Friday, February 21, 2014

KY: Senate Passes Med Mal Review Panel Bill

The Kentucky Senate, on a 23-13 party-line vote, approved a bill requiring med mal complaints to be taken to a panel of experts to determine whether there was a violation of the standard of care prior to being litigated in court.  The panel's finding would be admissible in the trial unless new substantial evidence were discovered after the report.  Previous iterations of this proposal have failed in the Kentucky House.  Many jurisdictions have similar laws.  The Courier-Journal has the details.

--CJR

February 21, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

George Mason LEC Workshop on Risk, Injury, Liability & Insurance

Have you heard of the Law & Economics Center Workshops for Law Professors?  These four-day workshops are held throughout the year, throughout the country (with an emphasis on great locales to visit, such as the Florida Keys; Steamboat Springs, CO; and Palo Alto, CA), and are designed to foster a better understanding of law & economics. 

I recently attended the LEC Workshop on Risk, Injury, Liability & Insurance held January 30th to February 2nd at Hawks Cay Resort on Duck Key in Florida. Lodging and most meals were covered by the LEC.  Many of the participants were alumni of other LEC workshops and thus knowledgeable about basic law and economics principles, though a handful (including myself) had only engaged peripherally in the topic.   Faculty presenters were Henry Butler, Executive Director of the LEC; Jonathan Klick (Penn), and Eric Helland (Claremont McKenna).   

Broadly speaking, the goal of these workshops is to introduce the participants to law and economics thinking on the particular topic.   Our workshop focused on the economics of uncertainty and risk, and how that translated to legal concepts in insurance and tort law.  Despite the variety in background knowledge levels among participants, the teaching was very accessible and at the same time sophisticated and engaging.   Discussions focused on problems of adverse selection, moral hazard, and external costs.  I definitely gained a better understanding of the economics of risk, and I benefited tremendously from both the assigned readings (voluminous but thoughtfully selected), and instruction. 

The Law & Economics Center deserves its outstanding reputation.  I highly recommend the LEC Workshops to anyone with a passing interest in law and economics. 

- SBS

February 20, 2014 in Conferences | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 18, 2014

Articles from Perspectives on Mass Tort Litigation

Last April at Widener, we hosted a symposium entitled "Perspectives on Mass Tort Litigation."  The first of two issues of articles from the Widener Law Journal is now available.  It's a terrific lineup:

Christopher J. Robinette, Introduction Download Robinette_V23I1

Victor E. Schwartz & Mark A. Behrens, Asbestos Litigation:  The "Endless Search for a Solvent Bystander" Download Behrens&Schwartz_V23I1

Eduardo C. Robreno, The Federal Asbestos Products Liability Multidistrict Litigation (MDL-875):  Black Hole or New Paradigm? Download Robreno_V23I1

Byron G. Stier, The Sale and Settlement of Mass Tort Claims:  Alternative Litigation Finance and a Possible Future of Mass Tort Resolution Download Stier_V23I1

Thurbert Baker, Paying to Play:  Inside the Ethics and Implications of Third-Party Litigation Financing Download Baker_V23I1

Sheila B. Scheuerman, Mass Tort Ethics:  What Can We Learn from the Case Against Stanley Chesley? Download Scheuerman_V23I1

Nicholas P. Vari & Michael J. Ross, In a League of Its Own:  Restoring Pennsylvania Product Liability Law to the Prevailing Modern "Attitude" of Tort Law Download Vari&Ross_V23I1

S. Todd Brown, Bankruptcy Trusts, Transparency, and the Future of Asbestos Compensation Download Brown_V23I1

--CJR

February 18, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 17, 2014

Goldberg on "Inexcusable Wrongs"

John Goldberg (Harvard) has been appointed as the Eli Goldston Professor of Law.  To mark this appointment, Goldberg gave a lecture on "Inexcusable Wrongs" back in November:

 

- SBS

February 17, 2014 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Saturday, February 15, 2014

Weekend Pedagogy Announcement: Assessment at UALR

Assessment Across The Curriculum

Institute for Law Teaching and Learning

Spring Conference 2014

Saturday, April 5, 2014 

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

Conference Content:  Sessions will address topics such as

Formative Assessment in Large Classes

Classroom Assessment Techniques

Using Rubrics for Formative and Summative Assessment

Assessing the Ineffable: Professionalism, Judgment, and Teamwork

Assessment Techniques for Statutory or Transactional Courses

 

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  The conference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.” 

February 15, 2014 in Teaching Torts | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

JOTWELL Torts: Hylton on Sebok & Wendel on Third-Party Financing

Over at JOTWELL Torts, Keith Hylton (Boston University) reviews Tony Sebok (Cardozo) & Brad Wendel's (Cornell) recent Vanderbilt Law Review piece on third-party financing of litigation.

--CJR

February 14, 2014 in Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, February 13, 2014

IA: Governor Proposes Med Mal Cap to Retain Doctors

Iowa Governor Terry Branstad's 2015 state budget includes a section on "Helping Keep Doctors in Iowa."  Among the ideas he proposes is a cap on non-economic medical malpractice awards.  The Des Moines Register responded with an editorial (via The Pop Tort) in opposition that cited a study by the University of Iowa's Carver School of Medicine.  The school surveyed all doctors leaving Iowa in 2007 and 2008.  Of the 220 who responded, only one cited liability exposure as the most important reason for leaving.  As The Pop Tort points out, this finding is consistent with empirical work by Bernard  Black, Charles Silver, and David Hyman.  Caps will not significantly affect physician supply and they have a disparate impact on the most seriously injured.  Iowa should proceed by other means.

--CJR

February 13, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 12, 2014

Rustad on Cyber-Torts

Mike Rustad's Global Internet Law in a Nutshell covers a fair amount of tort-related material you  may find helpful.  The preface, outline, and chapter one are available here.

--CJR

February 12, 2014 in Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

LOL: Smartphone Defense in PI Litigation

A new article in Albany Law Review addresses a growing issue of personal responsibility:  the use of cell phones as a causal factor in accidents.  In Don't Text, Talk and Walk: The Emerging Smartphone Defense in Personal Injury Litigation, Robert Lang explores recent case law where the plaintiff and/or defendant was distracted on a cell phone at the time of an accident. 

Some possible exam material in this one! 

- SBS

February 11, 2014 in Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

2014 Society of Legal Scholars Call for Torts Papers

From James Lee (Birmingham):

I write to invite proposals for papers for the Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.Torts subject section meeting of the 2014 Society of Legal Scholars Annual Conference. This year's conference will take place from Tuesday 9th to Friday 12th September 2014 at the University of Nottingham, with Professor Stephen Bailey as President.

The overall theme of the Conference is ‘Judging in the 21st Century’. I anticipate that it will be likely that Tort papers will be able to engage readily with this topic, whether focusing on decisions of the highest courts in relevant jurisdictions or on work at first instance, for example. Beyond the theme, proposals on any aspect of the law of tort would be very welcome. The Torts section will take place in the second half of the Conference: please note that it has changed from the first half last year, so will run on Thursday 11th and Friday 12th.

All members of the section, whether research students, early career academics or more senior colleagues are invited to offer papers. We are pleased to have had a range of colleagues presenting high quality papers in recent years, notably from many ODGers. If you are interested in presenting a paper, please e-mail me at [email protected] with a title and a brief abstract. I am happy to discuss any potential submissions informally. Please also tell me if you are proposing a paper for another section, so that I can coordinate arrangements with my fellow convenors. The deadline for proposals is 12pm UK time on Friday 7th March 2014.

Proposers will be informed of the outcome as soon as possible after the deadline. All those who have papers accepted will be required to post a final abstract to the conference paperbank by the end of July.

Convenors have been asked to make it clear to all potential speakers and poster presenters that all speakers, presenters and delegates (and convenors) are required to book and to pay to attend the conference. Booking information will be circulated later in the year.

 

- SBS

February 10, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 7, 2014

MO: House Committee Approves $350K Med Mal Cap on Non-economic Damages

On Wednesday, a Missouri House committee approved a $350,000 cap on non-economic damages in med mal cases.  A prior cap was in place in Missouri from 2005 until declared unconstitutional in 2012.  A similar bill to reinstate the cap stalled in the state Senate last year.  The Saint Louis Post-Dispatch has the story.

--CJR

February 7, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, February 6, 2014

King on the Application of the NY Times Standard to Former Public Officials and Candidates

Joe King (Emeritus, Tennessee), in a recent issue of the Vermont Law Review, examines the issue of whether the NY Times standard for defamation should apply to statements about former public officials and former candidates.  Those familiar with King's work know he favors the application of the NY Times standard to all defamation plaintiffs, regardless of the status of the plaintiff or the content of the speech.  Within the confines of current doctrine, however, King recommends a fact-specific approach depending significantly on whether the conduct allegedly occurring was while the plaintiff was still in office or a candidate for office.  King's article is at 38 Vt. L. Rev. 275 (2013).

--CJR 

February 6, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Sinai & Shmueli on Calabresi's and Maimonides's Pluralistic Theories of Tort Law

Yuvai Sinai (Netanya) and Benny Shmueli (Bar-Ilan) have posted to SSRN Calabresi's and Maimonides's Tort Law Theories--A Comparative Analysis and a Preliminary Sketch of a Modern Model of Differential Pluralistic Tort Liability Based on Two Theories The abstract provides:

The main argument of Sinai and Shmueli's article is that the roots of contemporary utilitarian analysis can be traced back to Jewish law sources, and the ancient model can assist us in presenting a preliminary sketch of a modern model of pluralistic tort liability.

Is it possible to create a virtual dialogue between the method of classic scholars of the economic analysis of tort law, such as Guido Calabresi — one of the founders of (tort) law and economics, and the method of Jewish tort law scholars, such as Talmudic and post-Talmudic sages, especially Maimonides? The obvious answer appears to be negative, as the two methods are miles apart in time and space, geographically, and mentally-culturally. However, we point out that it is definitely possible to conduct a dialogue between the two tort theories, and the results are likely to surprise. It is surprising to read ancient sources in the eyes of law and economics. Even though these sources focus especially on private tortfeasors and daily torts as nuisances between neighbors, and not with mass tortfeasors and victims as in the modern industrial world, one can definitely observe deep elements of law and economics in these sources.

Careful analysis of modern tort law and economics helps in the understanding of many Talmudic sources and Maimonides’s tort theory, which many scholars had difficulty explaining because of their deviation from the principle of fault. This analysis explores that Talmudic tort law, in the light of Maimonides writings, follows a pluralist path, which balances between utilitarian and deontological considerations. Maimonides’s theory consists of various objectives and considerations that operate in concert. Different objectives play a dominant role in different types of damage.

Although at times scholars use considerations of efficiency in support of their arguments, most of them do not ascribe any independent value to an economic or utilitarian approach or perspective; from their point of view this is no more than some type of added value. The present article, however, argues that Maimonides was not of this opinion but saw the value of a utilitarian approach as a guiding conceptual pattern and philosophical approach, although he did not refrain from integrating other values as well.

Nevertheless, in addition to pointing out the meeting points between the theories, we also indicate the significant differences between them, which follow from the different and at times conflicting positions of the methods.

Hence, the analysis of the dialogue between the methods produces a deeper understanding of both theories of tort law, each one separately. However, theoretical research often finds its way to practical application. The analysis is expected to enable us to integrate the two methods, if only in part, into a modern model of tort liability. Hence, we will propose an applicative model that contains an outline of a theory of torts inspired by the writings of Maimonides and other Jewish scholars, and contemporary prominent law and economics scholars such as Calabresi and Posner. The assumption is that the model presented by Maimonides is creative, but needs to be adapted to the present; whereas Calabresi's model is compelling. Nonetheless, we think that Calabresi's model is less suitable for classical tort events committed by uninsured individuals who do not manage risks and do not distribute losses, which have not disappeared entirely from the present landscape of torts. On these grounds, it is possible to propose a modern preliminary sketch that can serve as an introduction for a modern model of tort liability. The proposed model will be pluralistic, featuring (what we call) "differential liability," based on Calabresi's doctrines of the cheapest cost avoider and of the best decider, but different from them. This outline highlights a certain split between (a) the need to implement strict liability, and efficiency considerations in some of the tort cases, and (b) to apply liability that is not absolute but rather fault-based, as well as deontological considerations in other tort events. The efficiency considerations apply especially to cases in which insurance is dominant, when it is possible to identify a deep pocket, and when loss is distributed; the deontological considerations apply especially in classical traditional tort events involving an uninsured private tortfeasor, who has limited financial means.

The model also provides complementary interpretation to seemingly contradictory economic approaches of no-fault (Calabresi) and fault-based (Posner) regimes.

Prof. Calabresi's response discusses law, economics, and Justice in our era and according to Maimonides. It discusses empirical differences in times in their implications, and considers the question whether there are differences between the differential liability model, presented by Maimonides and analyzed by Sinai and Shmueli, and the cheapest cost avoider doctrine. It also expands on deontological vs. utilitarian considerations, and presents justice according to law and economics.

The authors are working on expanding the analysis into a book.

--CJR

February 4, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Stevens on "Private Rights and Public Wrongs"

Robert Hedley Stevens (Oxford) has just posted to SSRN, "Private Rights and Public Wrongs."  The abstract provides:

This paper is in two parts. First, the analytic question of how we distinguish crimes from torts will be addressed. Second a normative claim will be made that Mill’s Harm Principle is both too narrow and too broad in determining what kind of conduct can be criminalised.

The paper is part of a forthcoming book, "Unraveling Tort and Crime."

- SBS

February 4, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 3, 2014

February ABA Journal Article on Generic Drug Liability

The February 2014 issue of the ABA  Journal features an article on liability for generic drugs: "Generic drugs leave a bad taste for patients filing tort suits."

- SBS

 

February 3, 2014 in Current Affairs, Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, January 31, 2014

Stevens on Tort and Crime

Robert Stevens (Oxford) has posted to SSRN Private Rights and Public Wrongs.  The abstract provides:

This paper is in two parts. First, the analytic question of how we distinguish crimes from torts will be addressed. Second a normative claim will be made that Mill’s Harm Principle is both too narrow and too broad in determining what kind of conduct can be criminalised.

The final version will appear in a book of essays edited by Matthew Dyson entitled "Unraveling Tort and Crime"

--CJR

January 31, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Graham on Strict Products Liability at 50

Kyle Graham (Santa Clara) has posted to SSRN Strict Products Liability at 50:  Four Histories.  The abstract provides:

This article offers four different perspectives on the strict products-liability "revolution" that climaxed a half-century ago. One of these narratives relates the prevailing assessment of how this innovation coalesced and spread across the states. The three alternative histories introduced by this article both challenge and complement the standard account by viewing the shift toward strict products liability through "populist," "functionalist," and "contingent" lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how certain types of once-common products cases forged a practical argument for strict products liability as a superior alternative to negligence. The third examines why tort law eclipsed warranty as the doctrinal forum for products-liability reform. This article concludes that these non-canonical accounts have been obscured due to patterns and biases that recur across descriptions of doctrinal development in tort law.

--CJR

January 30, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 29, 2014

Behrens & Appel on Medical Monitoring in NLJ

Recently the New York Court of Appeals rejected medical monitoring.  Behrens and Appel approve:

The New York Court of Appeals reached the right conclusion. For over 200 years, one of the fundamental principles of tort law has been that a plaintiff cannot recover without proof of a physical injury. This bright-line rule may seem harsh in some cases, but it is the best filter courts have developed to prevent a flood of claims, provide faster access to courts for those with reliable and serious claims, and ensure that the sick will not have to compete with the nonsick for compensation.

The full op-ed (behind a pay wall) is here.

--CJR

January 29, 2014 in Current Affairs, Damages | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Comment on Con Ed's 9/11 Tort Claims

Over at Jurist, Guest Columnist Alexis Campos, a 2L at Stetson, examines the Second Circuit's recent decision denying ConEd's negligence claim against the builders and designers of the Towers.

- SBS

January 28, 2014 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, January 27, 2014

Negligent Design of FDA Approved Drug

On January 21, 2014, the Pennsylvania Sureme Court finally* decided Lance v. Wyeth.  The court held that drug manufacturers could be liable for negligent design of an FDA approved drug.  I believe this is the first jurisdiction to accept this theory.   Drug & Device Blog has a thorough analysis of the opinion.

- SBS 

 

*finally because the case was argued in 2011 and has been pending before the state supreme court for nearly three years.

January 27, 2014 in Current Affairs, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)