TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, September 28, 2012

Bill Childs Update!

A shout out to our former co-blogger and blog founder, Bill Childs!   With great excitement, we received an email from our former co-blogger's new firm announcing his new position.  Bill is Senior Counsel at Bowman and Brooke in the firm's Austin, Texas office.  Bill is a part of the firm's pharma and medical device product liability litigation groups. 

Best wishes to Bill!



September 28, 2012 in Current Affairs, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Saturday, September 1, 2012

Goldberg is Appointed Eli Goldston Professor of Law at Harvard

Congratulations to TortsProf John Goldberg on his appointment as the Eli Goldston Professor of Law at Harvard Law School.  Harvard's website has the details.


September 1, 2012 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 10, 2012

Green & Powers Win John G. Fleming Memorial Prize for Torts Scholarship

Professors Michael D. Green (Wake Forest) and William C. Powers Jr. (Texas) have been announced as the 2012 co-winners of the John G. Fleming Memorial Prize for Torts Scholarship.  They will jointly deliver the second Fleming Lecture at Berkeley Law on November 5.   Professors Green and Powers are being honored for, among other things, their outstanding work as American Law Institute co-reporters for two core portions of the Restatement (Third) of Torts.

Berkeley Law Professor John Fleming was among the world’s leading comparative tort law scholars and long-time editor-in-chief of the American Journal of Comparative Law.  When he passed away in 1998, two books were published in his honor and proceeds were used to create the Fleming Prize, which is awarded every other year to a tort law scholar from any country.   The Fleming family later endowed the Fleming Lecture.  Bob Rabin (Stanford), the previous winner of the prize, delivered the first Fleming Lecture.

Professor Stephen Sugarman (Berkeley) can provide more details about this fall’s Fleming Lecture.  Congratulations!


July 10, 2012 in Conferences, Roundup, Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, May 21, 2012

Prosser Award Nominations--Second Call

Andy Klein, a member of the AALS Torts & Compensation Systems Section's Executive Committee, writes:

This is a "second call" for nominations for the 2013 William L. Prosser Award.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ."   Recent recipients are Richard Posner, Guido Calabresi, Oscar Gray, Dan Dobbs, and Robert Rabin.  Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.

As my previous announcement explained, any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting past nominations and materials.  Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee. The announcement of the award will be made at the annual AALS meeting in January, 2013.

Nominations, accompanied by a brief supporting statement, should be submitted no later than July 2, 2012.   E-mail submissions to are preferred.   If you would rather mail hard copies of nomination materials, please use the address in the signature line below.  If you prefer to mail the nominations, please send them to the address below. 

Let me know if you have any questions, and thanks.


Andrew R. Klein
Paul E. Beam Professor of Law
Indiana University Robert H. McKinney School of Law 
Chief of Staff
Office of the Chancellor 
IUPUI Campus
355 N. Lansing Street
Indianapolis, IN 46202 

May 21, 2012 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

AALS Torts & Compensation Section: Prosser Award Nominations; Solicitation of News

Andy Klein (Indiana-Indianapolis), the Secretary of the Section, posts the following:

Dear Colleagues,

Greetings!  In my capacity as secretary of the AALS Torts & Compensation Systems section, I am writing to pass along two important notices.

1. Torts and Compensation Section Newsletter

As most of you know, our section publishes a newsletter each fall listing: (1) Symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law.  We are now beginning the process of compiling material for this year’s newsletter.  If you know of anything that should be included, please forward relevant citations and other information to me at  The deadline for inclusion is August 15, 2012.  

2.  Prosser Award 

This is the first call for nominations for the 2013 William L. Prosser Award.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ... ."   Recent recipients are Richard Posner, Guido Calabresi, Oscar Gray, and Dan Dobbs.  Past recipients include scholars such as Leon Green, Wex Malone, and John Wade. 

Any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting materials.  Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2013.   

Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 2, 2012.   E-mail submissions to are preferred.   If you would rather mail hard copies of nomination materials, please use the address in the signature line below. 

Our committee will send additional reminders about both the newsletter and the Prosser Award as the deadlines approach.  In the meantime, feel free to contact me if you have any questions.



Andrew R. Klein

Indiana University Robert H. McKinney School of Law

(317) 274-2099

March 5, 2012 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Thursday, March 1, 2012

Mass Torts in the Federal Courts - Recap Part II

As I mentioned yesterday, kudos to the students of the Federal Courts Law Review here at the Charleston School of Law for the Mass Torts in the Federal Courts symposium last week. In addition to the keynote address by Ken Feinberg and remarks by Judge Corodemus, the day included three lively panel presentations.


Panel 1Panel One focused on Preemption. Moderated by my colleague, Bill Janssen, the panel featured (left to right) Jim Beck (Drug & Device Blog/Dechert), Deepak Gupta (Senior Counsel, Consumer Financial Protection Bureau), and Cathy Sharkey (NYU). Beck focused on the presumption against preemption and pointed out the Supreme Court's inconsistency on the doctrine. Beck termed the presumption a "judicial football," and noted that Justice Kennedy holds the "key vote" on the issue. Gupta provided a consumer protection viewpoint, and noted that agencies rely on the tort system to supplement and inform the agency's work. Sharkey pointed out the "absurdity" of the Court's rulings in Wyeth v. Levine and Pliva v. Mensing: If you take the generic version of a drug, preemption applies, but if you take the brand name version of the same drug, preemption does not apply. Sharkey advocated a new framework for the Court to view the preemption question focusing on agency consideration: whether the governing agency has paid particular attention to the risk of the plaintiff's injury should control the premption question.


Panel 2I moderated Panel Two on "Aggregation and Mass Torts." Sheila Birnbaum is speaking in the photo, while seated left to right are myself, Timothy Eble, Alexandra Lahav (Connecticut) and Linda Mullenix (Texas). Eble and Lahav focused on the current litigation system, while Mullenix and Birnbaum addressed the fund approach. Eble focused on settlement class actions and presented a case study involving a medical monitoring settlement class action. He argued that the settlement class is an appropriate use of Rule 23. Lahav discussed the tension between individualism and efficiency in the debate over how to adjudicate mass torts, and asserted that a third value was missing from this discussion: equality. Responding to Ken Feinberg, Mullenix argued that the fund approach is not "sui generis," but increasingly the chosen method for resolving mass torts. Her presentation focused on the voluntariness of a plaintiff's election of remedies under a fund system, and suggested three solutions to combat what she argued was uninformed consent. Her solutions included provision of pro bono counsel to fund claimants, bar association counseling of fund claimants, and judicial invalidation of fund award's based on lack of informed consent. Birnbaum agreed that we are "going to have lots and lots of funds." In response to Mullenix, Birnbaum pointed out that most of the 9/11 claimants had counsel and discussed her work with the 9/11 litigants as well as with the new 9/11 Fund claimants. Birnbaum asserted that the fund approach can provide "more justice" than litigation and criticized the expense and delay involved in the tort system.


Panel 5The final panel considered Ethical Issues Surrounding Fees and Settlements in Mass Torts. Nathan Crystal (Charleston) moderated the panel, with presentations by (left to right) Lynn Baker (Texas), Beth Burke (Richardson Patrick), John Beisner (Skadden), and Morris Ratner (Visting, Harvard/Professor-Elect, UC Hastings). Burke discussed aggregate settlements under Model Rule of Professional Responsibility 1.8, and the use of a point-based allocation system as opposed to a dollar-based system. Ratner addressed a new phenomena - trial courts relying on the ethical rules to impose caps on attorneys' fees in non-class settlements. He argued that the ethics rules do not provide the right guidance to fill this procedural gap, and further that incorporating the ethical rules in this fashion imposed a cost on the system. Beisner proposed that the ethics rules should be strengthened to better address conflicts of interest at the outset of mass tort litigation. In response to Ratner, Beisner suggested that courts felt a need to do something about fees that were perceived to be too high. Finally, Baker also considered the trend of judges imposing caps on fees in non-class actions, and asked whether the plaintiffs' attorney ethically may challenge the cap where the court sua sponte has now created a conflict of interest between the attorney and her client.

My thanks to all the participants for a wonderful conference.


March 1, 2012 in Conferences, MDLs and Class Actions, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2012

TortsProf Professors of the Year

Congratulations to these TortsProfs, who won "Professor of the Year" at their schools in 2011:

Kevin Brown (Indiana-Bloomington), Andy Klein (Indiana-Indianapolis), Christina Bohannan (Iowa), Mary Davis (Kentucky), Kyle Graham (Santa Clara), and John Watts (Texas Tech).  Did I miss anyone?

Also congratulations to Geoff Rapp (Toledo) on his new chair; he is the Harold A. Anderson Professor of Law and Values.


January 10, 2012 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 18, 2011

Judge Posner to Receive 2012 Prosser Award

From the AALS Torts and Compensation Section's Executive Committee: 

 The William Prosser award will be presented at our Section meeting on January 5, 2012 at 9-12 pm.  The Prosser Award was created and presented to its first recipient, Leon Green, in 1974. Later awardees included Fleming James Jr., Wex Malone, W. Page Keeton, John Wade and Willard Pedrick.  More recent honorees include Dan B. Dobbs, Guido Calabresi, Oscar Gray, and Robert Rabin.

 When Wex Malone bestowed the first Prosser award upon Leon Green, Malone remarked that the award “is designed to recognize a lifetime of truly outstanding contribution to the world of Torts.”

This year’s honoree – the Hon. Richard A. Posner, Judge on the United States Court of Appeals for the Seventh Circuit and Senior Lecturer in Law at the University of Chicago Law School-has authored academic works as well as judicial opinions that have reshaped the way we think and teach about tort law.   One nominator wrote that “Judge Posner returned Torts to its special position as one of the most exciting, intellectually challenging, and magnetic fields of study in all of the legal academy.” Judge Posner’s writings provide law teachers and scholars with an analytical framework to approach many tort law issues.   A nominator mentioned how Posner developed a grand theory of tort law beginning with his 1972 article, “A Theory of Negligence.” Judge Posner’s judicial opinions and academic writing have reshaped the way torts teacher teach and think about setting the standard of care.   
 First year law students learn the law and economics perspective on tort law through appellate cases authored by Judge Richard Posner.  A nominator described Judge Posner as having the “Holmesian gift of utilizing the sharp tools of a brilliant academic mind to craft insightful and eloquent judicial opinions.”
 The Executive Committee would like to extend our congratulations to our respected colleague whose doctrinal and theoretical work has been so influential.  We would also like to acknowledge his role as a mentor to younger torts scholars and teachers.

October 18, 2011 in Conferences, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Yalof Garfield on Texting, Tweeting and Slander

Leslie Yalof Garfield (Pace) has posted her recent article, The Death of Slander, on SSRN. The abstract provides:

Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone’s reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person- to-person communication. Texting, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise.

At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical reality that is no longer accurate. Originally, permanence and breadth of dissemination always coincided. Slander carried only as far as one's voice. Because of slander’s presumed evanescence, common law required plaintiffs to plead special damages - proof of economic harm in order to recover for slander the advent of broadcast technology, with its ability to amplify the spoken word challenged the traditional division of defamation and forced courts and legislatures to reconsider old classifications. Jurisdictions split in their decision to characterize broadcast speech as libel or slander, largely because of divergent views about which aspect of the speech - permanence or breadth of dissemination - was more important. Post-broadcast technology has further complicated the defamation arena leaving parties unsure of how to best plead their defamation case.

In the past decade technology has again changed the way we communicate. The digital communication revolution has created instances of wide-spread dissemination through quick, non-reflective and often passing statements. This past year for example, Wael Ghonim’s tweet to join him in an Egyptian village square lead to the downfall of Egypt’s political powers. His fleeting comments to those willing to listen caused an entire nation to fall. This article considers how courts should rule when these tweets, or texts, not quite printed, not quite spoken, are defamatory.

This Article argues that the advent of texting, tweeting and other forms of digital communication, which I call technospeech, renders the medieval tort of slander irrelevant in today’s technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation. Treating all defamation similarly promotes fairness for plaintiffs seeking to rehabilitate their damaged reputation and provides predictability to those bringing defamation claims. A thoughtful and orderly treatment of technospeech mandates that courts and legislatures put the proverbial final nail in the coffin of slander.

As I noted at Faculty Lounge, twitter-libel suits are fairly common these days.



August 29, 2011 in Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 23, 2011

Goldberg's Book for 1Ls

TortsProf John Goldberg and Barry Friedman have written a primer on succeeding in the first year of law school.  Entitled Open Book:  Succeeding on Exams from the First Day of Law School, it is available here.

Here are the reviews and description:


This is a book that will help law students get law school, not just law school exams. It really captures what it means to think like a lawyer. --Amy Coney Barrett, Professor, Notre Dame Law School

I would definitely recommend this book. It gives great advice to students who have no idea what to expect when they take their first law school exams. --Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law

No book is a guarantor of better results, but this one would certainly help the majority of students to add points to their exam results, and some students could literally turn their performances around by following the advice of this book. --Michael D. Murray, Associate Professor, Valparaiso University School of Law

Product Description

A concise, highly accessible guide to exam success. Provides an insider s view of what professors look for in exam answers, and how exam-taking connects to good lawyering. Accompanied by a Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).  


  • High-profile, experienced authors from elite schools with hands-on experience teaching the majority of the courses in the traditional 1L curriculum
  • Distinctive central pedagogy: the pinball method of exam-taking
  • Accompanied by Web site with content that is both free (e.g., sample outlines, class notes, case briefs) and for-sale (e.g., sample exams and memos written by professors giving feedback on the answers).
  • Explains to students not just the how but the why of law school exams what makes law school exams different from exams students have encountered in other settings
  • Detailed examples provide concrete demonstrations of exam-taking techniques
  • Highly readable: prose is straightforward and humorous; key points accented with memorably amusing illustrations Not just an exam prep book; students are offered guidance on getting the most out of classes, and law school more generally.

I've glanced through the book, and it looks great.


August 23, 2011 in Books, Teaching Torts, TortsProfs | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Torts Visitors - Needs & News

Dan Filler at Faculty Lounge reports that Duquesne Law School in Pittsburgh is seeking a Torts Visitor for the 2011-2012 academic year.

Separately, Brian Leiter's annual report on professors visiting at the top six law schools includes several notable torts profs.   Martha Chamallas (Ohio State), Keith Hylton (Boston University), Charles Silver (Texas), and Michael Trebilcock (Toronto) will be visiting at Harvard.  Alexandra Lahav (Connecticut) and Tony Sebok (Cardozo) will be visiting at Columbia.  Robert Rabin (Stanford) will be visiting at NYU.  Albert Yoon (Toronto) and Ariel Porat (Tel Aviv) will be visiting at Chicago.




June 28, 2011 in TortsProfs | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 25, 2011

Nominations for the 2012 Prosser Award

The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award for 2012.  The award "recognize[s] outstanding contributions of law teachers in scholarship, teaching and service in ... torts and compensation systems ...."   The three most recent distinguished recipients are Honorable Guido Calabresi, Oscar Gray, and Dan Dobbs.  Past recipients also include luminaries such as Leon Green, Wex Malone, and John Wade.

Any law professor is eligible to nominate another law professor for the award.  Nominators can renew past nominations by resubmitting past nominations in a timely manner.  Selection of the recipient will be made by members of the Executive Committee of the Torts and Compensation Systems Section, based on the recommendation of a special selection committee.  The announcement of the award will be made at the annual AALS meeting in January, 2012.   

Nominations, accompanied by a brief supporting statement (required), should be submitted to Prof. Jennifer Wriggins, Secretary, AALS Torts and Compensation Section, either by regular mail or e-mail at  Nominations must be received no later than 5 pm eastern time (U.S.) on Tuesday, July 5, 2011.  E-mail submissions at are preferred.   If you prefer to mail the nominations, please send them to the address below:

Prof. Jennifer Wriggins

Sumner T. Bernstein Professor of Law

University of Maine School of Law

246 Deering Avenue

Portland, ME 04102


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

Monday, May 23, 2011

Professor of the Year

Congratulations to TortsProf's own Chris Robinette, who was voted "Professor of the Year" by the Class of 2011 at yesterday's commencement at Widener Harrisburg.  Having observed Chris's teaching when we both were at Temple together, I can attest to his skill and dedication in the classroom.   It is a well deserved honor. 


May 23, 2011 in TortsProfs | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 3, 2011

New Book - "European Tort Law: Basic Texts"

European tort law

Ken Oliphant (Director, Institute for European Tort Law) is co-editor of a new book - European Tort Law: Basic Texts.  From the publisher:

This unique collection makes available, for the first time in a single volume, English versions of basic tort law texts from 27 national systems in Europe. It includes key provisions of national civil codes and other important legislative enactments, as well as extracts from leading cases. Additional chapters deal with EU Law (EU Tort Law and EU Conflict of Laws) and the European harmonisation projects (the Principles of European Tort Law and the Draft Common Frame of Reference).

The book was launched on the occasion of last week’s 10th Annual Conference on European Tort Law in Vienna, and is dedicated to the conference’s founder, Helmut Koziol.




May 3, 2011 in Books, Scholarship, TortsProfs | Permalink | Comments (0) | TrackBack (0)

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)