New York. We seek candidates with a demonstrated commitment to excellence in teaching and mentoring students, as well as a willingness to engage in the intellectual academic life of the Law Center.
Touro Law is dedicated to the goal of diversity and strongly encourages applications from women and minorities. Applications will be reviewed on a rolling basis. Applications must include a resume and statement of interest and should be mailed to Professor Meredith R. Miller, Chair, Faculty Appointments Committee, at firstname.lastname@example.org<mailto:email@example.com>
Wednesday, March 23, 2016
The ABA has sent a letter to House Judiciary Committee chairman Bob Goodlatte voicing opposition to: (1) a $250,000 cap on noneconomic damages, (2) several liability, and (3) a provision allowing judges to reduce contingent fees for plaintiffs' attorneys. The ABA Journal has the story, including a pdf of the letter.
At Slate, Amy Gajda has a piece on Hulk Hogan's verdict against Gawker, focusing on public disclosure of embarrassing private facts. She goes through the Restatement and discusses precedents regarding balancing privacy with freedom of the press.
Tuesday, March 22, 2016
Monday, March 21, 2016
Ingeborg Puppe & Richard Wright have posted to SSRN Causation in Law: Philosophy, Doctrine and Practice. The abstract provides:
Causation plays an essential role in attributions of legal responsibility. However, considerable confusion has been generated by the use of causal language to refer not merely to causation in its basic (actual/factual/natural) sense, which refers to the operation of the laws of nature, but also to the quite different normative issue of appropriate legal responsibility. To reduce such confusion, we argue that causal language should be used in the law to refer solely to causation in its basic sense.
While it is often said that the law need not and should not concern itself with philosophical analyses of causation, we argue that a failure to take into account rigorous philosophical analysis of causation in its basic sense and to distinguish it from the normative issue of legal responsibility has been a source of major confusion in the law. After summarizing the relevant modern philosophical analyses of causation, we criticize the strong necessity (sine qua non, 'but for') criterion in its counterfactual form and as a supposed exclusive (factual or counterfactual) test of causation, as well as primitivist "we know it when we see it" accounts. We argue, instead, for the need to employ the comprehensive, factual, weak-necessity/strong-sufficiency criterion, which is based on the "covering law" account elaborated by John Stuart Mill and which has been developed in the modern legal literature as the "NESS" (necessary element of a sufficient set) criterion.
Drawing again on the covering law account, we explain the importance of understanding the required standards of persuasion for proving causation (or any other fact) as generally requiring the generation of a warranted belief rather than a mere statistical probability, and we note the confusion and paradoxes that result from some courts' employing the statistical probability interpretation in situations in which there is inherent uncertainty regarding causation, rather than acknowledging the inherent uncertainty and explicitly addressing the normative responsibility issue.
While, pending further discussion, we disagree on some issues, such disagreement should not detract from our agreement on the most fundamental issues, including the NESS (weak necessity/strong sufficiency) covering law account of causation, the rejection of counterfactual possible worlds analysis, the inclusion of omissions and other absences as causes, the importance of focusing the causal analysis on the properties of events and states of affairs rather than events and states of affairs as a whole, and, relatedly, the importance of focusing the causal analysis for purposes of legal responsibility on the causal connection between the wrongful aspects of the defendant's conduct and the relevant legal injury. Whatever disagreements we may have now or in the future pale in comparison to the defects of any alternative analysis of causation, especially the strong necessity (sine qua non, "but for") analysis as an exclusive and/or counterfactual analysis or any account that purports not to rely on causal laws.
Friday, March 18, 2016
Last week, 2 Pennsylvania families won a $4.2M jury award against fracking operators for contaminating their wells. Plaintiffs' fracking verdicts have been rare, with the 2014 Parr case in Texas ($2.9M) leading the way. BNA Bloomberg has the story, with an emphasis on whether this verdict will embolden potential plaintiffs.
Thursday, March 17, 2016
Maya Steinitz has posted to SSRN Back to Basics: Public Adjudication of Corporate Atrocities Torts. The abstract provides:
The editors of this symposium invited me to contribute on the subject of an argument I have recently advanced that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.
Wednesday, March 16, 2016
Tuesday, March 15, 2016
Kay Winkler (Victoria University of Wellington) has posted to SSRN Effects of No-Fault Auto Insurance on Safety Incentives. The abstract provides:
In order to examine how no-fault motor vehicle insurance affects accident rates, insurance regimes in various countries are compared. A random effects model on IRTAD fatality data of 29 countries for the years 2005 to 2010 reveals that some motor vehicle insurance systems increase moral hazard. The incentive to take care seems not to be negatively affected by no-fault rules, but by moral hazard due to limited experience rating. Restrictions on experience rating lower the level of care taken by motorists. A combination of no-fault insurance and flat-rate premiums, as found in New Zealand or the Northern Territory in Australia, has a detrimental effect on the safety of roads. As a result, the distinction of no-fault versus tort-based third-party liability regimes is not very meaningful for analysing the effects of insurance rules on accident rates. Rather, the specific mechanisms of insurance premiums are decisive for road safety.
Monday, March 14, 2016
Yun-chien Chang, Ted Eisenberg, Tsung Hsien Li, and Martin Wells have posted to SSRN Pain and Suffering Damages in Personal Injury Cases: An Empirical Study. The abstract provides:
Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique data set of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff’s medical expenses, level of injury, and the amount requested by the plaintiff. The association with the amount requested by the plaintiff persists when one accounts for the likely quantifiable influences on pain and suffering damages, evidence of a possible anchoring effect. The strong correlation between economic damages and noneconomic damages persists in a large U.S. dataset of judge and jury trials, in which the noneconomic fraction of total damages is no greater than the pain and suffering fraction of total damages in Taiwan. Judges and juries consistently produce coherent patterns of noneconomic damages.
Thursday, March 10, 2016
Wednesday, March 9, 2016
Tuesday, March 8, 2016
Monday, March 7, 2016
The Indiana House passed, 90-5, an increase in the med mal cap from $1.25M to $1.8M by 2019. Unlike the Judiciary Committee's proposal, there are no further increases. Indiana's is one of the few caps that is total (not solely on noneconomic damages).
Friday, March 4, 2016
PA: Grand Jury Report on Sexual Abuse of Children in the Altoona-Johnstown Diocese; Statute of Limitations Debate
On Tuesday, a grand jury report was issued regarding the sexual molestation of hundreds of children over a 40-year period in the Altoona-Johnstown Diocese. The allegations are disturbing to read. The report recommended abolishing the criminal statute of limitations for sex crimes against minors and opening a window to allow sexual abuse victims to bring civil claims. Several bills have been introduced in the legislature. Parallel bills by Rep. Mark Rozzi, himself a sex abuse survivor, and Sen. Rob Teplitz would give victims until the age of 50 to file suit (up from the current age of 30) and would open a brief window for those whose claims would be time-barred by the 50-year limit. Sam Marshall, the President and CEO of the Insurance Federation of Pennsylvania opposes the bills:
"We are allowed to reserve only for claims that are possible. Once a statute of limitations has passed, we can't hold or reserve money for that because claims are no longer possible," Marshall said. He questioned whether the grand jury in making its recommendations gave any consideration of the insurance regulation aspect of it.
"I realize that's not the driving concern in any of this but it is from an insurance perspective," he said. "It's a question of how can you be liable for something they claim for which by law you weren't allowed to reserve money for. That's the challenge here."
The debate reminds me of one of Jeffrey O'Connell's favorite statements about the difficulty of mixing morality and mathematics, something that happens constantly with tort law and insurance. Still the moral aspect of tort is very strong in this instance, not muted as it is in so many contexts. PennLive has the story. The Patriot News, in an editorial, supports the report's statute of limitations recommendations.