TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, January 31, 2011

Is the Affordable Care Act Unconstitutional?

At Friday's Healthcare Law in the Federal Courts symposium organized by the Federal Courts Law Review at the Charleston School of Law, Professor James Ely (Vanderbilt) and Professor Brian Galle (Boston College) debated whether the mandate that each individual must purchase health insurance or face a $695 penalty was constitutional.

Ely Professor Ely made two arguments.  First, he argued that the mandate exceeded Congress's authority under the Commerce Clause because the failure to buy health insurance was not economic activity.  Second, Professor Ely argued that the mandate did not constitute a "tax" under the Taxing Clause because the legislation does not use the word tax, nor was the provision intended to be revenue raising.  

Galle In response, Professor Galle pointed out that health care amount to 1/7 of the economy.   Professor Galle further presented points from his paper The Taxing Power, the Affordable Care Act, and the Limits of Constitutional Compromise, 121 Yale L.J. Online __ (2011). The abstract provides:

This brief essay responds to recent court decisions and scholarly commentary questioning the constitutionality of the Affordable Care Act. Criticism has focused in particular on the provision imposing a $695 penalty on those who fail to purchase qualifying health insurance.

I argue that, contrary to the courts and the commentators, this provision is valid as an exercise of Congress' power to lay and collect taxes. Although much has been made of Congress' use of the word "penalty" rather than tax, the Supreme Court has held since 1866 that Congress can invoke the tax power in litigation without using that term in the challenged statute. I also reject any normative arguments for rejecting that venerable rule as unpersuasive. In any event, the relevant section refers to the penalty it imposes as a "tax" 48 times.

More substantively, I argue that efforts to claim that the section would fall afoul of constitutional limits on "direct" taxes over-read those sections of the Constitution. Limits on direct taxes were the product of a compromise over slavery, and have no other obvious deep meaning. While we must honor the bargain that resulted in their inclusion in the Constitution, honor can be paid with a narrow reading that allows Congress, not courts, to make tax policy.

The Fourth Circuit has scheduled oral argument in the conflicting Virginia cases for the second week of May.


January 31, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Saturday, January 29, 2011

Rabin on Toxic Torts

Robert Rabin (Stanford) has posted to SSRN Harms from Exposure to Toxic Substances:  The Limits of Liability Law.  The abstract provides:

In the early 1980s, there was great optimism about the prospects for a dawning era of toxic harms litigation, arising out of a heightened sensitivity to public health and safety concerns. This new sensitivity had been manifested in the preceding decade through a whirlwind of political activity, highlighted by such landmark Congressional legislation as the Clean Air Act, the Federal Water Pollution Control Act, and the Occupational Safety and Health Act, and by the establishment of the Environmental Protection Agency. Along parallel lines, a singularly proactive judicial framework for strict products liability emerged in the mid-1960s from a series of California Supreme Court cases and the promulgation of the Restatement (Second) of Torts, section 402A. To some, the stage seemed set for ushering in a new era. In this brief overview, I begin by highlighting some of the key early developments in the toxic tort domain and the contemporaneous critical literature in the 1980s. I then offer some thoughts on the mixed success realized in the ensuing years, focusing on the limitations imposed on the new types of claims by the institutional structure of tort law, but at the same time noting the expansive themes in more traditional types of claims - such as duty to warn - as well as in aggregation strategies of a less formal character. In concluding, I raise the question of comparative institutional competence: Do more conventional regulatory strategies for controlling risks associated with toxic exposures offer greater promise as policy options?


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

Friday, January 28, 2011

Personal Injury Roundup No. 92 (1/28/11)

New Suits

  • Parents of a California woman killed in a gas line explosion filed suit against the pipe owner for negligence and wrongful death.  (Huff Post)
  • Madoff victims sued the SEC for negligence.  (Detroit News)


  • Ninth Circuit finds state law duty-to-warn claims are not preempted in generic drug suit.  (FDA Law Blog, Drug & Device)
  • Fifth Circuit rejects Katrina class action settlement.  (Civ Pro Profs)

Reform, Legislation, Policy

  • Wisconsin legislature passes bill limiting punitive damages and pain-and-suffering damages in certain cases.   The Governor is expected to sign the bill.  (Journal Sentinel)
  • New York considers bill to ban e-cigarettes. (AP/WSJ)
  • The federal Tax and Trade Bureau is considering a proposal to require nutritional information on alcohol labels. (AP)
  • Following President Obama's State of the Union, Democrats propose limited tort reform.  (The Hill)

Trials, Settlements and Other Ends

  • As the Northeast digs out from another storm, you can enjoy "Snowbird Can't Escape The Statute of Limitations She Left Behind" at Drug & Device.
  • Federal judge in New York dismisses tobacco medical monitoring case.  (Mass Tort Profs)



January 28, 2011 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, January 27, 2011

Kucinich Suing Over Olive Pit

Per Gawker, Rep. Dennis Kucinich is suing the companies that supply and operate the House of Representatives cafeteria for damages caused by the presence of an olive pit in a wrap he purchased about three years ago.


January 27, 2011 in Food and Drink | Permalink | Comments (1) | TrackBack (0)

New Caps in Wisconsin

As mentioned in last week's roundup, Wisconsin's governor on Friday signed sweeping civil litigation changes into law, including a cap on punitive damages, on noneconomic damages in suits against nursing homes, and significant hurdles for punitive damages.  Read more from Bloomberg


January 27, 2011 in Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

State of the Union & Tort Law

In the State of the Union address Tuesday night, President Obama indicated a willingness to work with Republicans in considering medical malpractice reforms to eliminate what he described as "frivolous" suits.  You can see some of the various coverage of the reference here, and has a discussion of the law-specific parts of the address here.  Walter Olson questions, I think reasonably, whether the Center for Justice and Democracy, may be a bit too strident in its response ("disgusting").


January 27, 2011 in Current Affairs, Legislation, Reforms, & Political News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 26, 2011

Hylton on Preemption

Keith Hylton (Boston University) has posted to SSRN An Economic Perspective on Preemption.  The abstract provides:

This paper has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to consider its implications for broader controversies about preemption.


January 26, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

Masters of Tort Law Series

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

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

- TortsProfs

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

Monday, January 24, 2011

Healthcare Law Briefing Schedule

If you are following the challenges to the Patient Protection and Affordable Care Act (as I am for the upcoming symposium here in Charleston on Friday), the Fourth Circuit has set the briefing schedule in Sebelius v. Virginia.   (The other Virginia case, Liberty University v. Geithner, is already moving forward in the Fourth Circuit; Liberty University's opening brief was filed last week).

More details from SCOTUS Blog.


January 24, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, January 22, 2011

Civil Recourse Symposium

Florida State is hosting a symposium on John Goldberg and Ben Zipursky's civil recourse theory on February 11 and 12, 2011.  The lineup includes torts scholars Jules Coleman, Arthur Ripstein, Ernest Weinrib, Heidi Hurd, Jason Solomon, Tony Sebok, John Gardner, Stephen Perry, and Scott Hershovitz.  It also focuses on the theory's migration from tort to other areas of private law.  In spite of my criticism, it is nice to see this theory get the attention it richly deserves.  The announcement from Florida State is here.  Larry Solum's coverage at Legal Theory Blog is here.


January 22, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, January 21, 2011

Personal Injury Roundup No. 91 (1/21/11)

I'm starting to prep this roundup under the threat of yet another snow day.  Oi.

New Suits, Trials

  •  Airplane stowaway's family sues, alleging faulty security allowed the teen to get past security and into an airplane's landing gear (from which he fell to his death).  [TortsProf]
  • Fourth Fosamax trial begins.  []
  • Lawsuit looks likely by family of elderly NYC woman who died while waiting for an ambulance during the snowstorm there.  [WAMC]
  • Wisconsin suit over a parking garage collapsed filed in time to beat damages caps.  []


  • Argument heard by the Supreme Court on Anti-Injunction Act case involving a federal trial judge, who had already denied class certification, enjoining a state class action.  [SCOTUSblog, transcript at the Supreme Court's website]
  • Dismissal of pro se suit against the Kardashians, alleging that their reality TV show caused extreme emotional distress, affirmed.  [Reuters, which evidently doesn't have anything better to do with their time]

Reform, Legislation, Policy

  •  Drug & Device Law Blog continues its discussion of whether the learned intermediary rule should have an exception for drugs that are marketed directly to consumers.  [Drug & Device Law Blog]


  • Tainted spinach lawsuit settled after trial started.  []


January 21, 2011 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, January 20, 2011

New Blog on Torts & Scientific Evidence

Nathan Schachtman, a former big firm defense lawyer now practicing on his own, has started a new blog focused on torts and scientific evidence (one of my particular interests), "Tortini: For your delectation and delight, desultory dicta on the law of delicts."  It has a decidedly defense orientation, given his practice, but is essential reading regardless.

Last week, he posted a particularly interesting piece on a Daubert decision in the Avandia litigation.  Read it here, and the first followup here.


January 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Chicken Little

Every year or two, I like to revisit a prediction of utter doom ("It puts roller coasters out of business") issued by the CEO of the California Attractions and Parks, John Robinson, after the California Supreme Court ruled that amusement rides should be treated as common carriers.  It's that time again, so if you're so inclined, head on over to my amusement park safety blog,


January 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 19, 2011

Chamallas on Third-Party Criminal Attack Cases

Martha Chamallas (Ohio State) has posted to SSRN Gaining Some Perspective on Tort Law:  A New Take on Third-Party Criminal Attack Cases.  The abstract provides:

Despite the prominence of the objective "reasonable person standard" in tort doctrine, it is a mistake to conclude that perspective has no place in contemporary tort law. Although explicit perspectival standards, such as the "reasonable woman standard," have gained little acceptance in torts, the perspectives and experiences of non-dominant social groups have sometimes been taken into account in key contexts that involve "culturally polarized understandings of fact" and differing judgments about what constitutes reasonably safe behavior. Notably, the battle has not been over precise formulations of the duty to exercise reasonable care, but over whether to impose a duty to exercise reasonable care in the first instance.

This Article examines third-party criminal attack claims against landlords, businesses, employers, and other entities charged with negligence for failing to detect and remedy dangerous conditions and prevent sexual assaults and other criminal attacks on their premises. The victims in these cases are often women, racial minorities, and low-income residents of high-crime areas. The Article describes the lack of consensus in the courts as to whether defendants owe a duty to take reasonable measures to guard against crime and analyzes the recent position taken by the Restatement (Third) of Torts in favor of imposing a duty in all but exceptional cases. The Article endorses the willingness of some courts in sexual assault cases to impose a duty and articulate a concept of reasonable care that requires defendants to make their premises equally safe for men and women. It criticizes the line of cases which rejects a duty of due care in high-crime areas, excuses defendants from taking precautions proportionate to the risk, and thereby fails to express a norm of equal safety regardless of where a person resides.


January 19, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Documents in Summers v. Tice

More original documents from Kyle Graham (Santa Clara), this time from that famous hunting case, Summers v. Tice

Summers's Court of Appeal Brief Download Respondents' Brief, Tice's Court of Appeal Brief Download Tice's Appellate Brief (Ct of App), Court of Appeal Clerk's Transcript Download Clerk's Transcript (Ct of App), Application for Hearing to Supreme Court of California Download Application for Hearing.


January 19, 2011 in Documents | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 18, 2011

Family of Stowaway Suing

The family of Delvonte Tisdale, a sixteen-year-old who evaded airport security and stowed away in a plane's landing gear, falling to his death in the Boston area, has retained an attorney.  The attorney's statement, issued through a public relations agency, identified his theory of liability:

“The evidence in this case makes it quite clear which party is at fault, and the family has every intention of pursuing legal action of the highest order,” attorney Christopher Chestnut said in a statement released by a public relations firm.

He added “we intend to seek justice for a child who, although culpable for making irresponsible and immature decisions representative of his age, should never have successfully gained access to that airplane. Had airport security been up to par, he would be alive and well with his family today.”


January 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Healthcare Law In The Federal Courts - January 28th, Charleston

The Federal Courts Law Review at the Charleston School of Law is hosting a day-long symposium on Friday, January 28th, on "Healthcare Law in the Federal Courts."  The symposium focuses on the recent health care reform act, namely, the Patient Protection and Affordable Care Act.

Barry Furrow (Drexel) will be giving the key note address, assessing the economic implications of the Act.   Brian Galle (Boston College) and James W. Ely, Jr. (Vanderbilt) will be addressing the constitutionality of the Act and the current litigation. 

Registration is free for individuals who do not seek CLE credit.  For those seeking CLE credit, the cost is $75.00.   (The program is eligible for 6.15 CLE credits based on a 60 minute hour; no ethics credits). 

If you are interested in attending the symposium, please contact FCLR Symposium Editor, Angel Heery at aoheery [at] to RSVP.



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

Monday, January 17, 2011

The 25th Anniversary of Martin Luther King, Jr. Day

Martin Luther King, Jr. Day is not only a federal holiday, but also a national day of service. Congress passed the King Holiday and Service Act in 1994, which established Dr. King's birthday as a day of service and charged the Corporation for National and Community Service with leading this effort. 

Although legislation was signed in 1983 designating Dr. King's birthday as a federal holiday, it was not observed until 1986, making 2011 the 25th anniversary of MLK Day.


January 17, 2011 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Friday, January 14, 2011

Personal Injury Roundup No. 90 (1/14/11)

New Suits

  •  Drivers in car collisions with moose in Newfoundland, Canada blame the province for failure to control the moose population. (BBC via Olson/Overlawyered
  • Jilted bride sues groom for $100K for breach of promise to marry, IIED.  (Today Show via Olson/Overlawyered)


  • IL:  Court affirms summary judgment for a defendant in trampoline injury case and provides a helpful "suggested checklist for summary-judgment practice."  Simmons v. Reichardt (PDF)
  • WV:  A couple attempts to have the state's med mal cap declared unconstitutional.  (J.D. Supra)

Reform, Legislation, Policy


  • NY:  Rotator cuff injury verdict:  $250K pain-and-suffering award; the case was complicated by legal malpractice and a preexisting shoulder injury.  (Hochfelder/New York Injury Cases Blog)


  • Ron Miller at The Maryland Injury Lawyer Blog has started his own roundup as part of a New Year's Resolution.  Here's a sample

Thanks to Gil Lenz for material this week.


January 14, 2011 in Roundup | Permalink | Comments (0) | TrackBack (0)

Thursday, January 13, 2011

Vaccine-Autism Link Study a "Fraud," Motivated by Money

By now, most have heard about the three-part series BMJ is publishing about Andrew Wakefield's now-discredited Lancet study linking vaccines to autism.  Part 1 explored the [to describe it charitably] flawed data; an accompanying editorial described it as an "elaborate fraud."  Part 2, published yesterday, discusses the role money -- lots and lots of money -- played in the fraud.

Also, over the weekend, NPR's All Things Considered had an interview with Seth Mnookin, whose new book, The Panic Virus, explores the history of the vaccine-autism issue.


January 13, 2011 in Products Liability | Permalink | Comments (0) | TrackBack (0)