Wednesday, November 27, 2013
Symeon Symeonides (Willamette) has posted to SSRN Issue-by-Issue Analysis and Depecage in Choice of Law: Cause and Effect. The abstract provides:
This Article discusses two interrelated features of modern American choice-of-law approaches: (1) issue-by-issue analysis, and (2) dépeçage.
Issue-by-issue analysis stands for the proposition that, in choosing the law to be applied to a multistate case, a court should focus on the particular issue(s) for which the laws of the involved states would produce a different outcome, rather than on the case as a whole. Logic suggests and experience confirms that this mode of analysis is more likely to produce individualized, nuanced, and thus rational resolutions of conflicts problems than the traditional mode of wholesale choices.
Dépeçage is the potential and occasional result of issue-by-issue analysis. It occurs when the court applies the laws of different states to different issues in the same cause of action. Although this phenomenon appears anomalous to the uninitiated, in reality it is not as problematic as it appears. For example, although the majority of American courts routinely use issue-by-issue analysis, this use produces surprisingly few instances of actual dépeçage, and, in most of those cases, dépeçage is innocuous. In the remaining few cases, dépeçage can be problematic, but courts employing modern approaches have all the flexibility to avoid it -- and they do.
The Article concludes that the low -- and easily avoidable -- risk of an occasionally problematic dépeçage is not a good reason to eschew issue-by-issue analysis in light of the clear and considerable advantages of this analysis in producing apt choice-of-law solutions.
Friday, November 22, 2013
Wednesday, November 20, 2013
Tuesday, November 19, 2013
Phil Goldberg (Shook Hardy) has published “Courts and Legislatures Have Kept the Proper Leash on Pet Injury Lawsuits: Why Rejecting Emotion-Based Damages Promotes the Rule of Law, Modern Value, and Animal Welfare.”
The article focuses mostly on cases involving negligence. The article’s first part explains what owners can get under current laws, namely economic compensation for their pet as well as any reasonable and necessary medical or other expenses incurred as a result of the incident. If the economic compensation for the pet cannot be derived through the pet’s market value, there are alternative methods for calculating damages to assure proper compensation.
The remainder of the article captures the debate over whether the compensation can include emotion-based damages, such as pain and suffering, emotional distress and loss of companionship. Courts and legislatures have broadly rejected these damages, and this article explains why, delving into the legal theory and social values debated when this issue arises.
In short, courts have held that the tort system does not compensate for relational attachments, including with pets. Courts have pointed out that this is the same reason why, for example, emotion-based damages are not compensable for harm to close personal relations, such as a cousin, fiancée, or human best friend, or for cherished personal property.
The article concludes that keeping emotion-based damages out of pet litigation is, ultimately, what is best for pets themselves. Adding new, uncertain liability to pet litigation would cause the price of pet welfare services and products prices to rise. If owners cannot afford to pay these higher costs, then many pets will not get the care they need.
Monday, November 18, 2013
As I mentioned, last week, the U.S. House was taking up the Lawsuit Abuse Reduction Act. The ABA Journal reports that the bill passed the House on Thursday. The bill reinstates mandatory sanctions and eliminates the 21-day safe harbor for frivolous claims under Rule 11 of the Federal Rules of Civil Procedure.
Thanks to Lisa Smith-Butler for the alert.
From John Day comes "Tort Reform the Song". As Day explains,
"Tort Reform - The Song" was authored as part of the American College of Trial Lawyers Sixth Circuit Conference held in April 2013 in Nashville. The Conference brought together Michigan, Ohio, Kentucky and Tennessee Fellows and their spouses.
It was appropriate to draw upon Nashville's incredible music history and talent as part of this program, and thus three professional songwriters, led by Ryder Lee, a law student at the Belmont University School of Law and founder and former member of The Lost Trailers helped us write a song. Ryder came into the program with the music and a strong start on the lyrics. The attendees, now co-authors of this work, contributed during the program. Ryder and I finished the work in a writer's room at Universal in Nashville and - no kidding - while sitting on the tailgate of Ryder's truck in the parking lot below Taylor Swift's condominium.
Friday, November 15, 2013
On Monday, Sheila reported that two tort reform bills, the Furthering Asbestos Claim Transparency Act (FACT) and the Lawsuit Abuse Reduction Act (LARA) might receive votes in the U.S. House of Representatives this week. FACT passed on Wednesday with a 221-199 vote and LARA passed yesterday 228-195.
Thursday, November 14, 2013
The Dayton Daily News has a story on malpractice at the Department of Veterans Affairs. Payment for VA med mal claims (paid from a federal treasury fund set aside for federal claims, not the VA budget) totaled $845M over 10 years (on a total of 4,426 claims). The peak year was 2012 with $93.3M in payouts. The article notes that VA health care providers are immune from lawsuits and details instances of bonuses given to providers who had made medical errors or administrators despite poor records at their facilities. The article also quotes attorneys arguing the early disclosure program and limits on attorneys' fees (20% on settlements and 25% on awards) reduce the amount of claims brought against the VA. On the other hand, when asked whether VA doctors were worse than other doctors, Dr. Anupam Jena, assistant professor at Harvard, said simply, "no." The article includes poignant stories by individual victims of malpractice.
Wednesday, November 13, 2013
A colleague asked me about this last week; I confess that I had not considered it. Now Kyle Colonna has posted his Note to SSRN. Entitled Autonomous Cars and Tort Liability, the abstract provides:
With the passing of time, cars are becoming more autonomous and independent of human intervention. However, with this shift in control from humans to technology, there also comes a shift in liability. While autonomous cars will eliminate many accidents caused by human error, many others will result due to technological malfunctions. In order to ensure that autonomous cars enter the marketplace in a timely fashion, the liability of autonomous car manufacturers requires mitigation. This Note examines the legal issues surrounding autonomous cars, including tort liability, and proposes a means by which the liability issues surrounding autonomous cars may be fashioned in order to effectuate a timely implementation of autonomous cars in the marketplace.
Monday, November 11, 2013
Two tort reform bills have been placed on the House calendar for this week: the Lawsuit Abuse Reduction Act and the Furthering Asbestos Claim Transparency Act. According to Govtrack.us, both bills are scheduled to be heard by the House Committee on Rules on November 12th.
Workers' Compensation Blog has more.
Friday, November 8, 2013
Nora Freeman Engstrom (Stanford) has posted to SSRN 3-D Printing and Products Liability: Identifying the Obstacles. The abstract provides:
Though just in its infancy, 3-D printing seems poised to transform the goods we buy, the products we use, and the world we inhabit. A question frequently raised about 3-D printing, though, is how product liability law will apply to 3-D-printed goods. Tackling that important and timely question, this Essay applies contemporary product liability law to defective products from home 3-D printers. The analysis reveals that if home 3-D printing really does take off, PL litigation as we know it may well, in large measure, dry up. And if it doesn’t, the technology threatens to unsettle the theoretical justification for product liability law’s development.
Wednesday, November 6, 2013
Edward Elgar Publishing announces the publication, later this month, of Research Handbook on the Economics of Torts, edited by Jennifer Arlen (NYU). From the blurb:Description
‘An indispensable resource for anyone interested in economic analysis of tort law, and tort law period. Professor Arlen has assembled an academic all-star team, and its members have prepared up-to-date, high quality, and accessible treatments of centrally important topics ranging from causation and damages to vicarious liability and insurance to tort reform and tort alternatives. With respect to the analysis of tort law through the lenses of empirical and microeconomic analysis, this is now the go-to volume.’
– John Goldberg, Harvard Law School, US
Contributors include: J. Arlen, L. Babcock, T. Baker, R. Cooter, A. Daughety, D. DePianto, S.S. Diamond, T. Eisenberg, R. Epstein, J. Furgeson, M. Geistfeld, M. Grady, M. Heise, E. Helland, D. Hensler, K.N. Hylton, L. Kornhauser, R. Kraakman, G. Miller, J. Reinganum, J. Salerno, S.A. Seabury, C. Sharkey, P. Siegelman, E. Talley, M. Trebilcock, T. Ulen, P.-E. Veel, W.K. Viscusi, A.L. Wickelgren, K. Zeiler.
Nov 2013 680 pp Hardback 978 1 84844 118 7 £180.00 / $285.00
35% discount price £117.00 / $185.00
To order online (N&S America)
Go to www.e-elgar.com once the book is in your shopping basket, enter LPBN35 in the special discount code box after you have entered your delivery details.
To order online (Europe & ROW)
Go to www.e-elgar.co.uk once the book is in your shopping basket, enter LPBN35 in the special discount code box after you have entered your delivery details.
Offer ends: 31st December 2013
Tuesday, November 5, 2013
The Faculty Lounge reports that upon Dean Solomon's move to the Provost's office, TortsProf John Oberdiek will become acting Dean at Rutgers-Camden next July 1, 2014. Oberdiek teaches and writes in torts and tort theory.
Friday, November 1, 2013
John Goldberg & Ben Zipursky have posted to SSRN The Fraud-on-the-Market Tort. The abstract provides:
Fraud on the market is at the core of contemporary securities law, permitting 10b-5 class actions to proceed without direct proof of investor reliance on a misrepresentation. Yet the ambiguities of this idea have fractured the Supreme Court from its initial recognition of the doctrine in Basic v. Levinson to its recent decision in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds. Amidst divergent views of the coherence and advisability of liability for fraud on the market a fundamental question lurks: is a suit for damages that invokes the fraud-on-the-market theory a claim for common law deceit, such that liability is properly limited by requirements such as scienter and loss causation, or is it an indirect regulatory enforcement action that should be unconstrained by these requirements so that liability can better serve its deterrent and compensatory purposes?
Rejecting both of these options, we argue for a third way. Fraud-on-the-market claims are not private attorney general actions; they are genuine tort claims through which victims seek redress for having been wronged. Yet the wrong differs fundamentally in substance from the wrong of deceit. Building on a careful analysis of Dura Pharmaceuticals, Inc. v. Broudo, Basic v. Levinson, and common law, we articulate the unique character of the fraud-on-the-market tort. Rooted not in deceit but instead in the Congressionally recognized right of investors to trust in the integrity of securities markets, it does not protect investors from being deceived, but rather protects them against economic loss caused by intentional distortions of market prices. This simultaneously explains why fraud-on-the-market plaintiffs are properly freed from having to prove reliance and why the Supreme Court was perhaps justified in imposing restrictions on liability that are foreign to the common law.
Thursday, October 31, 2013
Courtesy of Becker's Hospital Review, the findings include:
- For events occurring in 2014, the projected loss rate for hospital professional liability will be an estimated $2,940 per bed. The frequency of claims is projected to be 1.67 percent per occupied bed equivalent and the severity of each claim is projected to be $176,000.
- For events occurring in 2014, the projected loss rate for physician professional liability is projected to be $6,030 for each class 1 physician, with a frequency of 2.97 percent per class 1 physician. The severity of these claims is expected to be $203,000.
- The projected loss rate for hospital general liability is expected to be $119 per OBE. The average general liability claim is expected to be $36,000.
- Obstetrics, the most costly specialty in terms of malpractice claims in 2013, is expected to again be one of the costliest in 2014. Projected loss rate for obstetrics claims in 2014 is expected to be $171 per birth.
- Projected loss rates vary greatly across the country. Florida ($7,440) and Pennsylvania ($4,720) have projected loss rates significantly higher than states like Indiana ($800) and Minnesota ($810).
Wednesday, October 30, 2013
Tony Sebok (Cardozo) and Brad Wendel (Cornell) have posted to SSRN Duty in the Litigation Investment Agreement: The Choice between Tort and Contract When the Deal Breaks Down. The abstract provides:
Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.
The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should inform the formation and enforcement of the litigation investment contract. The risks are: (1) Information Asymmetry; (2) Shirking; (3) Control; and (4) Opportunities Forgone. As we explain in the article, it is not obvious that careful contract drafting can do anything other than minimize these risks. Since their elimination is impossible (or at least prohibitively costly), the question the article turns to is how should disputes over the realization of any of these risks be handled by the courts?
The article canvasses a range of legal responses, including tort, contract, and regulation, and focuses on the tort and contract regimes as resources for legal doctrine to provide guidance to lawyers and judges. We review the history of tort liability in pure economic loss cases involving the performance of contracts, and focus in first and third party insurance “bad faith” doctrines as the most promising analog. We conclude that, despite some superficial similarities, the relationship between a claim owner and an investor in a legal claim are sufficiently different from that of an insurer and an insured such that tort law should not be followed in the case of litigation finance disputes.
Finally, we review the possibility of using contract law to resolve disputes between funders and claim owners. The key challenge to anyone who defends the adequacy of contract law is to properly define the nature of the contract, since different kinds of contracts yield different obligations and different remedies. We argue that litigation investment contracts are ‘relational contracts’ since they possess certain features that are a hallmark of this legal family, such as a concern to allow for the renegotiation of terms in order preserve the contract as an ongoing relationship. With this in mind, we conclude by drawing upon the relational contract literature to sketch out broad contract law principles to apply to disputes over the performance of litigation investment contracts and the remedies that courts should order in the event that a contract breach is found.
Tuesday, October 29, 2013
Yahoo Sports reports that Penn State has reached a settlement with twenty-six victims of the Sandusky sex abuse scandal:
Penn State announced Monday that it had settled a civil suit involving 26 victims from the Jerry Sandusky sex abuse scandal and will pay out nearly $60 million.....
"The aggregate dollar amount paid by the University for the 26 settled claims is $59.7 million and will be reflected in the University’s audited financial statements for the year ended June 30, 2013."
According to the university, it believes that its various liability insurance policies cover its settlements and defense of claims and those expenses not covered by insurance will be funded from interest revenues from the university to its own self-supporting units.
Monday, October 28, 2013
Modern tort theory begins with Holmes, who was eager to recast the old law of ‘trespass’ on suitably modern terms. Back when people were superstitious and quick to blame, tort could be understood as law that provides an alternative to vengeance. In our disenchanted world, however, tort law must be seen as a mechanism by which the state pursues a public policy, such as compensation of injury victims.
In Tort as a Substitute for Revenge, Professor Scott Hershovitz invites us to ask whether Holmes got us off on the wrong foot. Indeed, he argues that tort law has an important connection to revenge and that, as such, it is to be credited with delivering a kind of justice.
Friday, October 25, 2013
Thursday, October 24, 2013
Yesterday Gov. Tom Corbett signed legislation excluding from evidence apologies made by physicians and nursing home staff and administrators in med mal cases. Statements accompanying the apology remain admissible. The bill passed the state House 202-0 and the Senate 50-0. PennLive has the story.