TortsProf Blog

Engstrom on Health Courts

Nora Freeman Engstrom has posted to SSRN A Dose of Reality for Specialized Courts:  Lessons from the VICP.  The abstact provides:

The latest in a long line of reform proposals, health courts have been called “the best option for fixing our broken system of medical justice.” And, if health courts’ supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, “hoped for, but untested.” The question remains: Will health courts actually operate as effectively as
proponents now predict?

The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP) — a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP’s operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won’t operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches — and at times complicates — current understanding of the prospects, promise, and “perceived virtues” of other specialized courts and alternative compensation mechanisms.

Kendrick on Content Discrimination

Leslie Kendrick has posted to SSRN Nonsense on Sidewalks:  Content Discrimination in McCullen v. Coakley.  The abstract provides:

What does it mean to say that the government may not “restrict expression because of its message, its ideas, its subject matter, or its content?” Whatever it means, how would one determine when it has occurred? First Amendment law has wrestled with these questions for more than forty years, and if McCullen v. Coakley is a reliable indicator, the debates have only become more fractious. At several points, the Justices viewed a single phenomenon in strikingly different terms. These conflicts demonstrate both the potential benefits of clear rules in the content discrimination context and their lurking futility.

Via Solum/LTB.

NE: No Sovereign Immunity for Accident Caused by Corn Mash on Highway

Political subdivisions involved in the clean up of a corn mash spill onto a highway were denied sovereign immunity in a recent Nebraska case because they were on notice of the incident, had a reasonable amount of time to correct the problem, but failed to do so.  Iowa State's CALT has details.

Light Blogging

Blogging for the next month will be very light.  Enjoy your summer and regular programming will resume the second week in July.

Nail Salon Chemicals: A Mass Tort Risk?

The National Law Review discusses here.

AALS Torts Section: Second Request for News and Prosser Award Nominations

Dear Colleagues,  

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

1. Torts and Compensation Section Newsletter   As most of you know, our section publishes a newsletter each fall listing: (1) symposia related to tort law; (2) recent law review articles on tort law; (3) selected articles from Commonwealth countries on tort law; and (4) books relating to tort law. If you know of any works that should be included, please forward relevant citations and other information to me at [email protected]. The deadline for inclusion is August 17, 2015.   

2.  2016 William L. Prosser Award   This is the first call for nominations for the 2016 William L. Prosser Award. The award recognizes “outstanding contributions of law teachers in scholarship, teaching and service” in torts and compensation systems. Recent recipients include Mike Green, James Henderson, Jane Stapleton, Guido Calabresi, Robert Rabin, Richard Posner, Oscar Gray, and Dan Dobbs.  Past recipients include scholars such as Leon Green, Wex Malone, and John Wade.  

Any law professor is eligible to nominate another law professor for the award. Nominators can renew past nominations by resubmitting materials. Living tort scholars and those who have passed away within the last five years are eligible for the award. Selection of the recipient will be made by members of the Executive Committee of the Torts & Compensation Systems section, based on the recommendation of a special selection committee. The award will be presented at the annual AALS meeting in January 2016.

   
Nominations must be accompanied by a brief supporting statement and should be submitted no later than July 13, 2015.   Email submissions to [email protected] are preferred.   If you would rather mail hard copies of nomination materials, please mail to:  Chris Robinette, Widener University School of Law, 3800 Vartan Way, P.O. Box 69380, Harrisburg, PA 17106-9380.

Please feel free to contact me if you have any questions.

Thank you—

Chris 

White on Tort History

Ted White has posted to SSRN The Emergence and Development of a Law of Torts.  The abstract provides:

This article discusses the origins and development of tort law in late nineteenth and early twentieth century America. It simultaneously considers tort law as an independent common law field, a subject taught in law schools, and an area of growing litigation. It attempts to delineate the various factors that combined, in the first two decades after the Civil War, to facilitate the emergence of tort law in each of those dimensions. It then discusses the peculiar history of tort law in the early twentieth century, when the advent of worker’s compensation statutes served to remove many prospective workplace accident suits from the common law tort system, but at the same time tort law continued to grow because of the collapse of the privity bar in suits involving negligently manufactured or defectively designed products. Finally, the article describes how the most problematic doctrinal issue for early twentieth-century tort law, “proximate” causation, was temporarily “resolved” by courts and commentators through the “risk-relation-duty” analysis of causation issues proposed by Judge Benjamin Cardozo in the majority opinion in Palsgraf v. Long Island R.R. and initially adopted by the First Restatement of Torts in 1935. Cardozo and the Restatement’s framers hoped that the analysis would enable tort law to get beyond the seemingly intractable issue of which causes of accidents were “remote” and which “proximate,” but the experiment utterly failed, leaving tort law as doctrinally uncertain, and epistemologically complex, as it had always been.

(Via Solum/LTB)

Bernabe on a Parental Duty to Supervise Internet Usage

Alberto Bernabe has published Setting Parental Controls:  Do Parents Have a Duty to Supervise Their Children's Use of the Internet?.  He answers "no" in a comment on last year's Georgia appellate decision in Boston v. Athearn (prior coverage here).

Hurd on the Innocence of Negligence

Heidi Hurd has posted to SSRN The Innocence of Negligence.  The abstract provides:

This article defends the claim that negligence is not blameworthy, and that the system of accident law that dominates Anglo-American law is thus not, in fact, fault-based.  Recognizing that this claim contradicts hundreds of years of case law and jurisprudential rhetoric, the article systematically examines five alternative bases upon which it might be tempting to predicate claims of fault in cases in which persons have inadvertently caused harm.  On these accounts, we are entitled to blame, and therefore to transfer the costs of accidental injuries, to negligent actors because: (1) they deliberately chose to violate per se precautionary rules that exist to safeguard others from inadvertent injury, and in so doing they culpably engaged in objectively faulty conduct, even if they did not subjectively appreciate its risks; or, (2) they deliberately chose to do acts that they knew would make their later inadvertence to risks unjustifiably likely, and we can properly blame them for those prior culpable choices, even if we cannot blame them for the inadvertence that later attended their injurious actions; or (3) while they made no relevant choices with regard to the accidental injuries they caused, they possessed unexercised capacities, which if exercised, would have prompted them to choose a risk-free course of conduct; or, (4) they possessed defective motor skills, cognitive capacities, or volitional resources which were themselves morally blameworthy or which, if not themselves blameworthy, were causally significant to the accidental injury in ways that could have been prevented; or (5) they possessed defects of character which were themselves blameworthy, and which caused their failure to advert to the risks of their behavior, thus making such inadvertence blameworthy.

As I shall argue, none of these arguments succeed in grounding the claim that negligence is morally blameworthy.  None thus provide a basis for thinking that negligence liability is fault-based.  Absent any further account of how inadvertent injuries are culpably caused, tort law and tort theorists should confess that negligence liability is just another species of strict liability.  Corrective justice theorists who are anxious to preserve the claim that tort law should be in the business of redressing culpable wrongs should thus either urge the doctrinal adoption of genuine culpability conditions or get on with the task of vindicating the morality of redistributing losses to those who have voluntarily caused them, however innocently.

TX: $27M Premises Verdict Against McDonald's

The largest premises verdict in Texas in the last decade, for the deaths of two teenagers, was handed down against McDonald's last month.  One of the victims was beaten in a McDonald's parking lot in College Station, Texas, and the other was killed in an auto accident while a friend attempted to get her and the first victim to the hospital.  The theory of the case was lax security; the argument was based, in part, on the fact police had been called to the restaurant at least 20 times in the last year and McDonald's never hired security or installed cameras.  PR Newswire has details.