TortsProf Blog

Durbin on Med Mal Reform

From George Conk at Otherwise:   Senator Richard Durbin responds to Republican arguments for medical malpractice reform.

- SBS

Personal Injury Roundup No. 68 (2/26/2010)

We finally got something like a winter storm this week in New England.  But it's always sunny in the world of Torts.  Or something.

Reform, Legislation, Policy

• Rep. Issa says health care reform must also include malpractice reform (Politico)
• Doctors think so too (CNN)
• ...and much of the discussion this week was on Twitter, where one can make sophisticated and complex arguments in 140 characters (fewer if you use a lot of emoticons) (WSJ Law Blog).
• Philip K. Howard on how to fix the legal system (TED.com

New Lawsuits

• IRS worker's widow sues widow of Joe Stack for wrongful death (Statesman.com) 
• Lawsuit filed over hot dog injury (Deadspin) 
• Drug & Device Law Blog isn't impressed by a qui tam action (Drug & Device Law Blog) 
• The possibilities of litigation connected to Sea World trainer's death (Above the Law)
• On the Toyota litigation (NPR, Point of Law)
   

Trials, Settlements and Other Ends

• One jury awards $9.45 million in a PremPro trial (Law.com)
• ...while another awards nothing, finding no causation (Law.com)

Appeals

• Not torts-specific, but the Supreme Court's ruling on jurisdiction will obviously be important in tort litigation (SCOTUSblog) 
• Florida $300M tobacco verdict reduced to $39M (Business Week)

Damages

• Former NFL player to pay over $1M to former daughter for abuse (First Coast News).
• Ex-prison guard ordered to pay $1.4M in rape case; collection looks unlikely (Standard.net)

Miscellaneous

• A new -- or at least newly-used -- theory for slip-and-fall cases in New York?  (Turkewitz)
• I appear to have started blogging again about amusement park and carnival safety and litigation (MassTort.org).

--BC

Introducing Guest Blogger Ken Simons

  Monday's guest blogger is Ken Simons.  Simons is the Honorable Frank R. Kenison Distinguished Scholar in Law and Professor of Law at Boston University School of Law.

Simons has been a member of the BU Law faculty since 1982.  He served as Associate Dean for Academic Affairs from 1990 to 1993, and as the Associate Dean for Research from 2006 to 2008.  He has taught criminal law, torts, constitutional law and seminars on the topics of justice and rights, the philosophy of punishment, and the idea of equality.   In 1999, Simons was a visiting professor at Michigan Law School, where he taught torts and a seminar on "Rights and Justice." 

Simons's publications are too numerous to list here.  Recent publications include: "Mistake of Fact or Mistake of Criminal Law? Explaining and Defending the Distinction," in Symposium, Criminal Law & Philosophy  (forthcoming); "The Restatement Third of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines," in Symposium, Wake Forest Law Review  (forthcoming); "The Distinction Between Negligence and Recklessness Is Unstable," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); "Excuse Doctrine Should Eschew Both the Reasonable and the Ordinary Person," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); "Requiring Reasonable Beliefs about Self-Defense Ensures That Acts Conforming to Those Beliefs Are Reasonable," in Criminal Law Conversations, K. Ferzan, S. Garvey & P. Robinson, eds., Oxford University Press (2009); and "Retributivists Need Not and Should Not Endorse the Subjectivist Account of Punishment," 109 Columbia Law Review Sidebar 1 (2009). 

Simons clerked for Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit and Justice Thurgood Marshall of the U.S. Supreme Court.

- SBS

Journal of European Tort Law

The European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL) of the Austrian Academyof Sciences are pleased to announce the launch of their new official journal, the Journal of European Tort Law (JETL), which will be published by the distinguished house of de Gruyter (Berlin). The JETL is the first law review to be dedicated to this important and dynamic area of European private law. It aims to contribute to the analysis and development of tort law in Europeby the publication of scholarly articles, comments and reviews. Its focus is primarily comparative, but it will also publish analyses of the tort law of single legal systems where the subject matter is of sufficient interest to the Journal’s general readership. Comparative analyses of non-European systems from the perspective of European tort law will also appear from time to time. The Journal embraces all scholarly perspectives, including economic analysis of law and socio-legal studies. Its subject matter is both substantive tort law, including its place in the general law of obligations, and the wider tort system, including its practical operation and its relationship with such institutions as private and social insurance.

 

The Journal will be published three times a year. Issue 1 will be published in March 2010. The General Editor is Professor Ken Oliphant, Director of ETL. Professor Helmut Koziol, Director of ECTIL, will act as Honorary Editor in Chief. Further information is available here.

 

Blog readers with relevant research interests are encouraged to consider publishing in the Journal.

 

Thanks to Ken Oliphant for the tip.

 

--CJR

More on Toyota Lawsuits

David Owen (South Carolina) and Byron Stier (Southwestern/Mass Tort Profs) are quoted in yesterday's NPR "All Things Considered" broadcast on Toyota's lawsuit problem.  The story (and audio) are available here.

--CJR

Hanson & Kysar to Give 2010 Monsanto Lecture

Jon Hanson (Harvard) and Douglas Kysar (Yale) will give the 2010 Monsanto Lecture at Valparaiso on Friday, March 19 at 4:00 p.m.  The topic is "Abnormally Dangerous:  Inequality Dissonance and the Making of Tort Law."

--CJR

Senate Hearing Today on Foreign Libel Lawsuits

From Point of Law comes news of a Senate Judiciary Committee hearing at 10:00 am today on "Are Foreign Libel Lawsuits Chilling Americans' First Amendment Rights?”   Kurt A. Wimmer, a partner at Covington, and Bruce D. Brown, a partner at Baker Hostetler, will testify. 

Can't get to Washington?  You can watch a webcast of the hearing.

- SBS

Critiques of Markel's "How Should Punitive Damages Work"

PENNumbra, the on-line companion of the University of Pennsylvania Law Review, has published two responses to Professor Dan Markel's latest article on his retributive damages theory, "How Should Punitive Damages Work?"

David S. Owen (University of South Carolina) addresses Markel's theory in "Aggravating Punitive Damages" (pdf).  The abstract provides:

In Aggravating Punitive Damages, Professor David Owen applauds much of Professor Markel’s vision of how punitive damages law should operate, such as using a “clear and convincing” standard of proof for this quasi-criminal remedy. While acknowledging that Markel’s public law insights illuminate a host of perplexities, including many nettlesome issues under the due process umbrella that now cabins punitive damage awards, Owen questions Markel’s bold proposal to redirect the retributive focus of this hybrid remedy away from victims of aggravated wrongdoing to the public at large—such as shifting retributive damage awards from victims to the public. Owen argues that, most fundamentally, punitive damages are best viewed as a form of robust, retributive restitution for victims of flagrant wrongdoing and that this peculiar remedy should remain firmly rooted where it began and presently resides—in private law.

Michael I. Krauss (George Mason) also reviews Markel's article in "'Retributive Damages' and the Death of Private Ordering." (pdf)  The abstract provides:

In “Retributive Damages” and the Death of Private Ordering, Professor Michael Krauss explores the implications of Markel’s retributive damages for the private ordering/public ordering divide. Relying on Aristotle’s conception of corrective justice and eighteenth-century common law, Krauss makes the philosophical and historical case for the proper, limited role of punitive damages. He argues that punitive damages are only legitimate where used to close loopholes in conventional tort law remedies—e.g., as compensation for moral offenses. Accordingly, he contends that the retributive use of punitive damages is a pollution of tort law by public ordering principles. Finally, even for those who accept the theoretical premise of retributive damages, Krauss identifies several potential problems with Markel’s scheme—theoretical, practical, and constitutional.

- SBS

Bernstein on "Pervading"

Honored to be here for a guest post.  In choosing my topic, I’ve decided to forgo the chance to, ahem, promote my own recent torts publications and instead write in response to the request I’ve heard most often from colleagues over the years:  Any suggestions of how a Torts instructor can integrate professional responsibility or legal ethics into this course?

 

This question broaches the pervasive method.  Professional responsibility folks have long debated the issue of venue: Should this subject occupy its own course, or instead pervade a larger curriculum?  I’ve expounded on the issue elsewhere, referring to the pioneering pedagogy that Deborah Rhode staked out decades ago.  For now let’s assume that you are interested in making occasional references to legal ethics or professional responsibility issues as they are presented by the material you cover in your Torts class.

 

Disclaimer:  I am not necessarily advising you to do so.  Everything we put into our classes displaces something else we could do with the same unit of time.  No matter which political ideologies we hold, we all believe in the microeconomics tenet of scarcity!

 

That said, it’s nice to gain an option.  So I’ve gathered a half-dozen torts-and-professional- responsibility points that won’t demand too much preparation effort or time in class. They have the almost paradoxical virtue of making what you do in class more theoretical and more hands-on practical. You can emphasize either aspect.  

1.    The contingent fee.  Whenever your text includes a case with a plaintiff who appears to lack wealth, you can tell students how personal injury lawyers typically get paid for their work.  From there, mention ethics issues that accompany the contingent fee, which is an attorney’s gamble that prosecuting a tort claim for a client will pay off.  And from there…

 

2.    … you can introduce conflicts of interest between lawyer and client by asking which conditions would make a lawyer want to settle while a client wants to press on toward trial.  Then ask what would make a lawyer want to go to trial while the client prefers fast cash.  You might be surprised—at least I’ve been surprised—to hear first-year students argue that the lawyer’s preference should prevail.

 

3.    Truth versus partisanship.  Do plaintiffs tell the truth under oath about, say, their own lack of comparative negligence?  For scrutiny of the other side of the caption, you can use cases involving entity defendants, which invite attention to concealment of evidence and well-financed stonewalling.

 

4.       Solicitation.  Students often don’t know that a lawyer may not approach an injured stranger and offer to represent this person in pursuit of legal redress for the injury.[1]  I’ve long been fascinated by this prohibition (and have explored what it has, and doesn't have, in common with the criminalization of solicitation in the context of street prostitution).  The ban seldom emerges from cases in a Torts text, but you can often find it just below the surface.  For example, in the book I now use, one decision speaks disparagingly of plaintiffs’ experts, implying that they had tried to use dishonest boilerplate affidavits.[2]  Rejection of their testimony can open a conversation about mass torts as lawyer-driven business enterprises rather than responses to the needs of hurt individuals.

 

5.    Witness coaching.  Consider the way judicial authors use “the facts” to support the decisions they make to permit or bar recovery in tort.  How do these judges know what happened?   Many of the cases in your text will be appellate opinions reviewing lower court judgments following a trial.  This case law may raise the possibility that witnesses (especially plaintiffs) were coached by their attorneys.  I recommend the law review article by Bill Hodes defending this practice.  His thesis, which you can summarize in class, is provocative.[3]

 

6.    Tort liability for attorney misbehavior. Sometimes Torts gives students the impression that anybody can sue anybody for anything.  It can be refreshing to turn this plenary breadth against our own occupation.  The Goldberg, Sebok & Zipursky text that I use gives instructors an early opportunity to raise the subject by presenting duty—including the limited duty to prevent economic loss—up front.  Another convenient point to raise this issue arises when you reach a medical malpractice case.  “That’s medical malpractice,” you can say by way of opening a discussion.  “What would be legal malpractice?  How might a lawyer cause injury by failing to fulfill the standard of care?”  Tort liability for “abuse of process” and “malicious prosecution” can come up later, if you so desire.

 

- Anita Bernstein

Anita and Stuart Subotnick Professor of Law

Brooklyn Law School 

---

[1] A couple of jurisdictions do permit this overture.

[2] John C.P. Goldberg, Anthony J. Sebok, & Benjamin C. Zipursky, Tort Law: Responsibility and Redress 242 (4^th ed. 2008) (reprinting Aldridge v. Goodyear Tire & Rubber Co., 34 F. Supp. 2d 1010 (D. Md. 1999)).

[3] W. William Hodes, The Professional Duty to Horseshed Witnesses--Zealously, Within the Bounds of the Law, 30 Texas Tech. L. Rev. 1343 (1999).

Personal Injury Roundup No. 67 (2/19/10)

Okay.  I admit it's been a very busy week for me, and I haven't spent as much time on the Roundup as usual.  However, that being said, I have trolled all my typical sources of information.  It just seems to be a slow week.  Perhaps the Olympics are to blame.  In any event, I'm outsourcing this week's Roundup.  If you have information to contribute, send it in.  I'll get the word out about your interesting new suit, appeal, settlement, etc.

Reform, Legislation, Policy

• New RAND Publication: The U.S. Experience with No-Fault Automobile Insurance: A Retrospective
• The IL Supreme Court struck down caps on med mal awards last week.  Will awards climb as a result?  (Medill Reports)
  

New Lawsuits

• 
   

Trials, Settlements and Other Ends

• $4.1 M settlement for malicious prosecution leading to a decade of imprisonment.  (CNN)

Appeals

• Dismissal of suit for floor hockey gym class injury upheld on appeal (New York Injury Cases Blog)

Damages

• Police car strikes bicyclist, breaking both of his legs; Appeals court upholds additur from $100,000 pain-and-suffering verdict to $750,000.  (New York Injury Cases Blog)

Miscellaneous

• Ron Miller on Personal Injury Leads Cold Calls (The Maryland Injury Lawyer Blog)
• Monday's Guest Blogger, Anita Bernstein, on "Tort Law, Distributive Justice, and Sociolegal Scholarship."  (Via Solum/Legal Theory Blog)

Thanks to Mark Behrens for material this week.

--CJR

Introducing Guest Blogger Anita Bernstein

    Monday's guest blogger is Anita Bernstein.  Bernstein is the Anita and Stuart Subotnick Professor of Law at Brooklyn Law School, where she currrently teaches Torts, Marriage and the Law, and The Legal Profession.

Prior to joining Brooklyn Law School, Bernstein was the Sam Nunn Professor of Law at Emory University School of Law, the Wallace Stevens Professor of Law at New York Law School and the Norman & Edna Freehling Scholar and Professor of Law at Chicago-Kent College of Law. She also served as a visiting professor at Michigan Law School, Cornell Law School, and the University of Iowa College of Law, where she was the Mason Ladd Distinguished Visiting Professor of Law. Before her academic career, she practiced with Debevoise & Plimpton and was a law clerk to Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York.

Bernstein is a prolific author whose work includes several books on marriage and torts, including Marriage Proposals: Questioning a Legal Status (2006), Torts: Questions and Answers (2004) (co-author with David Leonard), and A Products Liability Anthology (ed.)  (1995).  Bernstein's awards include the first Fulbright scholarship in European Union affairs given to a law professor. She is a member of the American Law Institute and a past chair of the Association of American Law Schools Executive Committee on Torts and Compensation Systems.

- SBS

 

 

 

Burch on Group Consensus, Individual Consent

Elizabeth Chamblee Burch (FSU/Mass Tort Profs) has posted to SSRN Group Consensus, Individual Consent.  The abstract provides:

Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

These sections make some scholars nervous because they substitute individual consent to a settlement for individual consent to a process. But the process itself plays a vital function; it isn’t simply a handy crutch for enforcing substantive law. When process is coercive or consent is tainted those flaws undermine systemic legitimacy and can affect subsequent compliance with the outcome. To be sure, process should enable the enforcement of substantive laws. But it can do so much more. It can serve as means for bringing plaintiffs together, plugging their stories into a larger narrative, making sense of that narrative as part of a community, deliberating about the role that litigation should play, and encouraging plaintiffs to reason together about the right thing to do.

--CJR

Bernstein on "Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality"

Anita Bernstein (Brooklyn) has posted "Pecuniary Reparations Following National Crisis: A Convergence of Tort Theory, Microfinance, and Gender Equality" on SSRN.  The abstract provides:

Governments around the world have undertaken reparations programs following historically recent experiences of serious human rights violations. This article uses tort theory to defend monetary payments as a constituent of national repair. It argues that paying money to victims comports with feminism too.

Once accepted in principle, this measure raises a new question: What is the best way to convey pecuniary reparations in transitional settings? With due heed for the reality that circumstances always vary from country to country, the chapter argues for “microfinance” (as distinguished from “microcredit”) as the preferred mode for transitional governments designing new national reparations programs. The article works with, while also trying to deepen, a conventional wisdom that microfinance advances the social and economic status of women. 

- SBS

Prosser Award Nominations

The Torts and Compensation Systems section of the American Association of Law Schools (AALS) is soliciting nominations for the William L. Prosser Award for 2011.  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  Oscar Gray, Dan Dobbs, and Robert Rabin.  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.  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, 2011.   

 

Nominations, accompanied by a brief supporting statement, should be submitted to Prof. Michael L. Rustad, Chair Elect of the Executive Committee, either by regular mail or e-mail  at profrustad [at] aol.com.  Nominations must be received no later than 5 pm eastern time (U.S.) on July 1, 2010.  E-mail submissions at profrustad [at] aol.com are preferred.   If you prefer to mail the nominations, please send them to the address below:

 

Michael L. Rustad
Thomas F. Lambert Jr. Professor of Law &
Co-Director of the Intellectual Property Law Concentration
Suffolk University Law School
120 Tremont Street, Boston, Massachusetts 02108-4977
Tel: 617-573-8190

 

- SBS

Guest Blogger Alan Calnan: On Due Process, Probable Cause, Duty and Torts

Nothing in torts is more sacrosanct than the aggrieved party’s right to sue. Some theorists see it as a political right of access to an important public institution. Others say it is a moral imperative securing a fundamental personal liberty. Still others view it as simply a practical expedient for blatant judicial policymaking.

Whatever its basis, the right to sue is both embedded in and enabled by the tort concept of duty. Conventional wisdom holds that people owe a general duty to protect others from the unreasonable risks of their conduct. This duty, in turn, bestows upon all citizens both a primary right of security and a complementary power to enforce that right in court. When one person’s act violates another’s security by causing her personal injury, this dormant power becomes an actual subsidiary right of legal recourse that presumptively legitimates the injured party’s tort suit against the actor. Indeed, under the approach recently adopted by the Restatement (Third) of Torts, that subsidiary right prevails unless and until the actor turned defendant affirmatively undertakes to challenge it.

In this post I will argue that the right to sue in tort is not universal, absolute or automatic, but is counterbalanced and limited by an equally critical right to be free from unsubstantiated litigation. Relatedly, I shall contend that this defensive right invalidates the use of a general duty in negligence cases. A plaintiff suing for negligence must earn the right to haul her adversary into court; and to do this, she must show probable cause for her action. I will close by briefly sketching out a procedure for implementing this requirement.[1]

A tort action, like a criminal prosecution, is an assault. Stripped of its formal trappings, such a proceeding entails one person or group acting to interfere with the interests of another. Regardless of its outcome, this assault greatly impairs the liberty of the party against whom it is directed, disrupting her employment, draining her financial resources, subjecting her to public obloquy, and causing her anxiety and emotional turmoil.

Both types of assault rely on state action. In criminal cases, the state initiates and prosecutes the assault on its own. In tort cases, the state provides invaluable assistance to a private claimant, lending her its fora, facilities, administrators, laws, procedural rules, decisionmakers, and even its coercive authority. Accordingly, each act of legal aggression is governed by the dictates of due process.

Due process prohibits limiting liberty without adequate justification. Neither criminal prosecutions nor tort actions are inherently justified. When an accuser makes an accusation of legal responsibility, the propriety of the accused’s conduct is unknown. There is no more reason to assume the accused’s guilt than to assume the accuser’s bad faith. The only certainty is the fact of the accuser’s current aggression. Until grounds for suspecting a wrong are established, the accuser possesses no automatic right of recourse. She accrues that right by creating probable cause for her action.

In criminal cases, probable cause has a single, factual dimension. The prosecutor must present facts demonstrating that the accused probably committed a crime. This showing is sufficient to justify state action, since both the conduct subject to criminal punishment and the authority of the state’s prosecutor are prescribed by statutory law.

Tort cases, by contrast, require three forms of probable cause. As in criminal cases, the prosecutor of a tort action must present facts providing reasonable grounds to believe that the defendant committed a tort. Unlike criminal cases, however, this factual predicate is not sufficient to establish a right to civil recourse. To fully justify her private assault, a tort plaintiff also must establish substantive and procedural probable cause.

Substantive probable cause is a prima facie showing of the defendant’s obligation. While criminal duties are clearly defined and statutorily entrenched, tort obligations are deceptively complex and insufferably dynamic, often arising slowly and incrementally from decades of precedents, or erupting suddenly and spontaneously from a single judicial decision. Thus, tort’s duties are naturally more uncertain.

Continue reading

Personal Injury Roundup No. 66 (2/12/10)

Reform, Legislation, Policy

• A lower pain-and-suffering damages cap for med malpractice suits under consideration in Utah.  (Salt Lake Tribune)
• FDA considers changing serving size information.  (NY Times)
• Connecticut gubernatorial candidate calls for medical malpractice tort reform.  (Stamford News)
• First Lady Michelle Obama discusses health care reform and obesity on Larry King. (CNN)
  

New Lawsuits

• 50 Indiana women file suit against Bayer over Yasmin. (IndyStar)
• Toyota lawsuits begin.  (Civ Pro Profs, National Law Journal/law.com)
• Brangelina sue  News of the World  for "false and misleading" breakup story.  (Us Mag, Guardian UK, BBC)
   

Trials, Settlements and Other Ends

• Jenny Craig settles false advertising suit by Weight Watchers.  (American Lawyer/law.com)

Appeals

• Third Circuit holds that Federal Tort Claims Act suits must state "sum certain" even if treatment is on-going.  (NJ Law Journal/law.com)
• Washington Supreme Court rejects nationwide consumer fraud class action against AT&T.  (Mass Tort Defense)

Damages

• Florida judge says he intends to reduce $224M punitive damages award to individual smoker.  (Cal Punitive Damages)
• Meanwhile, a Philadelphia judge reduced the punitive damages against Wyeth in a Preempro case from $75M to $5.6M.  (Mass Torts Profs)

Miscellaneous

•  "Online Defamation and Anonymous Defendants."  (National Law Journal/law.com)

--SBS

Monday's Guest Blogger: Alan Calnan

 

Alan Calnan is Professor of Law at Southwestern Law School.  He developed a profound interest in jurisprudence and the social policies that influence it while serving as Notes and Comments editor of the Syracuse Law Review. Today, that interest has led him to explore the roots of tort law in his books Justice and Tort Law and Duty and Integrity in Tort Law. His 2005 book, A Revisionist History of Tort Law, has garnered numerous outstanding reviews.

Professor Calnan began his career as a judicial clerk to Judge Donald E. Wieand of the Superior Court of Pennsylvania, and went on to serve as a litigation associate with the firm of White & Williams. He found he missed the intellectual rigor of academic life, and left practice to accept a faculty position at Villanova University School of Law.  In 1990, he joined the Southwestern faculty. About teaching, Professor Calnan says, "I love the interaction with students. If I do my job well, I can cause them to see the world in a completely different way." His students believe that he has been successful in doing just that, and in 1999, he received Southwestern's Excellence in Teaching Award. The same year, he was named as the Irving D. and Florence Rosenberg Professor of Law, one of the highest honors bestowed on Southwestern Faculty. In 2004, he was named the Paul E. Treusch Professor of Law for his outstanding teaching, professional accomplishments and service to Southwestern.

Professor Calnan's expertise has been tapped by such agencies as the Bureau of Alcohol, Tobacco and Firearms, and the National Research Council and National Academy of Sciences' Committee on Marking, Rendering Inert, and Licensing of Explosive Materials, in a study of means to combat terrorist bombings. He has been quoted on an extensive array of tort and product liability issues (ranging from municipal liability to the liability of dog food, automobile, cigarette, gun, breast implant and halogen lamp manufacturers) by The Associated Press, The Los Angeles Times, USA Today, The Arizona Republic, The Atlanta Journal and Constitution, The Chicago Sun-Times, and other major newspapers, television, cable and radio outlets around the country.

--CJR

Sharkey on Trespass Torts and Self-Help

Catherine Sharkey (NYU) has posted to SSRN Trespass Torts and Self-Help for an Electronic Age.  The abstract provides:

Liability for trespass to chattels (or personal property) ensnares one who intentionally takes or inter-meddles with chattel in the possession of another. The past decade or so has witnessed the re-emergence of the tort in a new guise, as a sword against electronic intrusions over the Internet. Trespass to chattels is distinct from trespass to land in that it requires proof of actual damage. Self-help is an adequate remedy for protection against “harmless” inter-meddlings with personal property, but not in the case of land.

The significance of the self-help remedy in trepass to chattels sheds light on an inherent limitation of the classic Calabresi-Melamed framework of entitlements protected by legal rules. Self-help is the “missing” third remedy. Self-help is conventionally understood as either a privilege to do something that would otherwise be legally actionable in order to prevent or cure a legal wrong or else a variety of prophylactic measures that one might take to protect one’s property that do not infringe upon anyone else’s legal rights.

In this article, written for a symposium celebrating the work of Richard Epstein, I invoke self-help as a prerequisite to invoke legal process. While not uncommon in real property law, conditioning one’s entitlement to legal remedies on the exercise of self-help is exceedingly rare in tort law but is justified on different grounds. First, the victim might be the “cheapest cost avoider” of the injury, such that it is efficient to place the burden upon the victim to take self-help measures that could, in some cases, mitigate or avoid the injury altogether. Second, a “live and let live” philosophy may govern minor injuries and inconveniences; self-help serves as a “sincerity index” for establishing the weightiness of the legally protected interest. Third, and especially relevant in cyberspace, the boundaries between public and private property are contestible. Self-help can serve as a way in which someone can “mark” his property as private - or exclude it from the public commons. The Internet trespass to chattels cases provide an opportunity to explore this conception of conditional self-help.

--CJR

Burch on Procedural Adequacy

Elizabeth Chamblee Burch (FSU/Mass Tort Profs) has posted to SSRN Procedural Adequacy.  The abstract provides:

This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” principle as our yardstick for adequate representation is alluring - it removes motivations and morality from the equation and avoids the stickiness that those calculations entail. Plus, Professor Tidmarsh’s careful treatment of the philosophical and economic arguments underlying the joinder rules make a compelling argument for the change. My concern, however, is two-fold: (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class action legitimacy.

--CJR

A Treasure of Torts in The Latest Northwestern Law Review

The latest volume of the Northwestern Law Review contains a treasure of tort scholarship including Jason Solomon's Equal Accountability Through Tort Law  (pdf) and The Synergy of Early Offers and Medical Explanations/Apologies (pdf) by our own Chris Robinette.

- SBS