TortsProf Blog

Sugarman on Traynor

Steve Sugarman has posted to SSRN Justice Roger J. Traynor, Pragmatism, and the Current California Supreme Court.  The abstract provides:

California Supreme Court Justice Roger J Traynor entered the debate between pragmatists and formalists, siding with the former in both his scholarly writings and in his judicial opinions,especially in torts. In this article, I explore what I have identified as the leading torts decisions of the California Supreme Court involving personal injury or death in the past twenty years. I first provide background on the rise of strict product liability and an explanation of what I see as the current California Supreme Court’s misguided reliance on the "Rowland" factors, which promote the treatment of “no breach” cases as “no duty” cases. In Part II, I demonstrate the prominence of pragmatism in the Court’s recent decision-making, but not the sort of pragmatic thinking that Traynor expressed. In Part III, I speculate as to how Traynor might have wanted these recent cases resolved based on his pragmatic endorsement of enterprise liability.

Anita Bernstein's "The Common Law Inside the Female Body" Discussed in Online Symposium at Northwestern Law Review

From the  Faculty Lounge:

The Northwestern University Law Review Online has published a symposium issue devoted to Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press 2019), including a response by Professor Bernstein.  Here is the publisher's description of the book:

In The Common Law Inside the Female Body, Anita Bernstein explains why lawyers seeking gender progress from primary legal materials should start with the common law. Despite its reputation for supporting conservatism and inequality, today’s common law shares important commitments with feminism, namely in precepts and doctrines that strengthen the freedom of individuals and from there the struggle against the subjugation of women. By re-invigorating both the common law – with a focus on crimes, contracts, torts, and property – and feminist jurisprudence, this highly original work anticipates a vital future for a pair of venerable jurisprudential traditions. It should be read by anyone interested in understanding how the common law delivers an extraordinary degree of liberty and security to all persons – women included.

Here are the essays in the symposium line-up:

Bridget J. Crawford, The Common Law as Silver Slippers
David S. Cohen, The Promise and Peril of a Common Law Right to Abortion
Joanna L. Grossman, Women are (Allegedly) People, Too
Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle
Margaret Chon, Intellectual Property Infringement and the Right to Say No
Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law
Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body
Anita Bernstein, Negative Liberty Meets Positive Social Change

Bernstein will receive the William L. Prosser Award at the AALS Annual Meeting in January.

FL: Appellate Court Upholds Constitutionality of Med Mal Cap if Arbitration Offer Had Been Rejected by Plaintiff

On Wednesday, a south Florida appellate court upheld as constitutional a $350,000 cap on pain and suffering in med mal cases in which a healthcare provider's offer to arbitrate was rejected and the plaintiff filed suit.  The distinction is important because the Florida Supreme Court held in 2017 that caps on pain and suffering in med mal cases generally are unconstitutional.  WUSF has the story.

Congress Passes Administrative Compensation Procedure for Military Medical Malpractice

On Tuesday, the Senate voted, 86-8, to pass the National Defense Authorization Act.  The Act included $400M for the Defense Department to investigate and pay out military med mal claims internally, bypassing the Feres Doctrine.  President Trump is expected to sign the legislation shortly.  I reported about this possibility last week.  Fox 46 has details.

Goudkamp on Lunney on Australian Tort Law

James Goudkamp has posted to SSRN Book Review:  A History of Australian Tort Law 1901-1945:  England's Obedient Servant?.  The abstract provides:

Recent years have witnessed a surge of interest in the historical foundations of tort law. In 2014, Paul Mitchell published his excellent A History of Tort Law 1900–1950. Now Mark Lunney has published A History of Australian Tort Law 1901–1945: England’s Obedient Servant? Lunney’s book is ultimately concerned to test the claim, which he regards as being received wisdom, that in the period between 1901 and 1945 Australian private law, and Australian tort law in particular, essentially mirrored that in England and that there was little evidence of Australian exceptionalism. Lunney takes the following remark of GW Paton (the Dean of Melbourne Law School) made in 1952 that ‘there are very few significant differences’ between English and Australian law as embodying the conventional view.

Oscar Gray's Memorial Service

The service was held on Tuesday, December 10 at the University of Maryland School of Law.  Speakers included Judge Calabresi and Don Gifford.  Video is here.

Bypassing the Feres Doctrine?

Under a provision inserted into the annual defense authorization bill, Defense Department officials could offer payouts to victims of military medical malpractice.  In what is essentially a compromise, the Feres doctrine, prohibiting victims of military medical malpractice from recovering in court, would not be overturned.  Instead, an administrative compensation program would be created:

In the legislation, lawmakers noted that although the move “does not change or repeal the Feres doctrine, it authorizes the Secretary of Defense to allow, settle, and pay an administrative claim against the United States for personal injury or death … that was the result of medical malpractice caused by a Department of Defense health care provider.”

Most claims would be limited to under $100,000, although the secretary could authorize larger payouts in some circumstances.

The House should vote on the bill today, with the Senate following early next week.  The legislation has passed Congress in each of the last 58 years.  Military Times has the story.

CA: PG&E Reaches $13.5B Settlement with Wildfire Victims

On Friday, Pacific Gas & Electric announced a $13.5B settlement with victims of multiple wildfires alleged to have been started by the company's negligence.  Dozens of people died in those fires and tens of thousands of homes were destroyed.  The settlement "will cover claims stemming from some of the deadliest and most destructive fires in the state’s history, including the 2018 Camp Fire and the 2017 Tubbs Fire. A federal bankruptcy judge needs to approve the accord before it becomes final."  Derek Hawkins at WaPo has the story.

NJ: Sisters Abused by Priest File Suit Against Archdioceses

New Jersey's two-year window to sue for victims of child sexual abuse has just opened.  One of the first lawsuits filed is by a few of the five sisters in one Harrisburg, Pennsylvania family who were abused by a priest in both New Jersey and Pennsylvania.  The priest was moved from New Jersey to Harrisburg, where he met the family.  Some of the assaults occurred when the priest took the sisters to a home in New Jersey. 

Pennsylvania just expanded its statute of limitations for child sexual abuse; separately it started a constitutional amendment process to open a two-year window for those victims barred by the old statute of limitations.  For the amendment to pass, the legislature, which has passed a bill on the amendment once, must pass it again next year.  Then the issue will be on the ballot and voters must approve of it.  The process will take at least two years, but was necessary to break a stalemate in the legislature over the issue.

Pennlive has the story.  

PA: Commonwealth Alters Statute of Limitations on Child Sexual Abuse

Last week I reported a breakthrough in a dispute over extending the statute of limitations for child sexual abuse in Pennsylvania.  As expected, bills were passed by the full Senate and signed by Governor Wolf.  Under new law:

Victims would have until they turn 55 to sue, compared to age 30 in current law. Young adults ages 18-23 would have until age 30 to sue, where existing law gives them just two years.

A separate law started a constitutional amendment process to open a two-year window for child sexual abuse victims whose claims are currently time-barred:

The multi-year amendment process has begun, but the bill must again pass both the House and Senate in the 2021-22 legislative session before voters will decide its fate in a statewide referendum.

Pennlive has the story.