TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Tuesday, April 5, 2011

Tuesdays with Torts Masters: Oscar Gray


    Oscar S. Gray is the Jacob A. France Professor Emeritus of Torts at the University of Maryland School of Law and the 2010 recipient of the William L. Prosser Award from the AALS Section on Torts and Compensation Systems.  He is perhaps best known as the surviving co-author of the definitive six-volume treatise on tort law, Harper, James and Gray on Torts and as a co-editor of Cases and Materials on the Law of Torts, along with the late Harry Shulman, the late Fleming James Jr., and Donald Gifford.

    Before entering the academic world, Professor Gray served as an attorney-adviser in the Legal Adviser's Office of the U.S. Department of State; special counsel to the President's Task Force on Communications Policy; and as acting director of the Office of Environmental Impact for the U.S. Department of Transportation.  He also joined and became a vice president and director of a start-up company in the nuclear materials field. In addition to his decades of teaching and scholarship at the University of Maryland School of Law, Professor Gray has taught at the Georgetown University Law Center, the University of Tennessee College of Law, and the Catholic University of American School of Law.   He is a member of the American Law Institute, the Selden Society, and Phi Beta Kappa.

    It was a personal pleasure and privilege for me to interview Oscar--my colleague, mentor and friend--on March 10, 2011 at the University of Maryland School of Law.  The interview follows.

                          ---Don Gifford

                             Edward M. Robertson Research Professor of Law

                             University of Maryland


1.    Why did you apply to law school?  Where did you go to law school, and why did you select that school?

     Law school was a possibility in the back of my mind for a long time. The actual decision came about as a result of a confluence of three factors as I was approaching graduation from Yale College.  One was that I had to figure out what I wanted to do after graduating.  And my thinking about that involved speculation about what I might like to do, and the conclusion that I would never be able to make a living with a Ph.D. in History or English.  The second factor, I suppose, was that at this time I still dreamed of changing the world.  The third factor was the desire to promote justice.  My sense was that from the point of view of public life, law was the mechanism for bringing about social change, and looked at from the point of view of retail justice, law again was a way—perhaps the most striking way—of fighting for the righting of wrongs.  All this was what was attractive about law.

     What were the injustices and wrongs that you were focused on when you thought about these things?

     Oh my heavens!  The general oppression of people.  One of the big problems of course then was racism.  The taking advantage of poor people by the rich was a problem then as it is now, as it has been since biblical times.  Those were the factors and then I suppose, what sealed my interest was that at that time, the Yale Law School had a local reputation among the students of being the best liberal arts graduate department in Yale University. And that’s why I chose Yale.

2.    Who was your Torts professor, and what was your experience as a Torts student?

     Well my experiences as a student were that I was essentially hiding under the desk not to be called upon!  I had two teachers: Harry Shulman and Fleming James, Jr.  Shulman was the greatest Socratic scholar that I have ever encountered anywhere.  While I was terrified of him, his pressure was never gratuitous.  There was always a very clear pedagogic objective to everything he said and everything he asked; it was always constructive, always tremendously challenging.  It was immensely valuable.  Between him and James, I think I had the best introduction to Torts I could have hoped for. 

     Fleming James was not as flashy a teacher as Shulman, but he was an experienced torts practitioner and had already demonstrated a great deal of thoughtfulness in a series of law review articles about torts which developed into a whole body of thinking that ultimately I had the privilege of working with for the rest of my life.

     From an early time at the law school, I had contact with Fowler Harper as well.  Harper probably had the greatest reputation of any of the members of our faculty for torts scholarship, as author of Harper on Torts, but at that time was not teaching Torts.  He taught Constitutional Law, and I had him as a Constitutional Law teacher my first term.  Later, I was a student research assistant of his on a casebook he was doing on family law, and it was one of the famous and really important casebooks of its time because I believe it was the first family law casebook that drew extensively on the results of social science research and applied them to problems in family law.

3.     How did you become interested in teaching law and Torts in particular?

     I first thought about law teaching while I was in law school simply because I admired the teachers so much.  It just seemed as if that would be a wonderful way to live if it were ever possible to have the opportunity, so in the back of my mind I was always predisposed towards teaching.

     Seventeen years or so after graduation from Law School, I had the opportunity to establish the Office of Environmental Impact in the Department of Transportation, and I had a dandy time trying to prevent roads from doing unnecessary environmental harm.  After three years in that position, I left and that’s when I started to teach.  I had some offers to teach something called Environmental Law which I had never heard of before then but which seemed like a natural thing.  I started doing a casebook because there were no casebooks on environmental law.  I taught Environmental Law courses at Georgetown and at Catholic University. 

4.    When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?

     In 1970, Georgetown Law School significantly over-enrolled students.  It needed professors to teach an additional section of Torts.  The dean at Georgetown was my old senior supervisor from State, the former Legal Adviser of the Department of State, Adrian S. Fisher. Fisher asked me whether I would like to teach Torts.  I was thrilled at the opportunity, and that’s how I got a chance to become a Torts teacher.

     My first step was to telephone James in New Haven to try to remind him who I was, which I didn’t expect him to remember; this was, after all, over twenty years after I had taken the course from him.  I told him what had happened and asked whether he could help.  He asked, “Can you come up to New Haven tomorrow?”   I said yes; got on the train and went up and he had the whole torts faculty of Yale lined up to talk to me and give me whatever help they could to get started.  They were all very, very helpful to me.  That is where I met Guido Calabresi. 

     When James drove me back to the train station when I was leaving, he asked me how I would like to work on revising his Shulman and James casebook.  I said, “I accept”!  And so I got back to Washington all set to teach a course that I hadn’t thought about much for over twenty years, and all set to do what turned out to be a very big work of scholarship for me. Later, after I had done the casebook, James asked whether I would like to help revise the treatise.  Obviously I was very pleased to do that.

     As to the changes, I think the central issue addressed in the Torts course as Shulman and James envisaged it and in the one that many professors teach today remains the same: the problem of dealing with accidents.

     It’s hard for me to judge what teachers were like back then in comparison with my own experience with their present-day successors.  I have a very high regard for the quality of applicants for teaching positions whom we see at Maryland.  On the other hand, to try to generalize about trends and differences is difficult for me because when I think of the productivity of the teachers when I was a student, it just seems fabulous compared with the productivity of anybody I know today, other than Posner and Calabresi, and one or two others.  The Yale Law Faculty had 35 teachers when I was a student.  Harper, having previously authored Harper on Torts, which was the treatise on torts in America before Prosser, was also teaching Constitutional Law, teaching Family Law, and writing in both fields.  James was doing a tremendous output of tort work and civil procedure at the same time. 

5.    What do you see as your major accomplishments as a scholar and teacher?

     Well, I don’t know that I’ve accomplished anything major.  It has been a satisfaction for me to have been able to contribute toward the keeping alive of the voices of Shulman and James, and Harper, so that they can continue to speak to new generations of students and scholars.  I think that’s been a contribution to those of us who have access to this material, and in the case of Harper it is of considerable personal satisfaction as well.  But I suppose that’s what makes me feel the best.

April 5, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 15, 2011

Congratulations to TortsProf's Chris Robinette!

Robinette300x266Faculty_hbCongratulations to Torts Prof's own Chris Robinette for being awarded tenure at Widener University School of Law!!

We are delighted for Chris, though not at all surprised by his latest accomplishment!

So, please join us in extending congratulations from TortsProf!


March 15, 2011 in TortsProfs | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 8, 2011

Sharkey on Recent Preemption Cases

In an interview at Abnormal Use, Cathy Sharkey (NYU) discusses the Supreme Court's recent preemption decisions Brusewitz v. Wyeth and Williamson v. Mazda Motors of Am., Inc.


March 8, 2011 in Current Affairs, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 1, 2011

Tuesdays with Tort Masters: Lester Brickman

Brickman (2)

Lester Brickman is a Professor of Law and former Acting Dean at the Benjamin N. Cardozo School of Law, where he teaches contracts and legal ethics.  He has written extensively on legal ethics and his writings have been widely cited in treatises, casebooks, scholarly journals and judicial opinions (including the United States Supreme Court, United States Circuit Courts of Appeals, state supreme courts and federal and state appellate and trial courts). Among his areas of specialty are contingency fees and their effect on the tort system, mass tort litigation, asbestos litigation, regulation of attorney fees in the tobacco litigations, fee arbitration, and class actions.  Professor Brickman recently published a book on contingency fees:  Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press). 

I recently was able to ask Professor Brickman some questions about his career:

Q:  Why did you apply to law school?  Where did you go to law school, and why did you select that school?

It was expected that I would choose law or medicine as a career.  Since I fainted at the sight of my own blood being drawn, my choice was clear.  But first, as an act of rebellion, for undergraduate work, I attended Carnegie Tech, now Carnegie Mellon, seeking a career in science.  Mediocre performance during four semesters of calculus and one semester of differential equations brought me back into the fold.

My parents lived in Miami Beach, Florida where my father held a political appointment.  I choose the University of Florida for law school fully intending to practice law in South Florida and indeed had already received overtures from some lawyers about joining their practice.

Q:  How did you become interested in teaching law and Torts in particular?

In my second year of law school, I was thumbing through Florida Statutes Annotated, looking for a note topic for law review when I stumbled onto a statute providing for establishment of a motion picture censorship board.  Though I did not know it at the time, that flicking of my thumb launched my teaching career.   Over the course of 1½ semesters, I undertook a massive empirical effort into how the statute came to be enacted and how it was being enforced.  I travelled throughout the state interviewing political leaders who were responsible for enacting the statute in the 1920’s and States’ Attorneys in 30-40 of Florida’s 67 counties responsible for enforcing laws prohibiting obscenity.  My “law in action” analysis led me to conclude that the statute had been captured by the motion picture exhibition industry.  The industry used the statute to preempt enforcement by county officials of obscenity laws against exhibitors at a time when "I am Curious (Yellow)" and other films of that genre began appearing in “art houses.”   At the same time, the statute was entirely dormant -- the censorship board having been abandoned in the 1930’s -- so the net effect was an exemption for the industry from obscenity laws.

The industry regarded my efforts with alarm.  Their chief lobbyist, a political powerhouse with high level ties to the University of Florida, called the dean of the law school to request that the law review not publish my note.  The dean (and the law review) complied. 

My efforts also attracted the attention of a cadre of law professors who held degrees from the Yale Graduate Law Program.  They conspired to divert me from a career as a practitioner and instead use my research talents as a law professor.  And so I went to Yale to get an LL.M so as to qualify for a teaching position.

At the time I went to Yale, my Con Law teacher at Florida, Karl Krastin, who along with Professors Walter Weyrauch, Walter Probert, and Ernie Jones had taken the lead oar in my career change, left Florida to launch the day division law school program at the University of Toledo.  When I came on the market, in 1965 Karl hired me and thus began my teaching career.

I have never taught Torts.  If that means I am to be stripped of my “Master of Tort Law” designation, so be it.  So how then have I become associated with torts and especially, mass torts?  By way of the cow’s barn.  Here is the route.

I have been teaching legal ethics since the outset of my teaching career.  In the mid-1980s, I developed a specialized interest in ethical issues raised by lawyers’ fees.  In several articles, I challenged the use of the nonrefundable retainer -- an upfront, nonrefundable fee charged by matrimonial, criminal and bankruptcy lawyers often amounting to thousands of dollars, which a lawyer would entirely keep even if the next day the client decided not to proceed and the lawyer had not yet done any work.  Relying on this scholarship, New York’s highest court outlawed the use of nonrefundable retainers, and several other state supreme courts have followed suit. 

By the late 1980s, I had begun to delve into lawyers’ contingency fee practices.  In a 1989 article in the UCLA Law Review, I criticized the practice of charging standard one-third contingency fees in cases where there was no meaningful contingency or risk.  I likened charging contingency fees in the absence of risk to Hamlet without the Prince of Denmark.  Based on this article and others that followed, I developed a public profile as a critic of lawyers’ fee abuses and have been a key participant in the ongoing battles to reform contingency fee practices.  My interest in contingency fees led me to focus my research on mass torts and I have published several articles on fraudulent claim generation driven by contingency fees in such mass tort litigations as asbestos, silica, fen-phen (the diet drugs), silicone breast implants, and welding fumes.  Here, too, I have acquired a reputation as the leading expositor of mass tort fraud.  

I have poured the sum total of this experience into a book that I have just published:  Lawyer Barons: What Their Contingency Fees Really Cost America.  Though contingency fees have been hotly debated among legal experts over the last several decades, this is the first book that analyzes the costs imposed by contingency fees and challenges the view of torts scholars that tort lawyers’ profits, though great, are socially beneficial.  Contrary to a broad consensus in contemporary legal scholarship, I argue that the level of financial incentives available to lawyers to litigate do distort the objectives of our civil justice system and impose other unconscionable social costs. 

Q:  What do you see as your major accomplishments as a scholar?

In addition to Lawyer Barons and my scholarship on contingency fees, I would list my success in getting the New York Court of Appeals to ban nonrefundable retainers; getting Congress to pass a law requiring that insurance companies and others sending checks to lawyers in settlement of tort claims or to satisfy judgments have to issue 1099s.  (Until there, tort lawyers were the only occupational group not covered by the 1099 issuance requirement); and my co-authored “early offer” proposal which has garnered attention in most Professional Responsibility casebooks and which seeks to resuscitate long dormant ethical rules by limiting the application of tort lawyers’ contingency fees to the value they add to tort claims.


March 1, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 22, 2011

Tuesdays with Torts Masters: Jeffrey O'Connell

O%27Connell-2 Jeffrey O'Connell, the Samuel H. McCoy II Professor of Law at Virginia, is co-author of the principal work that proposed no-fault insurance. Most recently O'Connell has designed an "early offers" plan where businesses facing personal injury lawsuits could promptly pay injured parties for out-of-pocket medical expenses and lost wages.

After O'Connell graduated from Harvard Law School, he was a trial lawyer in Boston with the firm of Hale & Dorr. He came to Virginia in 1980 after 16 years at the University of Illinois. He also has taught at the University of Iowa and has been a visiting professor at Northwestern, the University of Michigan, Southern Methodist University, the University of Texas at Austin, the University of Washington, and Oxford and Cambridge universities in England. He was the recipient of Guggenheim fellowships in 1973 and 1979. In 1989 he was the Thomas Jefferson Visiting Fellow at Downing College, Cambridge University and, in 1991, the John Marshall Harlan Visiting Distinguished Professor at New York Law School. In 1992 he received the Robert B. McKay Award for Tort and Insurance Scholarship from the American Bar Association.

Jeffrey was my Torts professor and the reason, in several ways, that I'm in the academy.  I recently had the chance to ask him some questions about his background.

  1. Why did you apply to law school?  Where did you go to law school, and why did you select that school?

I applied to law school out of interest in both legal and political matters. I went to Harvard because it was near home and I intended to practice in Massachusetts.

    2.    Who was your Torts professor, and what was your experience as a Torts student?

My Torts professor was Calvert McGruder, a sitting federal judge on the First Circuit, who taught part-time. It was not a very enlightening course.

    3.    How did you become interested in teaching law and Torts in particular?

I became interested in teaching Torts rather indirectly. The professor teaching it for years was retiring and, although I did not consider it to be my major research activity, I thought it would be a good first- year course to teach. I quickly became aware, through the writings of Fleming James, of what a disaster tort law was and how much reform was needed. As to my becoming interested in teaching law in the first place, I taught speech at Tufts University as a means of putting myself through law
school and found that I much enjoyed teaching and the law.

    4.   When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?

I began teaching torts in about 1961. Unfortunately, except for a few scholars, most tort books have not challenged the outmoded criteria of negligence in a modern, mechanized world. For the typical personal injury case, tort law has progressed little if at all.

    5.    What do you see as your major accomplishments as a scholar and teacher?

My major accomplishment as a teacher and a scholar arose early in my career when I joined with Prof. Robert Keeton of the Harvard Law school in proposing what is generally credited as the leading cause of the adoption of no-fault insurance. And I'm still a fan despite all the tribulations that a major legal reform faces.


February 22, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 15, 2011

Tuesdays with Torts Masters: David Robertson

Robertson_david_lgDavid W. Robertson is the W. Page Keeton Chair in Tort Law and University Distinguished Professor at the University of Texas at Austin.  He is the author of the classic Admiralty and Federalism (Foundation, 1970), co-author of Cases and Materials on Torts (West, 2nd ed., 1998), and co-author of The Maritime Law of the United States (Carolina 2000) and Cases and Materials on Torts (West, 3d ed., 2004). His numerous articles have appeared in Texas Law Review, Michigan Law Review, Modern Law Review, Law Quarterly Review, Tulane Law Review and elsewhere. He is a member of the American Law Institute and serves on the Advising Board of Editors of the Journal of Maritime Law and Commerce

I recently was able to ask Professor Robertson some questions about his torts experience:

Q:  Why did you apply to law school?  Where did you go to law school, and why did you select that school? 

Late summer, 1958, headed into my 4th year as an undergrad. at LSU, I discover that I have ample credit hours but cannot muster a major  (close in English, French, history, philosophy but not close enough). BUT:  A year in law school will give me a BA with a major in pre-law (and of course w/option to continue law school if 1st year survived [about half flunked out in those years]).  So off to LSU law I went.

Q:  Who was your Torts professor, and what was your experience as a Tort student? 

Wex Smathers Malone, a giant.  A lovely teacher.  A true character.  

Because I had to work in the afternoons to survive [and LSU Law had scheduled 1st-year classes to discourage or prohibit 1st-year students from working] I had to seek special permission to take a shortened load in 1st year and thus had torts (a year-long course) in 2d.  It seemed a little simple to me--what a truly stupid notion that was!--compared to the 2d-year subjects, and at that time I didn't fall in love w/the subject matter.

Q:  How did you become interested in teaching law and Torts in particular? 

After graduation from law school in 1961, I took a job with the U.S. Senate.  As that was reaching its natural (for me anyway) endpoint, I was juggling law firm possibilities and scholarship offers for grad law school at Yale and Harvard--really just trying to find a way to avoid a real job--when Charles Reynard, LSU prof, died.  The LSU law faculty (as I rememer it) had suddenly shrunk from 13 to 12, and Dean Paul M. Hebert called me and asked me to come and fill in  (as an Instructor) for a year or two.  I was hoping to teach contracts and criminal law.  Instead I was assigned History of the Common Law (in Louisiana, a foreign subject), Trusts (which Louisiana law did not recognize until years later), Moot Court (I had never been to court)  and Torts.  It wasn't hard to fall in love with Torts in that context.

Q:  When did you begin teaching Torts, and how has the course and the Torts professoriate changed since then? 

1962.  At most self-described "elite" schools, torts has shrunk from a year-long 6 to a year-long 5 to a semester 4 to a semester 3.  They call this tort reform.  Re professoriate:  "Elite" academies are filled with people who want to use tort law as a basis for social science experiments and theories but who don't care to learn or teach how to DO tort law.  [In the middle of my academic career, I resigned to go into private practice and so have done some tort law and liked it pretty well.]

Q:  What do you see as your major accomplishments as a Torts scholar (and teacher)? 

Question seems premature to me, because I'm still teaching and confidently expecting a major accomplishment at any moment.  Meanwhile, I'll cite the forthcoming 4th edition of a very good (how to do tort law) casebook, a series of articles on factual causation, and maybe 5000 or more alums who generously say I taught them something useful.


February 15, 2011 in TortsProfs | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 8, 2011

Tuesdays with Torts Masters: Robert Rabin


An expert on torts and legislative compensation schemes, Robert Rabin is highly regarded for his extensive knowledge of the history and institutional dynamics of accident law. He is a prolific author on issues relating to the functions of the tort system and alternative regulatory schemes and is the co-editor of a classic casebook on tort law.

Professor Rabin is currently an advisor to the ongoing American Law Institute Restatement of Torts Third project and has been the program director for the Robert Wood Johnson Foundation Program on Tobacco Policy Research and Evaluation, as well as a reporter for the American Law Institute Project on Compensation and Liability for Product and Process Injuries and the American Bar Association Action Commission to Improve the Tort Liability System. He has been a member of the Stanford Law School faculty since 1970.

I recently had the chance to ask some questions about his background.

1.  Why did you apply to law school?  Where did you go to law school, and why did you select that school?

As I came near finishing my undergrad education, I wasn’t sure what to do next. A good friend who was planning to attend law school in the fall suggested that I take the LSAT, apply to law schools, and consider it as an option. Sounded reasonable. Subsequently, I was awarded a full tuition scholarship and so decided it was worth trying at least for a year. For a variety of personal reasons I wanted to stay in Chicago (after attending Northwestern Univ. undergrad), and went on to get my degree at Northwestern Univ. School of Law.

2.  Who was your Torts professor, and what was your experience as a Torts student?

My torts professor was a visitor at Northwestern, Walter Probert, from U. of Florida. There was nothing singular about my experience in Torts; my favorite courses as a 1L were Contracts and Civil Procedure, in both of which I was especially intellectually stimulated by the classroom instruction.

3.  How did you become interested in teaching law and Torts in particular?

My interest in teaching law was a carryover from the best of the courses I took: the dynamic give-and-take in the classroom was intellectually stimulating in those classes. The idea of doing research and writing on whatever topics seemed of interest to me also was very attractive. I wandered into torts teaching in the same way I wandered into law school: The dean at Wisconsin (my first academic appointment) told me that they needed a torts teacher and I was it. The course was of immediate interest to me—although my early research and writing was primarily in the administrative law area. (I had gone on to do a doctorate in political science after finishing law school.)

4.  When did you begin teaching Torts, and how have the course and the Torts professoriate changed since then?

Torts was the first course I taught, back in 1966. At first, I just followed the lead of the casebook (Gregory&Kalven, a very fine casebook); I had no overarching conception of my own. As time passed, and I moved from Wisconsin to Stanford, I adopted my new colleague Marc Franklin’s casebook, which was roughly organized around the concept of tort and alternative approaches to addressing the social problem of accidental harm (with virtually no attention to intentional torts). I found this focus appealing, and over the years my approach to this framework of accident law—both in teaching and research—has become more interdisciplinary, and it has broadened to encompass both no-fault alternatives and regulation alternatives to dealing with health and safety-related injuries.

5.  What do you see as your major accomplishments as a scholar and teacher?

As a teacher, I’ve tried to convey in the classroom my own intellectual and policy-related interests in torts, and more broadly, the regulation of health and safety risks. On this score, I feel a sense of satisfaction in the feedback that I’ve received from students over the years.

I’ve pursued the same themes in my scholarship. It would take a long essay to develop the particulars about what pathways I’ve taken and which of my articles and books seem to me most satisfying. Without meaning to seem self-effacing, I’d prefer to leave to others the assessment of which works of mine seem major accomplishments.


February 8, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, February 7, 2011

Brickman's "Lawyer Barons"

Barons coverpage Lawyer Barons: What Their Contingency Fees Really Cost America by Professor Lester Brickman (Cardozo) has hit the shelves.  From the publisher:

This book is a broad and deep inquiry into how contingency fees distort our civil justice system, influence our political system and endanger democratic governance.  While the public senses that lawyers manipulate the justice system to serve their own ends, few are aware of the high costs that come with contingency fees.  This book sets out to change that, providing a window into the seamy underworld of contingency fees that the bar and the courts not only tolerate but even protect and nurture.  Contrary to a broad academic consensus, the book argues that the financial incentives for lawyers to litigate are so inordinately high that they perversely impact our civil justice system and impose other unconscionable costs.  It thus presents the intellectual architecture that underpins all tort reform efforts.

Chief Judge Dennis Jacobs of the United States Court of Appeals for the Second Circuit recently wrote a review of the book for the New York Law Journal (subscription only)Judge Jacobs wrote:

There is no shortage of books and articles deploring defects in lawyer ethics.  The novelty of "Lawyer Barons" is that it focuses on the contingency fee as a business model.  Mr. Brickman argues that the prevailing business model is based on a systematic conflict of interest on the part of lawyers who collect their large fraction on claims that have no appreciable risk; who collect fees on the portion of recoveries that were available at the outset, without counsel or litigation; who conduct class actions that serve no one but lawyers; who spread panic over questionable mass torts; and who corrupt medicine and science itself. . . . The book amounts to a call for remedial action by honest members of our professiona, and is convincing on the level that the professional institutions, including bar associations, courts, and law schools, should look into these claims and consider whether remedial action is indicated and feasible. 


February 7, 2011 in Scholarship, TortsProfs | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 1, 2011

Tuesdays with Torts Masters: Victor Schwartz

Schwar_v_15 Victor E. Schwartz  chairs the Public Policy Group at Shook, Hardy & Bacon.   He co-authors the nation’s leading torts casebook, Prosser, Wade & Schwartz’s Torts (11th ed. 2005), and authors Comparative Negligence, the principal text on the subject. Victor is former dean of the University of Cincinnati College of Law, and currently serves on its Board of Visitors. During his academic career, Victor litigated cases on behalf of plaintiffs, and secured the first punitive damages award in the Midwest against a manufacturer of a defective product.   Today, Victor serves as general counsel to the American Tort Reform Association, and co-chairs the American Legislative Exchange Council’s (ALEC) Civil Justice Task Force. He was a recipient of The Jeffersonian Award, ALEC’s highest honor bestowed on persons in the private sector.   Victor served on the advisory committees of all three of the American Law Institute’s Restatement (Third) of Torts projects: Products Liability, Apportionment of Liability, and General Principles.   Victor chaired the federal government’s Inter-Agency Task Force on Product Liability and the Department of Commerce’s Inter-Agency Task Force on Insurance and Accident Compensation.  He was awarded the Secretary of Commerce’s Medal of Excellence for his service.

Here's my conversation with Victor: 

Q:  Why did you apply to law school?  Where did you go to law school, and why did you select that school?

 When I was about 11 years old, I watched the Army-McCarthy hearings on television.  I found this “show” riveting.  I saw all of these lawyers involved and decided if and when I grow up, I want to do something like that and be part of it.  I went to Columbia Law School and chose it because I thought a degree from that school would provide a solid calling card for a good job.  No one in my family had been a lawyer.  My dad died with I was ten.  I realized that I had to make my own entrance into the law based on my own merits.

 Q:  Who was your Torts professor, and what was your experience as a Tort student?

I had two torts professors, Willis Reese and Alfred Hill.  Willis Reese made the law of torts into an organized system.  He was funny and made class a memorable experience.  Professor Hill saw tort law as pure vapor.  There were no “real” rules.  Tort law was like biting into cotton candy.  It was there, but it really was not.  He had a drier sense of humor than Professor Reese, but he was a great educator.  Each professor had a totally different vision of the subject.  In sum, my experience as a torts student was an outstanding one and helped me as a torts professor.

Q:  How did you become interested in teaching law and Torts in particular?

 I became interested in teaching law while serving as a law clerk to the Honorable Charles M. Metzner.  Judge Metzner was a respected Federal Judge in the Southern District of New York.  Part of my job was to read briefs on both sides in a case and draft opinions of law.  The goal was finding a fair and just result, not representing any particular party.  Through the course of the two year clerkship, I looked for a vehicle where I could continue to search for the right answer and teaching seemed to be the best vehicle to achieve that goal.  My torts professors inspired me to learn more about the subject, but what I liked about it most was that it was organic, always changing and not wedded to interpretation of statutes.

Q:  When did you begin teaching Torts, and how has the course and the Torts professoriate changed since then?

I began teaching torts in 1967 at the young age of 26.  Most professors at the time focused on the substantive law of torts, the reasons behind the rules, whether the rules were sound in their contents and whether they should be changed.  There was a beginning of a focus on alternatives to the tort system such as no-fault compensation in the area of automobile accidents.  In 2011, a significant number of torts professors believe that the “students can learn the rules on their own” and the focus of those professors is on law and economics and broader public policy considerations.

Q:  What do you see as your major accomplishments as a Torts scholar (and former teacher)?

With the invaluable help and guidance of the late Dean John W. Wade, we were able to preserve and expand the use of the torts case book founded by William L. Prosser.  Often when a great professor dies who is author of a case book, the case book has a rather brief shelf life.  John and I began working together on the 6th edition, which was published in 1976.  My new co-authors Professor Kathy Kelly and Dean David Partlet are a terrific team.  We finished the 12 edition last May and it was published last year 2010.   

A challenge has been to work in the so-called real world of the practice of law as a former torts scholar.  I utilized what I have learned as a scholar in a practical way.  I had the wise guidance of the lawyers in my practice group, other lawyers in the firm, and staff.  I have been able to blend scholarship with practical results that some have found worthwhile.  We have been part of the enactment of almost 200 state legislative initiatives, bills that have passed the Congress of the U.S. and have been signed into law, amicus briefs that have affected the outcome of cases in the Supreme Court of the United States and in state Supreme Courts with the help of colleagues, I have continued to write law review articles.  All has been a lot of fun. It has been a privilege to be part of two different worlds, academia and practice.


February 1, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

Masters of Tort Law Series

As we mentioned back in November, we are introducing a new feature at TortsProf in conjunction with the AALS Torts & Compensation Section, chaired by Mike Rustad (Suffolk).   Many of you may be familiar with Mitch Albom's popular book, Tuesdays With Morrie.  In the book, Albom rediscovered his former college professor and mentor Morrie Schwartz.  Albom visited Schwartz in his study every Tuesday for the rest of Schwartz's life.  The book captures the wit and wisdom of these visits.

Beginning next week, we invite you to join us for the "Tuesdays With...." series, featuring conversations with senior Torts professors who have been nominated as "Masters of Tort Law."   

- TortsProfs

January 25, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

Congratulations to Alexandra Lahav!

Congratulations to Alexandra Lahav, our colleague over at Mass Tort Litigation Blog!   She has been named the recipient of the First Annual Fred Zacharias Scholarship Prize for her article Portraits of Resistance:  How Lawyers Respond to Unjust Proceedings, 57 UCLA L. Rev. 725 (2010). The abstract provides:

This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own.

The purpose of the Article is to paint a landscape of lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals such as whether lawyers who participate in unjust tribunals are complicit in injustice and what lawyers can do in the face of an unjust procedural regime. It presents a new way of understanding the forms of lawyer resistance to injustice. The Article demonstrates that complicity and resistance are not on opposite poles of human behavior within organizational systems. Rather, there is a dualistic interplay between complicity and resistance. Acts that appear to be resistance can be perceived as complicit, and acts that appear to be complicit can result in powerful forms of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to his or her client and whether lawyers can know when a tribunal is so unjust as to merit resistance. It concludes by considering avenues for further research.

Thanks to Legal Ethics Forum for the info.


January 11, 2011 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 14, 2010

Robinette Named Editor of Volume 6 of Appleman's Insurance

TortsProf's own Chris Robinette is the editor for Volume 6 of the venerable treatise, Appleman on Insurance (Law Library Edition) (Lexis Nexis 2011).  In addition to editing the volume, Robinette will also be writing the introduction.   Volume 6 will focus on the topic of automobile insurance.  As new volumes of the New Appleman Library Edition are published, corresponding volumes of Appleman on Insurance 2d and Appleman Insurance Law and Practice will be retired.


December 14, 2010 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 23, 2010

The Oxford Introductions to U.S. Law: Torts

John C.P. Goldberg (Harvard) and Ben Zipursky (Fordham) are co-authors of The Oxford Introductions to U.S. Law: Torts:

Torts--personal injury law--is a fundamental yet controversial part of our legal system. The Oxford Introductions to U.S. Law: Torts provides a clear and comprehensive account of what tort law is, how it works, what it stands to accomplish, and why it is now much-disputed. Goldberg and Zipursky--two of the world's most prominent tort scholars--carefully analyze leading judicial decisions and prominent tort-related legislation, and place each event into its proper context. Topics covered include products liability, negligence, medical malpractice, intentional torts, defamation and privacy torts, punitive damages, and tort reform.

Harvard Law School has a video discussion with Professor Goldberg about the book.



November 23, 2010 in Science, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

"The Torts Scholarship of Richard Epstein"

The current issue of the Journal of Tort Law is now available.  The issue is a tribute to the torts scholarship of Richard Epstein.  With an introduction by editors Jules Coleman and John Goldberg, the issue features articles by Joshua Getzler, Jill Horwitz, and Benjamin Zipursky, and a comment by David Owen, as well as a reply by Professor Epstein that revisits and restates the hugely influential account of tort law that he has developed since the publication of his landmark 1973 article, A Theory of Strict Liability.

Thanks to John Goldberg for the info.





October 26, 2010 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, October 25, 2010

Paul Steven Miller

The New York Times reports that law professor and disability rights advocate Paul Steven Miller passed away at home last Tuesday.  The obituary there does a better job than I can at describing his many accomplishments, both within and outside the academy.

Professor Miller started teaching at the University of Washington at the same time I started teaching, as I recall, and we met at a new law teacher's seminar put on by AALS, I think.  We exchanged e-mails periodically talking about teaching Torts -- he was an innovative teacher, developing extensive wikis for his classes, among other things -- and about life as a law professor.  While he was certainly best-known for his work in the arena of disability law, he was an enthusiastic Torts prof and utterly dedicated to his teaching.  I was pleased when he took a position with the Obama administration, and even happier when he returned to teaching.  Getting a drink with Paul was something I looked forward to every year at AALS. 

Paul was 49 years old and is survived by his wife and two young daughters.


October 25, 2010 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Saturday, October 23, 2010

Introducing Guest Blogger James R. Hackney, Jr.


Monday's Guest Blogger is James R. Hackney, Jr., Professor of Law and Faculty Director of Research at Northeastern University School of Law, where he teaches in the areas of torts, corporate finance, corporations, critical race theory, and law and economics. 

Professor Hackney’s research focuses on intellectual history, torts, the mutual fund industry, law and economics, and critical race theory. He is the author of the acclaimed book, Under Cover of Science: American Legal-Economic Theory and the Quest for Objectivity (Duke University Press, 2007).   Selected publications include Book Review, “On Markets and Regulation: Richard Posner’s Conservative Pragmatist Evolution” (reviewing Richard Posner’s A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression), 3 Law and Financial Markets Review 539 (2009); “Duties of Fund Directors Under State Law,” Fund Governance: Legal Duties of Investment Company Directors. Robertson, ed. Law Journal Press, 2005; “Ideological Conflict, African American Reparations, Tort Causation and the Case for Social Welfare Transformation,” 84 Boston University Law Review 1193 (2004); “Law and Neoclassical Economics Theory: A Critical History of the Distribution/Efficiency Debate,” 32 Journal of Socio-Economics 361 (2003); “Law and Neoclassical Economics: Science, Politics and the Reconfiguration of American Tort Law Theory,” 15 Law and History Review 275 (1997); “The Intellectual Origins of American Strict Products Liability: A Case Study in American Pragmatic Instrumentalism,” 39 American Journal of Legal History 443 (1995); and “A Proposal for State Funding of Municipal Tort Liability,” 98 Yale Law Journal 389 (1988).

In 1997-98, Professor Hackney was a Visiting Professor of Law and John M. Olin Fellow at the University of Southern California.  He also has taught as a Visiting Professor at Boston University School of Law and Harvard Law School.  Professor Hackney has served on the Executive Committee for the AALS Torts & Compensation Systems Section, and was Co-Chair of the AALS Socio-Economics Section.   In 2003 & 2005, he was named Teacher of the Year.  Prior to joining the Northeastern faculty, Professor Hackney was an associate with the Los Angeles law firm of Irell & Manella.




October 23, 2010 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 20, 2010

Vanderbilt Announces Memorial Arrangements for Professor Nagareda

As we all continue to mourn the loss of Professor Richard Nagareda, who passed away unexpectedly on Friday, October 8, 2010, Vanderbilt has announced a memorial to be held November 12th at Vandy:

Vanderbilt Law School is hosting a celebration of Richard Nagareda's life on Friday, November 12, at 4:00 p.m. in the Flynn Auditorium, with a reception to follow. We invite you to join us.

Parking for visitors who want to attend the memorial will be available in Lot 5B, which is located directly across from the law school at the intersection of 21st Avenue and Broadway.

Alumni, friends and former colleagues are invited to honor Professor Nagareda by sharing your memories of him with us. You may send your tributes via email to for posting on a private web page set up for alumni and friends, or mail your tribute or a letter of condolence with a note indicating whether you’d like your tribute posted online or only forwarded to Richard’s family to us at:

Vanderbilt University Law School/Nagareda Memorials
Dean’s Office
131 21st Ave. South
Nashville, TN 37203

You may also honor Richard by donating to a memorial fund we have established at the family's request to support a student scholarship by clicking here by sending a check to us at the address above.

Vanderbilt also has provided a detailed obituary listing the many accomplishments of Professor Nagareda.


October 20, 2010 in Current Affairs, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Sunday, October 10, 2010

In Memoriam: Richard Nagareda (1963-2010)

I am very sorry to report the untimely death of one of the great minds in mass tort litigation, Richard Nagareda.   According to the Vanderbilt notice, Professor Nagareda died suddenly at his home on Friday October 8, 2010.   Vanderbilt released the following statement:

“Richard was a personal friend as well as an esteemed colleague, and those of us who were fortunate enough to know him and work with him for the past several years are devastated by his death,” Dean Chris Guthrie said. “The legal academy has lost a gifted scholar, and our students an extremely talented teacher. Our faculty members have lost a good friend and exemplary colleague, and his family a beloved husband, father and son."

We were lucky to have Professor Nagareda guest blog here at TortsProf last spring.  His guest blog piece explored "Developments in the Resolution of Mass Torts: The New Face of Client Consent."

H/T to Legal Ethics Forum and Leiter Law School Reports.


October 10, 2010 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Thursday, October 7, 2010

Introducing Guest Blogger Lester Brickman

Brickman (2) Monday’s Guest Blogger is Lester Brickman, Professor of Law and former Acting Dean at the Benjamin N. Cardozo School of Law, where he teaches contracts and legal ethics.  He has written extensively on legal ethics and his writings have been widely cited in treatises, casebooks, scholarly journals and judicial opinions. Among his areas of specialty are contingency fees and their effect on the tort system, mass tort litigation, asbestos litigation, regulation of attorney fees in the tobacco litigations, fee arbitration, and class actions.

 Professor Brickman is publishing a book on contingency fees due out in January 2011:  Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge Univ. Press).  The book is a broad and deep inquiry into how contingency fees distort our civil justice system, influence our political system and endanger democratic government.  While the public senses that lawyers manipulate the civil justice system to serve their own ends, few are aware of the high costs that come with contingency fees.   This book, which distills 20 years of Professor Brickman’s research, sets out to change that, providing a window into the seamy underworld of contingency fees that the bar and the courts not only tolerate but even protect and nurture.  Contrary to a broad academic consensus, the book argues that the financial incentives for lawyers to litigate are so inordinately high that they perversely impact our civil justice system and impose other unconscionable costs.  It thus presents the intellectual architecture that underpins all tort reform efforts.

Professor Brickman also has written extensively on asbestos litigation.  His articles and testimony before the Senate Judiciary Committee and a subcommittee of the House Judiciary Committee have been influential in directing attention to critical asbestos litigation abuses. He has been acknowledged by four federal courts as an expert on the history of asbestos litigation, asbestos bankruptcy trusts and the effect of tort reform on future asbestos claim generation. In early 2005, President George W. Bush introduced Professor Brickman to an audience in McComb County, Michigan, as an expert on asbestos litigation issues and asked Professor Brickman to explain the need for a legislative solution for asbestos litigation abuses.

Professor Brickman has been widely quoted in the press on lawyer fee issues as well as on tort reform issues. He has testified before Congress on the delivery of legal services, asbestos litigation, contingency fee abuses generally and in tobacco litigation and on the constitutionality of congressional regulation of fees in tobacco litigation.  He has served on the professional responsibility committees of the New York State and City bar associations and on the Professional and Judicial Ethics committee of the Association of the Bar of the City of New York.  Professor Brickman is a graduate of Carnegie-Mellon University, the University of Florida Law School and has a Masters in Law degree from the Yale Law School.


October 7, 2010 in Guest Blogger, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 15, 2010

Prof. Richard Cole

I am sad to report that TortsProf Richard Cole, of my institution (Western New England) passed away over the weekend.  Dick began teaching at the School of Law in 1976, and, over the years, taught Torts, Toxic Torts, and various other courses related to civil litigation.  A graduate of the University of Pennsylvania and the University of Michigan Law School, Dick also taught at Detroit College of Law and visited at Oxford.

I join Dean Gaudio, as do all of my colleagues, in grieving the loss of a colleague and friend.  Dick was a gentle, caring, and inquisitive professor and colleague, and he touched countless lives.


September 15, 2010 in TortsProfs | Permalink | Comments (1) | TrackBack (0)