TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, September 30, 2009

Monday's Guest Blogger: Frank Vandall


Frank J. Vandall is Professor of Law at Emory University, where he has been on faculty since 1970.  He received a B.A. from Washington and Jefferson College in 1964 and a J.D. from Vanderbilt University in 1967.  Professor Vandall also holds an LL.M. (1968) and S.J.D. (1979) from the University of Wisconsin.

Professor Vandall is the author of a first-year casebook, Torts, Cases, Problems and Questions, which was published in early 1997; a products and liability casebook, Products Liability Cases, Materials, Problems (1994); "Our Product Liability System: An Efficient Solution to a Complex Problem," Denver Law Review; a theoretical tort book for lawyers and business people, Strict Liability: Legal and Economic Analysis; and Police Training for Tough Calls: Discretionary Situations. His articles include "Suits by Public Hospitals to Recover Expenditures for the Treatment of Disease, Injury and Disability Caused by Tobacco and Alcohol," Fordham Urban Law Review (1994); "Reallocating the Costs of Smoking: The Application of Absolute Liability to Cigarette Manufacturers," Ohio State Law Journal; "Criminal Prosecution of Corporations for Defective Products," International Legal Practitioner; "Judge Posner's Negligence-Efficiency Theory: A Critique," Emory Law Journal; "A Critique of the Proposed Restatement, Third Products Liability, Section 2(b): The Reasonable Alternative Design Requirement," Tennessee Law Review (1994); "The Restatement, Third Products Liability, Section 2(b): Design Defect," Temple Law Review (1995); and "Constructing a Roof Before the Foundation is Prepared: The Restatement (Third) of Torts, Product Liability: Section 2(b) Design Defect," Michigan Journal of Law Reform (1997).

Professor Vandall teaches first-year torts and advanced courses in products liability and torts. He has served as scholar-in-residence at the Institute of Advanced Legal Studies at the London School of Economics. Professor Vandall was the Roger Traynor Research Professor at the University of California, Hastings College of Law during 1993.


September 30, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Cupp on Preemption

Richard Cupp (Pepperdine) has posted to SSRN Preemption's Rise (and Bit of a Fall) as Products Liability Reform:  Wyeth, Riegel, Altria, and the Restatement (Third)'s Prescription Product Design Defect Standard.  Here is the abstract:

This Article is Professor Cupp's most recent contribution to the discussion of the Restatement (Third) of Torts and its standard for prescription product design defect claims, especially in light of the rising strength of the preemption doctrine and the recent Supreme Court cases of Riegel v. Medtronic and Wyeth v. Levine. Under the Restatement (Third)'s standard, outlined in section 6(c), a prescription product manufacturer may not be held liable in a prescription product design defect case unless no reasonable health care provider would have prescribed the product to any class of persons.

The Article begins by fleshing out section 6(c)'s standard of prescription product design defect liability and explaining why, in Professor Cupp's view, it is a "near-immunity" standard. The Article also briefly addresses the limited number of cases that cite the standard itself, explaining why many courts and commentators appear to not be in favor of it. Then, the Article discusses important recent Supreme Court preemption litigation. This discussion starts with the 1992 case of Cipollone v. Liggett Group, Inc., which was decided around the time formal work on the Restatement (Third) began, followed by three recent cases: Riegel, Wyeth, and Altria Group, Inc. v. Good. The Article then analyzes the Food and Drug Administration (FDA)'s shifting position on whether FDA approval should create preemption, which came to light during the most recent Bush administration. The Article continues by discussing whether section 6(c) reflected the mood of the courts in assessing prescription product design liability at the time of its drafting. This mood, as illustrated in the 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, reflected the tendency to favor restricting liability in prescription product design liability cases by employing an increasingly aggressive use of preemption analysis. In conclusion, the Article suggests that recent preemption decisions may parallel the Restatement (Third)'s disdain for prescription product design liability but acceptance of prescription product warning liability.


September 30, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

"Hold Your Wee for a Wii" Trial in Progress

I don't expect to do regular updates, but today's update might be an interesting basis for discussions of knowledge and foreseeability.


September 30, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

Cheng & Yoon on "Predicting the Constitutionality of Punitive Damages"

Edward Cheng (Brooklyn) and Albert Yoon (Toronto) have posted their recent article, "Predicting the Constitutionality of Punitive Damages:  A Statistical Approach."  The abstract provides:

The constitutional doctrine governing punitive damages captivates legal scholars and jurists in part because it is both complex and evolving. The unpredictability, however, presents difficulties for attorneys and their clients, who need greater certainty to make practical decisions about litigation and settlement. In this Essay, we offer a statistical approach for predicting court decisions on the constitutionality of punitives. As it turns out, basic logisitic regression methods with appropriate model selection can be quite effective, although we make further gains using a Bayesian hierarchical approach. Using a new dataset of cases challenging punitive damage constitutionality from 1989 to 2008, our hierarchical model can predict out-of-sample outcomes with 76-85 percent accuracy. These results suggest that while constitutionality may not be subject to a deterministic formula, it can be effectively modeled statistically. Beyond the punitive damages context, our work additionally offers a glimpse of the potential of statistical models for predicting a wide variety of legal questions.


September 29, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Some Data Points On Coffee

Last week's guest post from Michael Rustad discussed (among other things) the infamous Liebeck v. McDonald's case, triggering a response from Ted Frank (in the comments) and an additional post from Rustad.

I start my Torts class with asking students what they think of when they think of "Torts."  Invariably, the Liebeck case comes up, along with some of the various understandings of the case that are out there.  One of the points of the discussion is both that case's centrality to many torts discussions, and the variety of "facts" that exist about it.

This year, I decided to ask students to use a food thermometer I have to compare the temperatures of coffee and other hot drinks as served in the Springfield area.  I have not calibrated the thermometer (a CDN home food thermometer, chosen, if memory serves, because of a recommendation in Cooks Illustrated), though it has in the past come up with temperatures very similar to those of other food thermometers in my house. Nor is this a blinded experiment or anything along those lines.  I mostly wanted to see what variety there might be in temperatures.

The instructions I gave:

1.  Purchase an ordinary coffee.  If you are getting anything other than coffee (i.e., tea, latte, etc.) note that in your post.

2.  Before adding cream or any other product, and as soon as possible after the beverage being handed to you, check the temperature of the drink.  To do so, turn on the thermometer ("On/Off" switch), wait for it to show the air temperature, and then put the metal probe into the drink (put it essentially all the way in, without the plastic part going into the drink).  Once the temperature listed stabilizes, note the temperature (in Fahrenheit).  Then clean off the thermometer probe thoroughly.  Do not immerse the plastic part of the thermometer.

3.  In this [TWEN] forum, post the location where you got the beverage, the date, the time, and the temperature.  Additionally, if the beverage is anything other than coffee, note that.

4.  Repeats are fine -- i.e., it is fine for multiple people to report the temperature of the Court Cafe's coffee.  (I know from personal experience that it varies fairly dramatically.)

5.  Home-brewed coffee is also fine.


The thermometer is still making its rounds through the class, but here's what we've seen so far:

  • I got coffee from the law school court cafe just before class today (approximately 1:00 pm).  It was the house blend from one of the insulated containers.  I don't know how long it had been in there.  The thermometer indicated that it was 167.9 degrees.
  • I just purchased today (9/3) a small coffee from the Dunkin Donuts across from campus at approx 9:15 am.  The temperature of this coffee was 174.3 degrees.  As I was driving to campus I was also testing this partiuclar drink and some did spill on my hand.  It was hot and it did hurt, but no burn was evident.

  • September 4 at 8:00 a.m:  Today I measured the temperature of my home brewed coffee. It was dunken donuts coffee made in an older model of a krups coffee pot. The coffee measured 160.3 F.  I observed this was optimal temperature because I was going to drink it immediately. However, if I put it down for a little while it cools would not be ideal temp if I was traveling with the coffee starting at this temp.
  • This morning, September 8th at 6:45am. I boiled water for tea using a stainless steel kettle on an electric stove. When the kettle whistled I poured the water over the tea and waited approximately 2 minutes before testing the water (tea bag still immersed). 171.6*F, I will not drink it probably for about 5-10 minutes though to allow it to cool down.
  • Wednesday, September 9th, 7:40am: I purchased Starbucks Coffee, Mild Blend out of one of the insulated thermoses in the [law school] cafe downstairs [a/k/a the Court Cafe]. The temperature read at 179.4 degrees.
  • September 9th, 3:30pm - I bought a coffee from a McDonalds on Allen Street in Springfield.  The temperature was 159.1 F.

  • September 11, 2009, 8:30 am...I bought a coffee at the main cafeteria in the Germain Campus center (The Rock Cafe Food Court)...It is advertised as "New England Coffee", I chose the Breakfast blend.  Last time I bought coffee there I burned my mouth on it, so I was interested to see how hot it was...It was 171.4...which I was kind of disappointed it wasn't higher...but I still think that this is too hot to serve in flimsy paper cups with no covers!

  • Saturday Sept. 12th: purchased regular coffee from Starbucks at the mall in Holyoke. 166.6F
  • On 9/20/09 at  4:30pm I purchased a coffee from Starbucks in Northampton, MA.  The temperature was 173.4 degrees.

Again, the thermometer has not been calibrated, but I believe from experience cooking with it that it is fairly accurate.  So far, the highest temperature has been just shy of 180, and the lowest has been just over 159 -- from a McDonald's.

More updates to come.  And if any other Torts professors are so inclined, perhaps we could build up a wider range of data on coffee temperatures.


September 29, 2009 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (6) | TrackBack (0)

Monday, September 28, 2009

Guest Blogger Jonathan Cardi: "Does Tort Law Really Deter?"

Last Spring, I participated in a conference at Wake Forest on the Restatement (Third) of Torts.  As is usually the case when a group of law professors get together, a number of panelists spoke about whether this or that Restatement provision is economically efficient.  This reminded me of a question that I have pondered since law school but never researched—what empirical evidence is there that the existence of common-law tort decisions in fact deters future tortious conduct?  I posed this question to a couple of the law and economists attending the conference.  After thinking about it for a while, they knew of no such evidence, and one admitted that he was a little embarrassed never even to have considered the question. 

Now that I have surveyed the existing literature, I am not surprised by the answers I received—and the professor should not have felt embarrassed.  Very little study of the question exists.  Law and economics has dominated discussion of tort law for nearly four decades.  Virtually every piece of L&E literature relies on the assumption that tort rules and decisions are at least capable of deterring future conduct.  Moreover, as Professor Hylton suggested in his blog, judges too find the proposition “noncontroversial, even obvious.”  And yet the basic premise is grossly under-tested.

A number of scholars have attempted to answer the question with regard to specific areas of tort law—the effects of no-fault auto insurance rules, workers’ compensation schemes, and medical malpractice reforms have served as the most common subjects.  There have also been at least three efforts—by Gary Schwartz; Don Dewees, David Duff, & Michael Trebilcock; and Michael Smith—to aggregate evidence of deterrence to get a look at the bigger picture.  Results are mixed.  No study has found that tort law serves as a comprehensive deterrent as Landes, Posner, and Shavell, for example, have proposed.  Some have found limited evidence that tort acts as a weak deterrent with respect to certain behaviors.  Still others have found no evidence of deterrence and even, in a few cases, a negative association—that certain tort rules actually lead to an increase in injuries.

In one respect, it is not surprising that there exists so little study of tort law’s deterrent effects.  Empirical investigation of the question poses significant challenges.  Obtaining data measuring individuals’ risky behavior is difficult; the number of variables affecting behavior levels is potentially overwhelming; and the rules governing common-law tort liability do not generally vary much among American jurisdictions (providing limited opportunities for comparison).

Continue reading

September 28, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Mike Rustad Responds to Ted Frank

Mr. Frank takes issue with my statement that McDonald's coffee was "superheated" in my recent guest post here on TortsProf.    He writes that other coffee vendors also sold their coffee at 190 degrees.  He also states that some home brewed coffee is brewed at that temperature. 
Home-brewed coffee is generally brewed at 130 to 140 degrees according to trial testimony in the McDonald's case.  The plaintiff's experts testified that, as the temperature of coffee decreases to 155 degrees and below, the risk of serious burns goes down exponentially.  Liebeck v. Mcdonald's Restaurant, Inc., Case No. CV-93-02419, Nat'l Jury Verdict (Aug. 1994) (available on LEXIS/NEXIS).  In addition, "[t]he plaintiff's attorney offered evidence that at the time of the subject accident, McDonald's sold its coffee at 180 - 190 degrees Fahrenheit by corporate specification.  The plaintiff offered expert testimony that at this temperature, if spilled, coffee causes full thickness burns (third degree burns to the muscle/fatty tissue layer) in two to seven seconds."  Id.  Mrs. Liebeck suffered third degree burns that required skin grafting, painful debridement and disfigurement.  The verdict report in the case stated: "The plaintiff's experts testified that for every degree centigrade above 140 degrees Fahrenheit, human skin burns twice as fast. . . The defendants admitted that the company had not studied the time and temperature at which consumers would be subjected to third degree burns in the event coffee is spilled onto their bodies."  Id.  I think it is fair to say that the coffee was superheated.   A jury could have found that McDonald's coffee was marketed with excessive preventable dangers to the consuming public. 
The fact that other vendors sold coffee brewed at a scalding temperature does not immunize the vendor from liability.  In the famous Ford Pinto case, the placement of the fuel tank and fuel-integrity problems were widespread in the industry.  A custom is not necessarily controlling when it comes to tort liability.  In the T.J. Hooper case, Judge Learned Hand notes that in most cases "reasonable prudence is in fact common prudence."  However,  Judge Hand reminds us that  "a whole calling may have unduly lagged in the adoption of new and available devices."  The T.J. Hooper , 60 F.2d 737, 739-40 (2d Cir. 1932).  The custom of serving coffee at 190 degrees is not controlling.  Custom is the floor but not necessarily the ceiling of due care when it comes to coffee as well as other products. 
When I teach and write about the McDonald's hot coffee case, I present both sides of the issue.  Learning how to see a case from both the plaintiff's perspective and the defense perspective is a critically important lawyering skill.  I point out that reasonable fact finders can come to different conclusions after considering the same record.  In the class discussion as well as our casebook, I ask whether the punitive damages award against McDonald's will 'overly deter' socially beneficial activities.  I present the defense view that McDonald's sold 2.5 billion cups of McDonald's coffee against approximately 700 reported injuries as well as the counter-point that reported injuries may underestimate the risk of unreported injuries or "near misses."  In my class discussion, I often cite Holowaty v. McDonald's Corp., 10 F. Supp.2d 1078 (D. Minn. 1998), where the court found no design defect SINCE McDonald's coffee was maintained at a temperature standard in the industry.  This was an instance where the court treated custom as conclusive as for the existence of a defect.   In the Minnesota hot coffee case, the court found the restaurant chain had no duty to warn the consumer since the plaintiff was aware of the risk of hot coffee. 
The point of my guest post was to advocate using multiple perspectives, including the plaintiff and the defense views, of the McDonald's hot coffee case.  The hot coffee case was widely portrayed by tort reformers as a poster child for tort reform.  My teaching point is that there are multiple perspectives and tort lessons to teach from this famous tort story.
- Michael L. Rustad
Hugh C. Culverhouse Visiting Chair
Stetson University College of Law
After 2009-2010

Thomas F. Lambert Jr. Professor of Law

& Co-Director of Intellectual Property Law Program.

Suffolk University Law School

September 28, 2009 in Guest Blogger, Teaching Torts | Permalink | Comments (6) | TrackBack (0)

Saturday, September 26, 2009

Ted Eisenberg vs. U.S. Chamber of Commerce

As Chris previously reported, a new article by Ted Eisenberg (Cornell)  takes on the Chamber of Commerce's annual "state liability ranking study," which ranks the lawsuit climate in all fifty states. In an interview with the WSJ Law Blog, the Chamber responds and defends its survey methods.


September 26, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, September 25, 2009

Personal Injury Roundup No. 51 (9/25/09)

Here's what happened during the first week of fall in the world of torts:

Reform, Legislation, Policy

  • Senate Finance Committee marked-up its health care reform bill.  (FDA Law Blog
  • Congressional Research Service issues report on health care reform. (Open CRS)
  • "Should Liability Damages Caps Be A Part of Health Reform?" (TortsProf)

New Lawsuits

  • Coyote Ugly Saloon patron slips while dancing on top of bar and sues.  (Day on Torts)
  • Eric Dane (McSteamy to Gray's Anatomy fans) sued for maliciously posting a video of Dane and two female friends in the buff.  (E! Online)

Trials, Settlements and Other Ends


  • United States Court of Appeals for the Second Circuit allows suit against six power companies on the grounds that their greenhouse gas emissions constituted a public nuisance. (Warming Law, Warming Law Part I and Warming Law Part II, Point of Law, NY Law Journal/
  • Interlocutory appeal to the United States Court of Appeals for the Third Circuit will address viability of medical monitoring claim under Delaware law.  (Mass Torts Defense)
  • Georgia Court of Appeals addresses whether there’s a common-law duty to recall a product that's being legally sold.  (Drug & Device)
  • New York appellate court affirms dismissal of foul ball case.  (Hochfelder)


  • South Carolina Supreme Court uses potential harm to uphold punitive damages award 67 times larger than actual damages.  (Cal Punitive Damages)
  • California jury awards $49 million in compensatory damages in car accident case.  (The Recorder/



September 25, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 23, 2009

Monday's Guest Blogger: Jonathan Cardi


Jonathan Cardi is the Dorothy Salmon Professor of Law at the University of Kentucky, where he teaches in the areas of Copyright, Torts, Jurisprudence, and Remedies. Professor Cardi’s primary research interests are in tort law, most recently the nature and source of the duty concept. Recently, the Supreme Court of Arizona relied upon one of Cardi's articles in revising the state's duty analysis. Professor Cardi graduated Coif from the University of Iowa College of Law in 1998 and served as Senior Articles Editor for the Iowa Law Review. He was awarded his A.B. in English from Harvard University in 1991.

Prior to teaching, Professor Cardi was an associate at the Washington, D.C. law firm of Arnold & Porter, where he worked on a variety of litigation, copyright, and legislative matters from 1999-2002. Professor Cardi also clerked for the Honorable Alan E. Norris, of the United States Federal Court of Appeals for the Sixth Circuit, in Columbus, Ohio. Professor Cardi is a member of the American Law Institute and is the President of the Southeastern Association of Law Schools.


September 23, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

More Torts and Pop Culture

Torts aficionados should be proud.  Our subject has been used to prove the bona fides of a lawyer in the movie "Rachel Getting Married," a powerful, disturbing movie about family dynamics and the consequences of actions.  It features Anne Hathaway in a terrific, have-to-take-her-seriously-now role as a recovering drug addict haunted by the death of her little brother.  The torts moment occurs when Anne's character is told that the best man in her sister's wedding used to practice law.  She is dubious, and asks him to "say something legal" to her.  His one-word reply is "tort."


September 23, 2009 in Film | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 22, 2009

Hersch & Viscusi on "Saving Lives through Punitive Damages"

Joni Hersch & Kip Viscusi (Vanderbilt) have posted to SSRN Saving Lives through Punitive Damages.  Here is the abstract:

This article proposes that the value of statistical life be used to set the total damages amount needed for deterrence when punitive damages are warranted in wrongful death cases. The appropriate level of damages should be achieved by adjusting the value of punitive damages. Compensatory damages should not be distorted to establish the total damages level needed for efficient deterrence. Attempts to introduce hedonic damages as a compensatory damages component and proposals to use the value of statistical life on a routine basis when setting compensatory damages awards are misguided and will undermine the insurance and compensation function of compensatory damages. The U.S. Supreme Court’s focus on punitive damages ratios is misplaced, as it is the total damages amount, not the ratio, that is instrumental. The criteria for evaluating punitive damages in bodily injury cases should be different than for property damages cases. The composition of compensatory damages is especially important for bodily injury cases. Empirical analysis of current state court awards in bodily injury cases shows the desired positive relationship between punitive damages awards and the nonpecuniary loss.


September 22, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

"Pro & Con: Should Liability Damages Caps Be A Part of Health Reform?"

The Atlanta Journal-Constitution has a debate on whether liability damages caps should be a part of health reform.   Randolph W. Page of the Heritage Foundation takes the "pro" side, while C. Andrew Childers of Childers & Schlueter takes to "con" side.


September 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Wyeth v. Levine Post-Script

Pharmalittle brings news of an interesting post-script to the Supreme Court's decision in Wyeth v. Levine (pdf) last March.  In Wyeth, Diana Levine won a $7.4 million damages award against Wyeth after losing her arm to gangrene from an improper injection of the drug promethazine.  Levine contended that Wyeth failed to adequately warn of the risks of using an IV-push method of administering the drug.  The Supreme Court rejected Wyeth's implied preemption arguments and upheld the award. 

Now, in a ruling issued last week, the FDA is requiring a "black box" warning that "due to the risks of intravenous injection, the preferred route of administration is deep muscular injection and that subcutaneious injection is contraindicated."   The FDA news release explains:

Promethazine should neither be administered into an artery nor administered under the skin because of the risk of severe tissue injury, including gangrene, the boxed warning says. There is also a risk that the drug can leach out from the vein during intravenous administration and cause serious damage to the surrounding tissue. As a result of these risks, the preferred route of administration is injecting the drug deep into the muscle.


September 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, September 21, 2009

Guest Blogger Mike Rustad on "Unstuffing the Dog: Training Better Attorneys by Introducing Real-World Concerns in the Teaching of Torts"

Value-neutrality was a term coined by Max Weber, a founding father of sociology.  Weber contended that sociologists should be apolitical, objective, and avoid injecting ideological assumptions into their teaching as well as their research. Weber’s preference has gained widespread acceptance in the academy community.  One would think that Max Weber’s approach to research and teaching would compliment a scientific approach.  In other words, a scientist makes evaluation only after testing hypotheses.  Max Weber’s approach, which reminds one of the highest ideal of a scientific method, is a laudable goal for legal educators to embrace. 


It is not surprising that Christopher Columbus Langdell, the founding father of the case method in law teaching, capitalized on the contemporary scientific methodology.  But, in reality he distorted the scientific approach by using the deductive rather than the inductive method of collecting and classifying cases.  Langdell’s casebook assembled appellate opinions devoid of values and context.  His approach was ideological, rather than value-free, because of its overemphasis on judicial opinions as opposed to looking at the broader picture including values, public concerns, and sociological factors such as race, gender, and class.  In effect, Langdell created a legal pedagogy that was one-sided or ideological in nature and it continues in the modern law school classroom.   While we may all agree that appellate opinions are important, courts always decide cases within a larger political or sociological context.  The narrowness of conventional case analysis strangely overemphasizes rules of law over empirical facts.


In an intentional infliction of emotional distress case, for example, the plaintiff’s race or age is highly relevant to the question of whether the defendant’s actions were outrageous.   Race is relevant to whether an employer who targets an employee with racial epithets.   Race, gender, and class often are relevant in judicial opinion, but seldom mentioned in the text of an appellate case.   Similarly, gender is often important in understanding awards for non-economic damages or pain and suffering.   Reproductive injuries, for example, disproportionately impact women.  Caps on non-economic damages, for example, will impact women more than men in nursing home cases because of women's greater longevity.    In any respect, it is a laudable goal to approach a subject scientifically.  Science advances through replication and verification of research hypotheses.  However, the scientific approach in tort law should also test hypotheses about the impact of class, race, gender, and other contextual variables in judicial decision-making not just the judge’s words.


Langdell and his followers adopted the case law method, which distorts the inductive goals of science.   Langdell created an ideology of his own that has ruled American legal education ever since.     It is ideological to exclusively focus on appellate opinions without considering context and values.    Roscoe Pound once compared the exclusive focus of American legal education on appellate opinions to a school of veterinary medicine concentrating on stuffed dogs versus the real thing.  Teachers only using appellate cases “are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs." Jerome Frank, Why Not A Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 912 (1933).


The goal of the scientific approach in tort law is to test ideas rigorously and communally by considering diverse public policies and values   Classical liberalism, à la John Stuart Mills that brings all arguments to the table for a complete discussion, advances the scientific approach by engendering creative and critical thinking.


In the United States, the liberal bent of most tort casebooks is more parochial than John Stuart Mill’s approach.   In order to attempt to teach in a value-free manner, one must expose the students to a wide range of approaches.  A combination of creative and critical thinking with knowledge of different schools of thought makes for a better practicing attorney.   In the course of attempting to teach in a neutral fashion, it is more than acceptance to acknowledge that you have your own preferences based upon your research.  Nevertheless, you want to be consistent about familiarizing the students with other schools of thought and other approaches even from other disciplines.  Nearly fifty years ago, Leon Green described the deadly clutch of funneling tort law through a single doctrinal perspective:  “This does not call, however, for the flight from doctrine to the heaven of policy making.”  Tort Law:  Public Law in Disguise, 38 Tex. L. Rev. 257, 269 (1960).  In other words, the tort teacher needs not abandon judicial opinions but they do not need to weigh conflicting policies.   William Prosser introduced the 1964 edition of his famous treatise by describing tort law as a “battleground of social theory.”   The battleground of competing camps challenges the comfort zone of conventional tort teaching.  Today tort teachers are “assaulted from any number of directions by antagonistic perspectives?”  (Robert Rabin, Law for Law’s Sake, 105 Yale L. J. 2261, 2261 (1996)).   Rather than retreat to the deadly clutch of doctrinalism, teachers should use contemporary debates to explain the path of tort law.


Keith Hylton’s recent guest appearance on this blog asks whether tort law is economically efficient.   Key law and economics concepts such as opportunity costs, prices, incentives, efficiency, and externalities are value-laden.   The minimization of accident costs advance a societal interest in efficiency or the economic welfare of society.   Keith describes teaching judges at the Brooking Institute and how they accepted the “efficiency perspective” when he presented it to them.  He found this receptiveness surprising given that there is little empirical evidence demonstrating the efficiency of tort law.   Keith does more than funnel ideas and materials through an economic prism, but also calls for empirical studies to verify the efficiency hypothesis.   His call for more data is consistent with the Weberian tradition.  Keith’s approach enriches his student’s education and training.


As John Goldberg has noted, tort law is now fractured into competing camps:  “compensation-deterrence theory, enterprise liability theory, economic deterrence theory, social justice, and individual justice."  A student being prepared for law practice is ill-served by not explaining competing public policy concerns underlying tort decisions.   Jamie Boyle’s articleon teaching first year torts describes the limits of the doctrinal approach: “The first thing that I discovered as a teacher was that, not only did abstract rules fail to decide concrete cases, abstract knowledge failed to provide good teaching….I came to believe that not only is this exclusion unjustifiable, it is actually politically slanted—it denies us access and place in which most of the implicit messages about professional culture, legal ideology, and technical skills are really being transmitted.”  Presenting and weighing alternative perspectives to values implicit in court decisions can help students develop critical lawyering skills.  Anita Bernstein contends that competing perspectives such as law and economics, feminist theory, statistics, sociology and political theory are tools to help law students become better lawyers.  Critical race and feminist theory can help students see race, class, or gender implications in tort doctrine.  (See Katz & O'Neill, Strategies and Techniques of Law School Teaching).   While law students needs to grasp the black letter law, the modern practitioner need to master competing perspectives to be prepared.


Continue reading

September 21, 2009 in Guest Blogger, Teaching Torts | Permalink | Comments (2) | TrackBack (0)

Saturday, September 19, 2009

White House Announces Grants For "New Medical Liability Models"

Following up on Tony Sebok's post yesterday, we now have some more details on President Obama's "demonstration projects" on tort reform.  Specifically, Secretary of Health and Human Services Kathleen Sebelius announced $25 million in grants for states "to try out new patient safety and medical liability models." 

Grants are going to be available for the development, implementation, and evaluation of models that do four things:  put patient safety first and work to reduce preventable injuries; foster better communication between doctors and their patients; ensure that patients are compensated in a fair and timely manner for medical injuries, while reducing the incidence of frivolous lawsuits; and finally, reduce liability premiums.

. . . .

Within 30 days, we'll post an official funding opportunity announcement on  After that, potential grantees will have 60 days to apply for two different kinds of grants -- one-year planning grants of up to $300,000 that will help states and localities and health systems develop and conceptualize new patient safety and medical liability models; and demonstration grants for up to three years and $3 million that will help implementation of projects that are ready to go.

ABA Journal and Point of Law have more.


September 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, September 18, 2009

Guest Blogger Tony Sebok on Health Insurance Reform and Tort Reform - Part II

As promised, I want to explore the debate over tort reform from a systematic perspective.  The President’s embrace of tort reform in medical malpractice—tepid as it may be—shows that the issue has moved to the mainstream. 


The significance of the President’s endorsement of “demonstration projects in individual states” that had been first proposed during the Bush Administration is not because the proposals are so radical.  In fact, if all the President intends to support are, for example, pilot projects establishing some “health courts” in a limited number of states, it is not clear why these reforms could not have been adopted by individual states without any help from the federal government.  (Kaiser Permanente has already secured a much more radical reform simply by forcing all of its insured to waive the right to sue and to agree to binding arbitration).


The significance is rhetorical, and in politics, rhetoric counts for a lot.  The first Democratic president who was willing to entertain tort reform on a national level was Bill Clinton.  His administration championed a Y2K immunity bill that would have limited the liability of computer and software companies sued if it turned out that the feared “Y2K bug” destroyed data, shut down equipment, etc., when the clocks turned to midnight on New Year’s Eve—a tort nightmare that never happened.  But Clinton’s support for immunity for the high-tech industry could be explained as a product of pure electoral politics—Silicon Valley formed a significant base of support for the “New Democratic” wing of the party.


Obama’s support for tort reform might be equally cynical—after all, he may simply be willing to throw the American Alliance of Justice under a bus to get a healthcare reform bill passed.  But I suspect that the President’s willingness to entertain tort reform is not based on pure cynicism.  It is worth remembering that Obama, when he was at the University of Chicago, was on very good terms with Cass Sunstein, who he has brought to Washington as his “regulatory czar.”  It is ironic that the right-wing has decided to target Sunstein, since I would wager that one does not have to look much further than Sunstein’s views of the tort system to understand where Obama’s tepid embrace of the tort system comes from.


Sunstein’s credentials as a liberal are unassailable, in my opinion.  His classic article, "Lochner's Legacy," reflects a full and robust defense of the administrative state’s power—even obligation—to promote the specific values in a liberal society.  The question is which values should be promoted?


Sunstein probably would be tolerant of a wide range of values, but he is not shy about expressing his preferences.  When it comes to civil litigation, he believes that private litigation should promote social welfare.  In this he joins an honorable tradition of progressive welfare maximizers such as Guido Calabresi and Steve Sugarman.  What makes Sunstein different from most progressive welfare maximizers is that he has put  some effort—and some scientific rigor—into his critique of the current tort system.


The best example of Sunstein’s approach to tort law, for example, is his treatment of punitive damages.  In a Yale article co-authored with Daniel Kahneman and David Schkade, and then later in a book co-authored with a number of scholars, Sunstein made the argument that punitive damages should be radically restricted and reformed.


The basis of the argument made by Sunstein was that there was positive evidence—gathered by him and his co-authors—that lay jurors could not produce punitive damages judgments that would promote rational deterrence among future defendants.  The mock-jury studies organized by Sunstein and his co-authors (and paid for, it would later turn out—as noted by the Supreme Court—by Exxon) showed that jurors probably could not figure the right level of penalty to deter rational wrongdoers to save their lives.  In some cases, mock jurors irrationally underpunished actors who needed to be deterred, where in other cases the mock jurors placed irrationally high penalties on actors who were simply trying to apply the Hand Test.


From these results, Sunstein and his co-authors concluded that the practice of awarding punitive damages in tort litigation was utterly unconnected to the goals of welfare maximization.  They therefore further concluded that there was no reason to defer to the historic practice of allowing juries to award punitive damages (other than quaint artifacts like the Seventh Amendment).  The practice of letting juries award punitive damages was an empty ornament affixed to the tort system.  Sunstein and his allies were like the Bauhaus school of architecture who looked at Europe’s tradition of Beaux Art ornamentation and said, “Who needs all that form that serves no function?”


Sunstein’s discovery that lay people are bad at promoting efficient deterrence would surprise and disturb only those who thought that it was the primary goal of tort law to promote social welfare.  When I read Sunstein’s results, I did not think they were incorrect as a matter of fact, but I did think they were irrelevant as a matter of tort theory.  Juries may be bad at determining the right penalty to deter rational wrongdoers.  In fact, I agree with Sunstein that a committee of Ph.Ds. in penology could do a better job.  But even if they are bad at law and economics, lay jurors might still be good at figuring out the right response, from the perspective of corrective justice, to a wrongdoer’s action, whether that act is intentional or negligent.  And that, traditionally, is all we have ever asked lay jurors to do.


Of course, Sunstein’s point of view would lead a policy-maker to treat the tort system as nothing more than a mechanism for incentivizing rational actors to act safely or in ways that promote welfare.  If one suspected that the medical malpractice system was like the punitive damages system—that is, utterly and radically disconnected from the task of rationally incentivizing action—then it would be easy to trade it away for other political goals, no matter how speculative.  It would be like a modern architect tearing down an ornate molding to improve the wiring for some lights. 


And that, in my opinion, explains why President Obama is so willing to entertain tort reform in the context of his healthcare bill.  Given how little I suspect the President and his inner circle value tort law as a system of corrective justice, I would not be surprised if they would be willing to trade the right to sue in tort law for other policy goals in the future.



Tony Sebok

Professor of Law

Benjamin N. Cardozo School of Law


September 18, 2009 in Guest Blogger | Permalink | Comments (0) | TrackBack (0)

No Roundup Today

The Roundup will return next Friday, September 25th.  


September 18, 2009 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, September 17, 2009

Introducing Guest Blogger Mike Rustad

Rustad  Monday's Guest Blogger is Mike Rustad.  Rustad is currently the Hugh C. Culverhouse Visiting Chair at Stetson Law School.   He is also the the Thomas F. Lambert Jr. Professor of Law and co-director of the Intellectual Property Law Concentration at Suffolk University Law School. He teaches Torts, Commercial Transactions, Secured Transactions and Internet Law. 

Professor Rustad, originally trained as a sociologist, is a leading academic and business lawyer whose numerous law review articles and book chapters have been cited by the U.S. Supreme Court and many state supreme courts and federal courts. He clerked for the late Judge William E. Doyle of the 10th Circuit U.S. Court of Appeals in Denver, Colorado. Prior to becoming a law professor, he was an associate with the Boston law firm of Foley, Hoag.  Professor Rustad has testified before both Houses of Congress and has been interviewed by NBC Dateline, The Economist, The Wall Street Journal, The New York Times, ABA Magazineand many other national publications. He has authored or co-authored three amicus briefs before the U.S. Supreme Court on the constitutionality of punitive damages. 

Professor Rustad’s most recent books include: Internet Law in a Nutshell (Westlaw 2009); Understanding Sales, Leases, and Licenses in a Global Perspective (Carolina Academic Press 2008); Tort Law:  Cases, Problems, Perspectives (Lexis/Nexis, 2008) (with Thomas Galligan et. al.); Everyday Law for Consumers (Paradigm Publishers, 2008) and E-Business Legal Handbook (Aspen Law & Business, 2003).

He is an elected member of the American Law Institute and belongs to the Member Consultative Groups of the Restatement of the Law (Third) Torts and Principles of Software Contracts. He was elected to the Executive Committee of the American Association of Law Schools Section on Torts and Compensation Systems. In 2009-10, he was elected secretary of the AALS torts section. He has also served as a task force leader for the ABA Business Law Section on Information Licensing. 


September 17, 2009 in Guest Blogger, TortsProfs | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 16, 2009

Halliburton Rape Case Heading to Court, Not Arbitration

The WSJ Law Blog has details.  We posted about the case before here.


September 16, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)