Thursday, October 27, 2016
Thursday, October 13, 2016
At Ralph Nader's "Breaking Through Power" conference two weeks ago, Margaret Jane Radin proposed a new tort: deceptive deprivation of core legal rights. Her focus is on the use of fine print boilerplate to take rights away from consumers and she offers a specific example:
“Pre-dispute arbitration clauses that erase class actions and jury trial would be a good candidate, because in cases of widespread small harms — such a $5 per month overcharge by a cable company, for example — no one party can get legal redress, and the company achieves large extra gains by aggregating small losses of a large number of people.”
Corporate Crime Reporter has the story.
Monday, September 19, 2016
On December 3, 2016, Duquesne Law will host the Fifth "Colonial Frontier" Legal Writing Conference. Entitled "Drafting Statutes and Rules: Pedagogy, Practice, and Politics", the flyer is here: Download The Fifth Colonial Frontier Legal Writing Conference, Description.
Wednesday, July 20, 2016
From Chris Odinet at PropertyProf Blog:
REGISTRATION OPEN FOR CENTRAL STATES LAW SCHOOLS ASSOCIATION CONFERENCE
Please click here to register. The deadline for registration is September 2, 2016.
Hotel rooms are now available for pre-booking. The conference hotel is the Hilton Garden Inn in Grand Forks. The hotel phone number is (701) 775-6000. When booking, identify yourself as part of the “UND School of Law” block to receive a daily rate of $89. Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.
For more information about CSLSA and the 2016 Annual Conference please subscribe to our blog.
We look forward to seeing you in Grand Forks!
The 2016 CSLSA Board
For more information about CSLSA, visit our website at http://cslsa.us/ or contact a board member.
Friday, May 27, 2016
A recent conference at the James Humphreys Center for Complex Litigation at George Washington addressed the complex issue of liens for medical expenses and subrogation. The conference chairs, Alan Morrison and Roger Trangsgrud, issued a report entitled "Subrogation of Medical-Expense Claims: A Proposal for Future Study", available here: Download GW Law Roundtable Subrogation Proposal Final Thanks to Michael Kaplen for the tip.
Friday, May 6, 2016
Wednesday, April 27, 2016
Duquesne is hosting a legal writing conference on drafting statutes and rules on December 3, 2016. Former PA Governor Tom Corbett and Pennsylvania Senate Minority Leader Jay Costa are among the speakers. The flyer, including a call for proposals, is here: Download The Fifth Colonial Frontier Legal Writing Conference Call for Proposals (Second Announcement)
Thursday, March 17, 2016
Maya Steinitz has posted to SSRN Back to Basics: Public Adjudication of Corporate Atrocities Torts. The abstract provides:
The editors of this symposium invited me to contribute on the subject of an argument I have recently advanced that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.
Monday, February 22, 2016
Lynn Baker has posted to SSRN Aggregate Settlements and Attorney Liability: The Evolving Landscape. The abstract provides:
This Article was prepared for the Hofstra Law Review conference on "Lawyers as Targets: Suing, Prosecuting, and Defending Lawyers."
Over the past several decades, attorneys involved in mass tort settlements, especially those representing the plaintiffs, have faced an increasing number of large-dollar liability claims centered on the aggregate settlement rule: that is, the state equivalents to Rule 1.8(g) of the ABA Model Rules of Professional Conduct. During this period, courts have held that fee forfeiture, potentially totaling millions of dollars, is an appropriate remedy for violations of the Rule, even in the absence of any demonstrated harm to the client. At the same time, courts and other authoritative bodies have expressed a variety of often conflicting views regarding the obligations that the Rule imposes on attorneys and when the Rule applies, resulting in much uncertainty and little guidance for attorneys.
This Article offers both positive and normative clarification. It provides a thick description of the current interpretations of the aggregate settlement rule in order to identify the specific areas of disagreement among authorities. It goes on to offer a normative theory of the Rule and its purpose, which could usefully mitigate the current interpretive confusion regarding which settlements are "aggregate settlements" and what client disclosures are mandated by the Rule.
Monday, February 15, 2016
In conjunction with the British Institute of International and Comparative Law, Ken Oliphant is presenting "The Personal Injury Claims Process--Comparing Legal Cultures" on March 3 in London:
Monday, February 1, 2016
Thursday, January 14, 2016
Jay Feinman has posted to SSRN The Restatement of the Law of Liability Insurance as a Restatement. The abstract provides:
This is an Introduction to volume 68, issue 1 of the Rutgers University Law Review which published papers from a conference on the American Law Institute’s Restatement of the Law of Liability Insurance held on February 27, 2015 at Rutgers Law School in Camden, New Jersey. Sponsored by the Rutgers Center for Risk and Responsibility and co-sponsored by the Institute for Professional Education, the conference engaged academics and practicing lawyers in a discussion of the issues raised by the Restatement.
This Introduction first describes the articles in the symposium, the topics into which they fall, and the papers of other speakers who participated in the conference. Because only a few months prior to the conference the ALI Council had changed the project from a Principles project into a Restatement, many participants framed their analysis in light of the project’s new status as a Restatement. Part II of the Introduction highlights this feature of the articles and discusses the nature of a Restatement and the ALI process that produces Restatements.
The concept of “Restating” the law with a capital “R” has always been controversial, in concept and in application. This Introduction offers four propositions about Restatements, using the Restatement of the Law of Liability Insurance as an illustration: A. Restatements address easy cases and hard cases; B. Precedent matters for a Restatement; C. A Restatement is about weighing, not counting; D. A Restatement is a product of the ALI process.
Monday, January 11, 2016
On Friday in New York, the Torts & Compensation Systems Section met; the Section: 1. presented the Prosser Award to Aaron Twerski; 2. conducted a panel on "MacPherson at 100;" and 3. elected a slate of officers for the coming year.
The chair, Tony Sebok, moderated the panel and presented the Prosser Award. In accepting the award, Twerski stated, "It's an incredible honor to be recognized by my colleagues to win this very prestigious award."
The panel consisted of John Goldberg & Ben Zipursky (presenting a paper together), John Witt, Franz Werro, and Anita Bernstein. Goldberg and Zipursky started the discussion by presenting three myths about MacPherson. The first myth: "Cardozo rejected privity because he embraced a nonrelational duty." In reality, Goldberg and Zipursky stated, a duty may be owed to an indefinite class of persons, but it is always a relational duty. The manufacturer owes care to those who will use its product without inspection, and who stand to be injured if the product is made without due care. The second myth: "Cardozo reached a sound result because he reasoned instrumentally, not doctrinally or morally." In reality, Goldberg and Zipursky argued that Cardozo's approach is not instrumental, but one of pragmatic conceptualism. Macpherson's rule is by far the better reading of the precedents, especially as interpreted against the background of prevailing mores. The question is "are users among those to whom manufacturers owe vigilance?" and not "will society benefit if manufacturers are subject to liability?" Third myth: "Cardozo partly effaced the line between negligence and strict liability." Instead, the focus in MacPherson is on duty and breach, but the focus in Greeman is on compensation and deterrence. Goldberg and Zipursky believe that the myths are problematic because they lead to conceptions of tort law that are problematic. A nonrelational conception of duty, they argued, slides easily into a liability rule conception of tort that overlooks the sense in which product manufacturers should regard themselves as duty-bound not to injure consumers. What should be understood as a responsibility comes to be understood as a mere potential cost. An instrumentalist approach--leads judges to analyze tort cases as calling for judicial policymaking, which in turn renders their decisions more vulnerable to overturning by the legislature (tort reform). Finally, if the difference between negligence and strict liability is overlooked, preemption of products liability law becomes more palatable and the special strengths and rationales for strict products liability law are at risk of being obliterated. Goldberg & Zipursky's message: It is mistaken to think that the way to be a progressive in tort law is to be an instrumentalist.
Next, John Witt presented an historical angle on MacPherson. He approached it by starting with a case decided five years prior: Ives v. South Buffalo Railway. In Ives, the New York Court of Appeals, speaking through William Werner, entertained the first constitutional challenge to workers' compensation. The court went through what Witt described as a "full-0n" discussion of the values at stake in the Constitution and held workers' compensation unconstitutional. The opinion was not well received; by the time of MacPherson only 2 judges remained from the Ives Court. Cardozo's opinion in MacPherson is internal to the doctrine and does not discuss "regulatory" criteria at all. This is especially striking given that automobile accidents at the time had become a significant issue and were being discussed in the same vein as industrial accidents had been before Ives. Witt wondered why Cardozo stuck to the internal approach. He offered several possibilities. One is that Cardozo was engaged in deception. He decided the case on different grounds than he used in the opinion. He realized he couldn't get away with an explicit statement (especially in light of the reaction to Ives) and so he deceived. A slightly different reason is that "purely legal" decisions have more durability. Thus, Cardozo stuck with the internal to preserve the holding for the long haul. Witt rejected these possibilities. He believes them inconsistent with Cardozo's character. In Witt's opinion, Cardozo's approach is based in a moral modesty. Commissions (like the Wainwright Commission for workers' compensation) will inevitably make mistakes. Cardozo, by not relying on such pronouncements, based his decision on more reliable, less grand, principles.
Franz Werro approached MacPherson from a comparative perspective. What influence did MacPherson have in Europe? Werro indicated MacPherson did not have much of an effect on the Continent (largely because it was not needed). It was, however, particularly important to a significant 1932 Scottish case (later adopted in English law by the House of Lords): Donoghue v. Stevenson, better known as the "Paisley snail" case. In that case, a woman was drinking a bottle of ginger beer (at a café in Paisley) when she discovered a decomposing snail in it. The woman sued the manufacturer directly and asserted a legal duty to, in essence, produce snail-free beer. The case established negligence-based liability by setting out general principles whereby one person owes a duty of care to another. The "neighbor principle" was based on whether harm was reasonably foreseeable. MacPherson served as a basis for the principles announced in Donoghue. Werro closed with 3 observations. First, he said it was striking for a civil lawyer to see how long it took the common law to recognize a general tort of negligence. He attributed this to the power of laissez-faire. Second, he noted the French and German civil codes have been far more generous. Third, he celebrated the adaptability of French law until World War II. Since that time, however, he noted tort lost its place to insurance schemes. Europeans trust regulation and insurance far more than Americans.
Finally, Anita Bernstein focused on the changes in society, and thus law, from the time of MacPherson until today. In a presentation entitled the "Reciprocal of MacPherson," Bernstein noted the holding of MacPherson was that care and vigilance were owed by an auto manufacturer. Although privity offered "comfort and care" to the manufacturer, the holding in MacPherson, coming during the Progressive Era, offered "comfort and care" to consumers. Modern law, however, is producing a shift toward obligations owed to an auto manufacturer. Bernstein referenced Geier (2000) (preemption limits design defect cases); Kumho Tire (1999) (making expert testimony for plaintiffs more costly and harder to find); and BMW v. Gore (1996) (restricting punies against auto manufacturers). She then noted the bailout of the big 3 auto manufacturers, which cost taxpayers roughly $9.26 billion. Moreover, tort reform, Bernstein suggested, extends the reciprocal. The emphasis has shifted from what is owed to consumers to what consumers owe potential defendants.
Papers from the panel will be published in the Journal of Tort Law.
The meeting concluded with the election of the Executive Committee for the year:
Chair: Leslie Kendrick; Chair-elect: Chris Robinette; Secretary: Stacey Tovino; Treasurer: Adam Scales; Member: Scott Hershovitz
Tuesday, January 5, 2016
Don't forget the Torts and Compensation Systems Section Panel this Friday at 1:30: "MacPherson at 100: Perspectives on its Influence and Meaning." Aaron Twerski will receive the Prosser Award at the beginning of the presentation.
Wednesday, December 23, 2015
Earlier this year the Rutgers Center for Risk and Responsibility hosted a conference on the ALI's Restatement of Liability Insurance (Tom Baker and Kyle Logue, Reporters). The Rutgers University Law Review has now published articles from the conference. Torts and liability insurance being intertwined, there is a strong representation of torts scholars in the lineup, including Ken Abraham, Mark Geistfeld, and Victor Schwartz.
Friday, October 30, 2015
James Hackney has posted to SSRN Judge Jack Weinstein and the Construction of Tort Law in America: An Intellectual History. The abstract provides:
This Article explores the intersection between the judicial and scholarly work of Judge Jack Weinstein, particularly as related to mass tort litigation and the development of legal theory and tort law in America. The primary focus will be on Judge Weinstein’s handling of the Agent Orange litigation. Judge Weinstein’s tenure on the federal bench began in 1967. Some seven years earlier, Ronald Coase published his The Problem of Social Costs, a monumental moment in American legal theory and tort law policy. Three years later, Guido Calabresi published his path-breaking text, The Costs of Accidents. These two texts are representative of the law and neoclassical economics movement, which would indelibly shape tort law theory in America during Judge Weinstein’s years as a judge.
Law and neoclassical economics is most often discussed as a methodology for analyzing tort law on the basis of efficiency. However, it also exemplifies a broader approach to law that goes beyond efficiency analysis and can be found in much of contemporary legal theory. This broader approach focuses its analysis on the social good as opposed to prioritizing individual rights. It is through the lens of these two features of twentieth-century legal theory (efficiency and the social good), particularly as they apply to tort law, that this Article will examine the Agent Orange litigation.
The Agent Orange litigation is a landmark in American history. It involved hundreds of lawsuits, thousands of claimants (15,000 by one estimate), and seven corporate defendants. Aside from its scope, the issues surrounding Agent Orange are particularly worthy of attention because they exemplify the problems associated with resolving mass tort cases. An intriguing aspect of Judge Weinstein’s worldview, which is reflected in the disposition of the Agent Orange litigation, is that he champions efficiency and the social good while placing a premium on recognizing individual suffering as an existential reality.
Of course, the Agent Orange litigation is also circumscribed by the specter of the Vietnam War, which makes it an even more compelling site of inquiry. The Agent Orange litigation and Judge Weinstein’s legendary handling of it provides us with a unique opportunity to consider tort law in the context of not only legal theory, but one of America’s most searing historical moments, the Vietnam War.
Monday, October 19, 2015
Lynn Baker has posted to SSRN Alienability of Mass Tort Claims. The abstract provides:
This Article was prepared for the 19th Annual Clifford Symposium on Tort Law and Social Policy, "A Brave New World: The Changing Face of Litigation and Law Firm Finance." It seeks to contribute to the larger conversation about whether the United States should permit innovative forms of litigation financing for personal injury claims by examining a hypothetical regime with expanded alienability of mass tort personal injury claims. The Article focuses on this subset of claims because arguments in favor of complete alienability of personal injury claims are strongest with regard to these claims, and many of the staunchest critics of alternative litigation financing have expressed particular concern about its implications in the mass tort context. Thus, those not persuaded by the Article's analysis are unlikely to be persuaded by arguments for expanding the alienability of personal injury claims more generally.
The Article begins by describing the current state of affairs for both clients and their lawyers regarding the alienability and prosecution of mass tort personal injury claims. Despite various longstanding restrictions on the alienability of personal injury claims in the United States, substantial alienability of these claims is permitted and is engaged in by both clients and their attorneys. Part II discusses the aspects of the prosecution of mass tort claims in the United States that make these claims especially good candidates for complete alienability.
Part III discusses the benefits and costs to mass tort claimants and their attorneys of a hypothetical regime under which a claimant could sell her entire claim to a law firm, rather than retain the firm to serve as her counsel on a contingent fee basis. This Part also discusses various practical issues that would need to be resolved before a claim-sale option for mass tort personal injury claims could become a reality. Part IV goes on to analyze the normative concerns that underlie the existing constraints on claim sales. It reveals that none of these concerns is a persuasive grounds for prohibiting mass tort claimants from selling their claims to an attorney (or, perhaps, to any other potential purchaser).
It is not at all clear that a market for mass tort personal injury claims would flourish even if the existing ethical and legal constraints were relaxed. But that possibility does not diminish the importance of the Article's larger conclusion that there are no compelling normative or economic reasons to prohibit the complete alienability of mass tort personal injury claims in the United States.
Tuesday, October 6, 2015
Friday, October 2, 2015
2016 AALS Annual Meeting, Torts & Compensation Systems Section panel; New York City; Friday, January 8, 2016 from 1:30-3:15 (room to be announced)
On March 14, 1916, New York’s high court issued its decision in MacPherson v. Buick Motor Co. Writing for the court, Judge (later Justice) Benjamin Cardozo held that product manufacturers must take care to manufacture products that do not injure consumers. A century later, MacPherson is considered a landmark of tort law, as well as an exemplar of common law reasoning. It is credited with, among other things, contributing to the demise of laissez-faire thinking in American law and laying the groundwork for the modern doctrine of strict products liability. Yet what the decision accomplished, both as a matter of tort doctrine and jurisprudence, also remains controversial. On the occasion of MacPherson’s centenary, a panel of renowned scholars will examine the significance and influence of the case from multiple perspectives, including its influence of the evolution of the “risk society”, its reception and influence in the United Kingdom and Europe, and its place in tort theory and private law in general.
Papers will be presented by:
Anita Bernstein, Brooklyn Law School
John C. Goldberg, Harvard Law School & Benjamin C. Zipursky, Fordham University School of Law
Franz Werro, Georgetown University Law Center
John F. Witt, Yale Law School
Moderator: Anthony J. Sebok, Benjamin N. Cardozo School of Law
Papers will be published in a forthcoming issue of the Journal of Tort Law
Sunday, September 27, 2015