TortsProf Blog

Editor: Christopher J. Robinette
Widener Univ. School of Law

A Member of the Law Professor Blogs Network

Wednesday, December 3, 2014

Yale/Stanford/Harvard Junior Faculty Forum

If you  have 7 or fewer years of teaching experience, you are eligible for the Yale/Stanford/Harvard Junior Faculty Forum, this year including Torts as a subject matter.  The deadline is March 1, 2015.  Details are here:  Download JFF final call for submissions

December 3, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2014

JOTWELL Torts: Goldberg on Chamallas on Vicarious Liability

At JOTWELL, John Goldberg has posted a review of Martha Chamallas's Monsanto Lecture, Vicarious Liability in Torts:  The Sex Exception.

December 2, 2014 in Scholarship, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

Veterans Affairs & Med Mal

As part of the overhaul at the VA, a website is being created so veterans can check if their doctors have ever been sued for malpractice and found at fault.  CBS Los Angeles has the story, including data that is not surprising given this story from last year.

December 1, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

CA: Supreme Court to Review Constitutionality of Med Mal Damages Cap

Less than a month after voters rejected raising the $250,000 med mal damage cap in California, the state's high court is going to review whether the cap is constitutional.  Insurancenewsnet.com has the story.

November 27, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Auto Insurance in Ontario

Automobile insurance is more expensive in Ontario than anywhere else in Canada.  Last week, in an attempt to reduce costs, the Ontario Government passed "Bill 15," which will:

  • Reduce extraordinarily expensive vehicle storage costs that some facilities and towing companies charge when they know drivers have no other option;
  • Create a new and more efficient system to expedite the hearing of disputes, thereby preventing backlogs and helping reach decisions in a timely manner;
  • Align pre-judgment interest rates on pecuniary and non-pecuniary damages (pain and suffering) to today's market rates.

Apparently more will need to be done to reduce claim costs, which consume 65 cents of every dollar paid in premiums.  CNW has the story.

November 26, 2014 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Erichson on the NFL Concussion Settlement

Over at Mass Tort Profs, Howie Erichson (Fordham) analyzes the NFL concussion settlement.  He's not in favor:

We have grown so accustomed to "settlement class actions" that we have lost sight of what is strange and troubling about them. Class actions serve an essential function in our legal system by empowering claimants in mass disputes, and I reject the knee-jerk criticisms of class actions that I  hear too often. But when the class action tool is exploited by defendants to buy peace on the cheap, and when class members are harmed by the alignment of interests between defendants and class counsel, I feel the need to speak up.

Read the full piece here.

November 25, 2014 in Sports, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Dagan & Dorfman on the Justice of Private Law

Hanoch Dagan & Avi Dorfman (Tel Aviv) have posted to SSRN The Justice of Private Law.  The abstract provides:

Private law is traditionally conceptualized around a commitment to formal freedom and equality, whereas critics of the public/private distinction (including lawyer-economists) construe it as merely one form of regulation.  We criticize the traditional position as conceptually misguided and normatively disappointing.  But we also reject the conventional criticism, which confuses a justified rejection of private law libertarianism with a wholesale dismissal of the idea of a private law, thus threatening to deny private law’s inherent value.

This Article seeks to break the impasse between these two positions by offering an innovative account of the justice that should, and to some extent already does, underlie the law of interpersonal interactions among private individuals in a liberal state.  Rather than succumbing to the unappealing adherence to formal freedom and equality, private law should openly embrace the liberal commitments to self-determination and substantive equality.  A liberal private law — our private law — establishes frameworks of respectful interaction conducive to self-determining individuals, which are indispensable for a society where individuals recognize each other as genuinely free and equal agents.

November 24, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

PA: Court Declines to Adopt R3: Products Liability

On Wednesday, the Pennsylvania Supreme Court, 4-2, decided to continue using the Restatement (Second) of Torts for products liability cases.  Some highlights:

Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.

Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.

To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq.,albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm.

Majority Opinion (Castille):  Download DC-_604793-v1-Pa__Supreme_Court_Tincher_majority_opinion

Concurring and Dissenting Opinion (Saylor):  Download DC-_604794-v1-Pa__Supreme_Court_concurring_and_dissenting_opinion_pdf

 

Updated:  Law 360:  Pa. Tort Revamp Gets High Marks From Both Sides

                   Liberty Blog:  Tort law remains a mess in Pennsylvania

 

November 20, 2014 in Products Liability | Permalink | Comments (0) | TrackBack (0)

PA: Justices Urged to Ban Informed Consent Forms from Strict Med Mal Trials

On Tuesday in Harrisburg, the justices heard arguments over whether informed consent forms should ever be admissible in strict med mal cases (those without allegations of informed consent violations).  Plaintiff's lawyer argued the forms could be used in a prejudicial way to insinuate that consent for the procedure included consent to risks caused by negligence.  Defense lawyer responded that the form could be relevant depending on the facts of the case.  Chief Justice Castille indicated that, for him, the case came down to the fact that a patient cannot consent to negligence.  Seven jurisdictions have adopted a blanket ban of informed consent forms in strict med mal cases; Pennsylvania will decide whether to become the eighth.  The Legal Intelligencer has the story.

November 20, 2014 in Current Affairs, Documents | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 19, 2014

Simmons on Tort Liability on Campus

Omari Scott Simmons (Wake Forest) has posted to SSRN Muted Deterrence:  The Enhanced Attribution of Tort Liability to U.S. Higher Education Institutions for Student Safety.  The abstract provides:

A key challenge facing modern universities is ensuring student safety. This task inevitably involves deterring risky behavior. The existing law on campus safety, however, inadequately addresses this challenge. This essay argues that an overemphasis on tort litigation fails to (i) adequately deter risky individual and institutional behaviors; (ii) provide incentives to higher education institutions to create safe campuses; and (iii) provide higher education institutions with the resources, know-how, and overall capacity to improve campus safety. Recognising the limitations of adversarial tort litigation in the student safety context, this essay, proposes a more collaborative, less adversarial, regulatory framework for making US campuses safer learning environments.

November 19, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

Pain and Suffering Resource

I'm in the middle of teaching damages, and that reminded me of an excellent resource.  If you have never checked out John Hochfelder's New York Injury Cases Blog, it's worth your time.  John's entire focus is on covering pain and suffering verdicts in significant detail.  He examines not only the legal angles, but the medical issues as well. 

November 18, 2014 in Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Postmortem on Prop 46

The LA Times has a postmortem on Prop 46, which was defeated by over 2/3 of the vote and in every single California county.  The piece examines the politics of raising the med mal cap in a blue state. 

November 17, 2014 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Friday, November 14, 2014

11th Cir: Cruise Lines Can Be Sued For Med Mal

This ruling is contrary to the majority rule and is significant because most suits against cruise lines occur in the Eleventh Circuit (most cruise lines are headquartered in Miami).  The Daily Report has the details.

November 14, 2014 in Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Exam Advice: How to Explain the Unforeseeable Plaintiff?

Beau Baez (Charlotte) writes:

Here is my recurring problem around final exam time:  how to explain to students when they need to discuss the unforeseeable plaintiff.  In most cases, the plaintiff is foreseeable, so on the exam I really don't want students to waste time identifying and discussing a non-issue.  A seasoned lawyer will "know it when they see it," but just as that was not satisfactory in the old obscenity cases it's not a great response in this context either.  I am wondering how other torts professors explain this context within the essay exam context. 

You can either respond in the comments or directly to Beau at:  hbaez@charlottelaw.edu.

November 13, 2014 in Teaching Torts | Permalink | Comments (3) | TrackBack (0)

Wednesday, November 12, 2014

Hackney on Calabresi

James Hackney (Northeastern) has posted to SSRN Guido Calabresi and the Construction of Contemporary American Legal Theory.  The abstract provides:

This article was written as a contribution to a symposium honoring Judge Guido Calabresi on the occasion of his 80th birthday, and recognizing his contributions to law and economics. It situates Judge Calabresi’s academic writings, starting with his initial contributions to law and neoclassical economics, against the broader backdrop of American legal theory. The article begins with a brief biographical sketch highlighting the author’s personal connection with Judge Calabresi. It then lays out the historical relationship between legal realism and law and neoclassical economics (commonly referred to as law and economics). This provides the background for Judge Calabresi’s initial major intervention — in the form of his historic book, The Costs of Accidents — into the discourse of American legal theory. The article then discusses what the author argues is a fundamental axis around which debates concerning the meaning of law revolve: the science-politics divide. This sets the groundwork for articulating the ways in which the three dominant strands of legal theory in the 1980s — law and economics, critical legal studies, and liberal-rights theory — were centered on the issue of whether law (and legal theory) was fundamentally a political or scientific enterprise. The article ends with an extended discussion of the ways in which Judge Calabresi’s post-The Costs of Accidents writings, too often overlooked, respond to the science-politics debate in a philosophically pragmatic way that reflects (and has paved the way for) the current state of American legal theory.

(Via Solum/LTB)

November 12, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 11, 2014

Haupt on Professional Speech

Claudia Haupt (Columbia) has posted to SSRN Professional Speech.  The abstract provides:

Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.

First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.

November 11, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Steinitz on an International Court of Civil Justice

Maya Steinitz (Iowa) has posted to SSRN The Case for an International Court of Civil Justice.  The abstract provides:

This Essay aims to start a conversation on a novel institutional solution to the problem that de facto (not de jure) there is today no forum in which foreign plaintiffs can obtain enforceable judgments against American corporations that commit mass torts overseas. That solution is the establishment of an International Court of Civil Justice (ICCJ). 

The Essay starts by describing what the author refers to as "the problem of the missing forum" – the global absence of an effective court for cross-border mass torts. It then provides a blueprint for an ICCJ. In so doing, it explains why an ICCJ is politically viable and may, specifically, appeal to rather than repel corporate America.

November 7, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

Prop 46 Rejected

Tuesday, November 4, 2014

Shmueli on Tort, Contract & Family Law

On October 23rd, Widener Law had the pleasure of hosting Benjamin Shmueli as he presented "Tort and Family Law:  Civil Actions for Acts that are Valid According to Religious Family Law but Harm the Rights of Spouses."  Shmueli is Senior Lecturer (Associate Professor) at Bar-Ilan University in Israel and, from 2013-2015, Senior Research Scholar at the Yale Law School.

Shmueli's engaging presentation focused on two case studies. Refusal to grant a get—a Jewish bill of
divorcein Jewish law and divorcing a wife unilaterally and against her will in Shari'a law (talaq/ repudiation) are practices permitted—even if not desirable—by religious law.  Shmueli argues that tort and contract law should be integrated, sensitively, with religious law.  His justifications:  a property rules/liability rules framework, legal pluralism, and justice-based considerations.  I am looking forward to the full book.  A short prospectus is here:  Download Tort_and_Family_Law-Short_Prospectus (1) 

November 4, 2014 in Books, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

MD: Reaffirms No Duty to Warn Rule

In May v. Air & Liquid Systems Corp., the Court of Special Appeals of Maryland reaffirmed the rule that there is no duty to warn of asbestos-containing replacement parts that defendants did not manufacture or place in the stream of commerce.

JDSupra has coverage here.

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