Friday, August 30, 2013
The ABA Journal reports that the Appellate Division of New Jersey Superior Court has held that a remote texter can be liable for injuries caused when the text-recipient has a car accident, but only if the texter knew that the recipient was driving and reading texts while driving.
A copy of the decision is available here.
Thanks to Lisa Smith-Butler for the alert.
Thursday, August 29, 2013
Yesterday thousands of former football players and their families reached a settlement with the NFL for $765M to fund medical exams, concussion-related compensation, medical research for retired NFL players and their families, and litigation expenses. The settlement must still be approved. The full CNN story is here. Howard Wasserman has commentary at Prawfs.
Yesterday I taught the first Torts class of the year. I always love starting it all over from the beginning and the promise of a fresh bunch of students. On the first day, I cover: 1. what's a tort? 2. what are the types of torts? and 3. why do we have torts?. I would do this regardless of which casebook I was using. How do others use the first day? Also, this is the first time I am teaching a one-semester, four-credit course instead of a two-semester, five-credit course. Thoughts on the differences?
Wednesday, August 28, 2013
Robert Rabin (Stanford) has posted to SSRN Reexamining the Pathways to Reduction in Tobacco-Related Disease. The abstract provides:
Five years ago, when I last wrote on tobacco policy, my perspective was to offer an assessment of the strengths and weaknesses of a half-century of tobacco control strategies aimed at reducing the health risks associated with cigarette smoking. I began with a discussion of informational strategies; then turned to public place restrictions; and followed with a treatment of excise tax initiatives. In my view, restrictions on advertising and promotion, and resort to tort litigation (the latter, of course, primarily in the privately-initiated common law sphere) had been less effective as control efforts, but nonetheless also warranted consideration. In the ensuing years, there have been a number of significant developments that have altered the course of tobacco control policy. Prominent among these developments has been the emergence of a stronger federal presence under the authority granted the Food & Drug Administration in the Family Smoking Prevention and Tobacco Control Act of 2009; the resort by the industry to litigation in a new guise — particularly reliant on the First Amendment — as an offensive weapon targeting regulatory controls; and the publication of the 2012 Surgeon General’s Report on youth smoking, which makes the case for top-priority attention to underage smoking behavior. These and related measures point to new pathways for breaking through a perceived recent loss of momentum in achieving further reductions in tobacco-related disease — new pathways, without abandoning what has worked in the recent past. I attempt to pull together these multiple fronts in a section focused on youth smoking, assessing the promise of present efforts to reduce the harms associated with tobacco. Finally, I offer some brief thoughts from a broader public health perspective, discussing the framework of tobacco control initiatives from the vantage point of the obesity problem.
Tuesday, August 27, 2013
Monday, August 26, 2013
Thursday, August 22, 2013
Keith Hylton (Boston University) has posted to SSRN The Economics of the Restatement and the Common Law. The abstract provides:
The common law process appears to have checks and balances that prevent the self-interest of a particular embedded actor (judge or lawyer) from having a substantial distortive effect. The question that follows is whether the Restatement project is also immune, to the same extent as the common law, from the self-interested incentives of actors involved in its creation. I argue that the Restatement process is far more vulnerable to distortion from self-interest than is the common law process.
Wednesday, August 21, 2013
The Oklahoman Speaker of the House has reportedly stated that "it will take 26 to 28 separate bills to reenact the lawsuit reform legislation of 2009." The OK Supreme Court struck down the tort reform bill back in June. More from the Oklahoma Watchdog.
Tuesday, August 20, 2013
Monday, August 19, 2013
The Chamber's Institute for Legal Reform recently released International Comparisons of Litigation Costs: Europe, the United States and Canada. From the description:
The purpose of this study is to compare liability costs – a phrase used here to describe the costs of claims, whether resolved through litigation or other claims resolution processes – as a fraction of GDP across Europe, the U.S. and Canada. General liability insurance sold to companies provides a basis for comparison because it covers similar types of liability costs in each country....
Key findings are as follows:
The U.S. has the highest liability costs as a percentage of GDP of the countries surveyed, with liability costs at 2.6 times the average level of the Eurozone economies (see Figure 1).
U.S. liability costs are four times higher than those of the least costly European countries in our study – Belgium, the Netherlands and Portugal.
- Although the U.S. has by far the most costly liability system, our analysis shows that liability costs in the U.K., Germany and Denmark have risen between 13% and 25% per year since 2008.
Friday, August 16, 2013
Scott Hershovitz (Michigan) has posted two pieces to SSRN. First up is this year's Monsanto Lecture: What Does Tort Law Do? What Can it Do?. The abstract provides:
It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts.
In this essay (delivered as the 2012 Monsanto Lecture at Valparaiso University School of Law), I argue that tort is concerned with those injuries and invasions because it aims at corrective justice, not efficiency. But I contend that the corrective justice tort pursues is not best understood on an Aristotelian model, which requires that wrongful transactions be reversed. Rather, I argue, tort pursues corrective justice in much the same way that revenge does — by offering a performance aimed at persuading us that victim and wrongdoer are even in respect of the wrong.
Next is Tort as a Substitute for Revenge. The abstract provides:
In 1870, William Alcorn sued Andrew Mitchell for trespass. His suit did not go well, and at the end of trial, just after the court adjourned, Alcorn spit in Mitchell’s face. Mitchell then turned the tables and sued Alcorn for battery. He won a judgment for $1000, which the Illinois Supreme Court approved on the ground that awarding “liberal damages . . . save[d] the necessity of resort to personal violence as the only means of redress.” In the Court’s view, Alcorn had to pay so that Mitchell would not have to strike back.
The idea that tort suits substitute for revenge is still with us today. But it is not clear how the substitution is supposed to work. Taking Alcorn v. Mitchell as a template, I argue that the primary reason for regarding tort as a substitute for revenge is that both are tools for doing corrective justice. Along the way, I develop and defend a communicative conception of corrective justice, and I argue that tort and revenge share similar expressive aims.
Thursday, August 15, 2013
Jill Wieber Lens (Baylor) has posted to SSRN No Matter the Enormous Cost: A Defendant's Accuracy-Based Right to Present Defenses. The abstract provides:
The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.
The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court requiredindividualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.
Wednesday, August 14, 2013
Paul Figley (American) has published "Using Problems to Teach Quantitative Damages in a First Year Torts Class" in the Journal of Legal Education. The article discusses methods to teach 1Ls how to actually calculate damages in a torts case, such a future income. Figley suggests a "Festival of Damages" class day, where "the students serve as advocates, judges, and reporters to discuss and argue specific damages issues." The article provides instructions for how to incorporate this idea into your own class.
Tuesday, August 13, 2013
John Culhane (Widener) has posted to SSRN Sandusky's Victims: Compensation, Vindication, and Blame. The abstract provides:
In a select group of high-profile cases, compensation funds have begun to emerge as an alternative to tort law. After the tragic events of September 11, 2001, Congress created a Victim Compensation Fund for the families of those killed, and then expanded the fund in 2010 to cover first responders and others who suffered from long-term injuries in the aftermath of the attack. After the Deep Horizon Oil Spill in April 2010, BP established a compensation fund mostly to pay those who could prove they had suffered economic loss. Most recently, a compensation fund was created to compensate victims in the sex abuse case involving Earl Bradley, a Delaware pediatrician whose decades-long abuse of small children has caused untold physical and emotional suffering.
The cases that have given rise to these compensation schemes have little in common. This article explores the principal distinctions among them, and concludes that it is difficult to discern any rhyme or reason to the circumstances that give rise to compensation funds, or to the justification or shape of these funds when they are established. In the course of this project, the article sets forth some ground rules for deciding whether a compensation fund is a justifiable in particular cases.
With this analysis as backdrop, I then make the argument that the sex abuse case involving Penn State employee Jerry Sandusky case is an especially apt candidate for a compensation fund, and that the fund created to settle the civil case against Earl Bradley case provides a useful (though not perfect) template to follow in fashioning relief. The article concludes with a few more general observations on the special suitability of compensation funds to sex abuse cases.
Monday, August 12, 2013
For readers with an interest in comparative or international tort law, Melbourne Law School has launched a new blog, Opinions on High, which focuses on decisions of the High Court of Australia. A recent post, for examples, examines the duty to warn in the medical malpractice context under Australian law.
Friday, August 9, 2013
Deborah J. LaFetra has an informative post at Pacific Legal Foundation on the Maryland Court of Appeals' decision in Georgia-Pacific v. Farrar. This, of course, is the "bystander of a bystander" asbestos case, where the grandaughter of a worker who worked near another worker who worked with asbestos-products sued for her mesothelioma. The Court of Appeals rejected the duty to warn.
Thursday, August 8, 2013
Wednesday, August 7, 2013
Back in June, Chris provided a thorough summary of the Pittsburgh zoo mauling case. Yesterday, the Pittsburgh Tribune reported that the judge refused to dismiss the plaintiff's punitive damages and strict liability claims. Discovery will now begin in the case.
Tuesday, August 6, 2013
The Connecticut Law Tribune reports that a Connecticut attorney has been "charged with nine federal offenses" related to an insurance fraud scheme. The article reports:
As alleged in the indictment, Haddad, who lives in Orange, and the others defrauded insurance companies by exaggerating the auto accident injuries sustained by Haddad's clients, and the cost of their medical care, to justify larger monetary settlements with insurance companies. Authorities say more than 10 insurance carriers lost a total of approximately $2.5 million. The Connecticut Post lists Travelers, Metropolitan, Progressive, Esurance and Nationwide as being among those that were defrauded from December 2006 to February 2010.
In June, Allstate and Deerbrook insurance companies filed a federal civil lawsuit against Haddad and others involved allegedly involved in the scheme. According to the suit, beginning in 2006, Haddad and others began to "defraud Allstate by submitting bils for medical treatment that was unneccessary, worthless, and often based on fictitious clinical findings or diagnosis."
Thanks to Lisa-Smith Butler for the alert.