Tuesday, July 22, 2014
Riaz Tejani (University of Illinois Springfield-Department of Legal Studies) has posted to SSRN National Geographics: Toward a 'Federalism Function' of American Tort Law. The abstract provides:
This Article defends current contours in the federalization of tort law wherein norms have been federalized in discrete substantive areas although remaining shielded from federal incursion in others. As suggested here, it becomes the task of judges to develop and refine these contours in the same fashion that they serve public law needs elsewhere through adjudication. In support of this claim, this Article develops what I term the “federalism function” — the capacity for torts disputes to implicate the balance of federal and state authority and thereby reinforce or recalibrate that balance in large or small measure. Indeed, as problems of scale cut increasingly across political persuasion and economic worldview, the balance of central and local power through federalism becomes a key implication of many torts disputes today. This discussion is overdue in light of wider debates about federal preemption and state sovereignty. Immigration reform and marijuana regulation are but two hot-button issues that illustrate the contemporary struggle over federalism. More than tort law, these areas implicate what many have come to describe as “global governance” — the effort to assert uniform norms across ever-wider geographic and political distances. Because immigration and marijuana policies necessarily affect the flow of people and things across the international border, they more understandably implicate and undermine the idea of states’ rights. Tort law, meanwhile, still deals in cognizable, individual harms to person and property and has been the domain of state authority for centuries. Nevertheless, tortious conduct increasingly flows across state boundaries via mass-market actors and increased communication technologies. Adjudication in tort disputes increasingly takes the form of “public” or “regulatory” law. It is then, in light of federalism’s widespread influence in policy discussions across the spectrum, not surprising to find the integrity of state common law up for reconsideration in many tort cases. This reconsideration forms the federalism function.
Monday, July 21, 2014
Like many, we were stunned to learn of the death of Dan Markel over the weekend. Dan, a professor at Florida State College of Law, was a co-founder of PrawfsBlawg and a prolific scholar in the area of punishment and retributive justice. The local ABC News station reports that Dan was shot at his home on Friday and passed away the following day at an area hospital.
PrawfsBlawg has an on-line memorial for their colleague and friend here.
Paul Caron has collected the news reports on this tragedy here.
- Sheila and Chris
Friday, July 18, 2014
About a year ago, we reported that Ralph Nader had purchased an old bank in his hometown of Winfield, Connecticut for his "American Museum of Tort Law."
The Associated Press now reports that construction crews have begun inside demolition work on the building. Nader hopes that the museum will open in Fall 2015.
Thursday, July 17, 2014
In Bostic v. Georgia Pacific Corp., the Texas Supreme Court rejected the "any exposure" or "some exposure" theory of causation, and held that a "substantial factor test" applies to causation in asbestos cases.
Debra J. LaFetra at Pacific Legal Foundation has a full write up of the decision.
Wednesday, July 16, 2014
David Hyman (Illinois) and Charles Silver (Texas) have posted to SSRN Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation. The abstract provides:
It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed partners and practice groups. Small and mid-sized firms and solo practitioners are facing similar challenges. Some of these developments are attributable to the financial crisis and the Great Recession. Others are the result of structural and technological changes affecting the market for legal services — and those changes have revealed new weaknesses in the business forms through which lawyers have traditionally delivered legal services. To most inhabitants of Biglaw, these changes and challenges are unprecedented, but to lawyers who do medical malpractice and personal injury litigation, market turbulence of this sort is old hat. Over the past three decades, there have been dramatic changes in the market (and demand) for such services. Some of these changes are clearly attributable to legislative action, including caps on noneconomic or total damages, and procedural hurdles such as screening panels, certification requirements, and interlocutory appeals of expert witness reports. But, even in states that have not taken such steps, there has been a long-term secular decline in the volume of medical malpractice litigation. Apart from the highly visible public brawl over the merits of damage caps, these developments have attracted little attention. However, the dynamics are clear to those who wish to pay attention to them. In this Article, we explore these trends, highlight the ways in which they have interacted with one another, and then briefly discuss why it is not helpful to analyze these developments in terms of their impact on “access to justice.”
Tuesday, July 15, 2014
Monday, July 14, 2014
James Rustad, son of TortsProf Mike Rustad, is a singer/songwriter who focuses on social commentary. Given his father's interest in torts, it's no surprise that some of his songs have a torts theme. Take a listen to his "The Great Inevitably Exploding Ford Pinto." James has his own YouTube channel here.
Friday, July 11, 2014
TortsProfs' own Chris Robinette is quoted in this Washington Post article about the verdict against the L.A. Dodgers stemming from the 2011 beating of a Giants fan in the stadium parking lot. The victim sued the Dodgers for failure to provide adequate security. On Wednesday, a jury found for the plaintiff, and the Dodgers are liable for nearly $14 million of the verdict.
Erik Encarnacion has posted "Corrective Justice as Making Amends" to SSRN. The abstract provides:
Many tort theorists claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, several tort theorists have criticized traditional corrective justice theories for, among other things, failing to account for key structural features of tort practice. This article outlines and defends an alternative conception of corrective justice called the making amends conception. By understanding corrective justice as just another name for the familiar moral phenomenon of making amends, and by viewing tort law as a formalization of that informal phenomenon, we can arrive at a conception of corrective justice that can resist the criticisms while providing an independently attractive picture of tort law.
Thursday, July 10, 2014
So understandably, one bride asked theoperators of the Doubletree Hotel & Suites in historic Charleston to assure her that her courtyard ceremony "would not be disrupted by hotel guests not in attendance."* Not as understandably, the hotel allegedly agreed to this clause. Now, the wedding venue - the hotel's courtyard area - is overlooked by guestrooms, and on the big day, one hotel guest decided to bare all in the window of his room while the wedding ceremony below was in progress. The distraught bride has now sued the hotel for what sounds like an intentional infliction of emotional distress claim, and seeks actual and punitive damages.
Courthouse News has more.
(Photo credit: Doubletree Hotel & Suites. Presumably, this advertising photo is not of the wedding in question...)
*Presumably, there would be no lawsuit if the alleged nudist had been a guest of the wedding itself.
Wednesday, July 9, 2014
A Yankees fan who fell asleep at the April 13th Yankees-Red Sox game is now suing the Yankees, Major League Baseball and ESPN for defamation, following the live airing of the napping fan on ESPN and later posting of the video on mlb.com. The plaintiff is seeking $10 million in damages after the "unending verbal crusade."
Smoking Gun has a copy of the complaint.
PS. The Yankees won, 3-2.
Tuesday, July 8, 2014
Like many jurisdictions, Pennsylvania allows common law bad faith claims to be assigned from the insured/defendant in the tort case to the plaintiff in the tort case. Also like many jurisdictions, Pennsylvania has a statutory component to its bad faith law (42 Pa. C.S.A. 8371, enacted in 1990). The Third Circuit has certified a question to the Supreme Court of Pennsylvania asking it to clarify whether the statutory component, like the common law cause of action, is assignable. Judge John Jones, of the Middle District of Pennsylvania, held statutory bad faith claims are assignable, based on lower state court and prior Third Circuit cases. The issue is whether the tort basis of the statutory claim distinguishes it from the contract basis of the common law claim for purposes of assignability. The case is Allstate v. Wolfe (Docket No. 39 MAP 2014) and we should receive an answer in the coming months.
Monday, July 7, 2014
Judge James Turk, who presided over federal court in Roanoke, Virginia for over 40 years, died Sunday at the age of 91. Turk is best known among torts enthusiasts as the presiding judge in the 1981 trial of Falwell v. Flynt. I practiced in front of him and found him a fair judge and a very warm and decent human being. The Roanoke Times has a notice.
Alberto Bernabe (The John Marshall Law School & Torts Blog) has posted to SSRN Civil Liability for Injuries Caused by Dogs after Tracey v. Solesky: New Path to the Future or Back to the Past?. The abstract provides:
Two years ago, the Maryland Court of Appeals issued an opinion in a case called Tracey v. Solesky in which it modified the common law of the state related to strict liability in cases involving injuries caused by dogs. Although Solesky was neither a big departure from the applicable law at the time nor an adoption of the alternative, and more prevalent, view in other jurisdictions, the Maryland legislature eventually abrogated its holding entirely. As a result, the current applicable doctrine is a collage of different approaches and it is difficult to see how it protects victims of dog attacks more than they were protected before Solesky. This article reviews the tort law doctrines that operate to manage the costs of injuries caused by dogs and discusses the consequences of the approval of the new statute in Maryland. It concludes that instead of reverting back to the common law predating Solesky, a more careful balancing of the interests involved should have resulted in either adopting the prevalent view in the majority of jurisdictions or in an understanding of how Solesky actually advanced a better public policy than the common law it modified.
Thursday, July 3, 2014
Greg Keating (USC) has posted two pieces to SSRN. First, When Is Emotional Distress Harm?. The abstract provides:
In 1968, the California Supreme Court decided Dillon v. Legg, to this day the most famous American negligent infliction of emotional distress (NIED) case. In a nutshell, Dillon ruled that, henceforth, the scope of liability for negligent infliction of emotional harm would be governed by the same principle of reasonable foreseeability which governs the scope of liability for the infliction of physical harm. In retrospect, Dillon brought to a close an important period of American negligence law. Early in the twentieth century, in his celebrated MacPherson and Palsgraf decisions, Benjamin Cardozo made reasonable foreseeability the cornerstone of both duty and scope of liability (proximate cause). In extending the principle of reasonable foreseeability to cover emotional distress as well as physical harm, Dillon was fulfilling the premise and promise of Cardozo’s great decisions. Yet within twenty years, it became clear to the very same court that, although reasonable foreseeability sets reasonable boundaries to liability for physical harm, it licenses too much liability for emotional distress. In an ironic development, the principle of reasonable foreseeability embraced by Dillon v. Legg was recast as an arbitrary rule in Thing v. LaChusa. Ever since, courts and commentators have struggled to articulate principled boundaries for liability for NIED.
For the most part, courts have rested on the unsatisfying principle that liability must have some limit and pretty much any limit will do. The conventional wisdom is that this kind of arbitrary limitation is unavoidable. This chapter, prepared for the Obligations VII conference on Challenging Orthodoxy in Private Law, argues that progress may be made toward articulating principled boundaries for emotional injury by pursuing two paths. The first is taxonomical. NIED is about scope of liability; it is properly understood as a matter of proximate cause, not duty. The duty breached in Dillon v. Legg, for example, was the long-established duty to exercise reasonable care when driving an automobile. The question before the court was whether liability for breach of that duty extended to persons who foreseeably suffered severe emotional distress. What is true of this particular case is true generally: NIED does not ground new duties of care, it extends liability for breaches of preexisting, independently recognized, duties of care. This itself places boundaries on liability. The second path toward articulating principled boundaries on NIED liability is to inquire into the concept of harm and ask just when emotional distress counts as harm. Liability for negligence is, at its core, liability for physical harm and physical harm has long been understood in the law of negligence to mean physical impairment. Physical impairment, for its part, is impairment of normal physical capacities.
There is progress to be made in discrimination among instances of emotional distress by extending this idea of impairment to emotional injuries. Some emotional harms are impairments; to suffer them is to be left with impaired psychological capacities. Childhood sexual abuse, for example, characteristically leaves its victims with impaired capacities for trust. The death of one’s small child — the harm at issue in Dillon — is a harder case, but it seems intuitively correct to say that the death of a child often impairs the life of the parent in a profound way. Parents who witness the deaths of their children are often “never the same.” Part of the parent dies with the child, because the child’s life represents such a deep and irreplaceable investment of the parent’s agency. By asking when and why emotional suffering is not transient distress but enduring impairment it may be possible to make progress in limiting NIED liability in a principled, non-arbitrary manner.
Second, Strict Liability Wrongs; the abstract provides:
Strict liability is an orphan among moral theorists of torts. They wish either to expunge it from the law of torts entirely, or to assimilate it to negligence liability. This chapter argues that strict liability torts are genuine wrongs. They involve violations of rights, and they delineate two distinctive domains of wrongful conduct. One domain — the territory of “harm-based” strict liabilities — involves the distinctive wrong of harming-without-repairing. The other domain — the territory of “sovereignty torts” — involves the distinctive wrong of violating core autonomy rights which confer on persons fundamental powers of control over their selves and their property.
Tuesday, July 1, 2014
The Tulane Law Review recently hosted "The Evolution of Asbestos Litigation: Enduring Issues and the Administration of Trusts." The articles are now available:
Edward F. Sherman, The Evolution of Asbestos Litigation, 88 Tul. L. Rev. 1021 (2014).
Georgene Vairo, Lessons Learned By the Reporter: Is Disaggregation the Answer to the Asbestos Mess?, 88 Tul. L. Rev. 1039 (2014).
Lester Brickman, Fraud and Abuse in Mesothelioma Litigation, 88 Tul. L. Rev. 1071 (2014).
Joseph Sanders, The “Every Exposure” Cases and the Beginning of the Asbestos Endgame, 88 Tul. L. Rev. 1153 (2014).
Peggy L. Ableman, A Case Study From a Judicial Perspective: How Fairness and Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims, 88 Tul. L. Rev. 1185 (2014).
Anita Bernstein, Gender in Asbestos Law: Cui Bono? Cui Pacat?, 88 Tul. L. Rev. 11211 (2014).
The second set of articles from the April 2013 symposium at Widener, Perspectives on Mass Tort Litigation, are now available.
Christopher J. Robinette, Introduction, Part II Download Robinette Intro 2 - Ready for Pub. 6.21.14
Aaron Twerski & Lior Sapir, Sufficiency of the Evidence Does Not Meet the Daubert Standards: A Critique of the Green-Sanders Proposal Download Twerski - Ready for Pub. 6.17.14
Michael D. Green & Joseph Sanders, In Defense of Sufficiency: A Reply to Professor Twerski and Mr. Sapir Download Green - Ready for Pub. 6.18.14
William P. Shelley, Jacob C. Cohn & Joseph A. Arnold, Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update Download Shelley - Ready for Pub. 6.19.2014
Bruce Mattock, Andrew Sackett & Jason Shipp, Clearing Up the False Premises Underlying the Push for Asbestos Bankruptcy Trust "Transparency" Download Mattock - Ready for Pub. 6.18.14
Scott B. Cooper & Lara Antonuk, The Royal Nonesuch: How Tort Reformers Are Pulling One Over on Pennsylvania Download Cooper & Antonuk - Ready for Pub. 6.18.14
Congratulations to the Widener Law Journal for two great issues.
Monday, June 30, 2014
Mark Geistfeld (NYU) has posted to SSRN The Tort Entitlement to Physical Security as the Distributive Basis for Environmental, Health, and Safety Regulations. The abstract provides:
In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance. For example, different specifications of the entitlement can produce substantially different measures of cost that fundamentally alter the type of safety regulations required by cost-benefit analysis, even for ordinary cases involving low risks. Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement to physical security in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation, thereby enabling federal regulatory agencies to conduct cost-benefit analyses that account for matters of distributive equity as required by Executive Order. When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system.
Friday, June 27, 2014
On Tuesday, the Supreme Court of Missouri issued an opinion in Coomer, the case of the fan injured by a flying hot dog. The court ruled that getting hit with a hot dog is not an inherent risk of baseball and the trial judge should not have allowed an assumption of risk instruction. The opinion is here. Alberto Bernabe, who has followed the case, has comments here. Michael McCann wrote a guest post for TortsProf in 2010 that foreshadowed the holding.