Wednesday, October 31, 2018
James Goudkamp & Donal Nolan are publishing "Contributory Negligence Principles and Practice" from OUP. The blurb provides:
Despite the centrality of the contributory negligence doctrine in practice, very little is known about how it functions in reality. This volume provides legal practitioners with a ‘one-stop-shop’ where they can find clear and succinct exposition of the legal principles governing contributory negligence alongside an empirically informed analysis of the way doctrine operates in various recurrent factual scenarios, based on cases decided between 1998 and 2017.
For each of the given recurring acts of contributory negligence, the average discount, the range of discounts, and the distribution of discounts are reported. These statistics are supplemented by way of illustrations drawn from the case law. Short summaries of typical cases for the relevant act of contributory negligence are given, along with summaries of cases that fall towards the higher and lower ends of the range of discounts.
A 30% discount is available with this flyer: Download Goudkamp and Nolan Contributory Negligence (Oct 18)
Tuesday, October 30, 2018
Ken Abraham & Leslie Kendrick have posted to SSRN There's No Such Thing as Affirmative Duty. The abstract provides:
Tort law has long distinguished between misfeasance, which is accompanied by a duty of care, and nonfeasance, which is generally not. Thus a driver has a duty to brake for a pedestrian in the street, but a bystander has no duty to rescue him. Only in rare cases do parties like the bystander have an “affirmative” duty to exercise reasonable care. But the idea of affirmative duty has done more harm than good. The doctrinal treatments of nonfeasance and affirmative duties too often encompass situations that could just as easily be considered regular misfeasance cases. This, we argue, is because even textbook illustrations of misfeasance and nonfeasance reveal little real distinction between the two.
In effect, there is no such thing as affirmative duty, as tort law uses that term. This article’s primary objective is to show that this is the case and explain why it is so. We reveal the descriptive and normative confusion surrounding the concept of affirmative duty. We explain the sources of this confusion, both conceptual and historical. And we begin the project of reconstructing existing law on a firmer conceptual footing. As it turns out, this does not involve the categories historically relied on by tort law. Instead, these categories contain within them other factors that help to define the scope of liability. In the end, ideas such as misfeasance and nonfeasance, and regular duties and “affirmative” duties, are largely beside the point.
Monday, October 29, 2018
I'm a bit late covering this; it happened while I was away. The Arkansas Supreme Court, for procedural reasons, threw tort reform (Issue 1) off of the November ballot. The opinion is here. Proponents could certainly try again (they have in the past). But, to me, the bigger issue is the emergence of a traditionally conservative advocacy group (family-oriented Christians) opposing reform instead of supporting it or remaining neutral. If this portends a national movement, the politics (and success) of tort reform may change dramatically. As I understand it, Issue 1 was not doing well. The only poll I saw had it losing about 2-1. As proof of the unusual combination of interests, here is a link to an opinion piece written by (in their description) a liberal law professor and a conservative public interest advocate. Joshua Silverstein and Jerry Cox cover some of the empirical data on tort reform and argue this ballot measure would have hurt Arkansas.
Friday, October 26, 2018
In the U.S. Senate, a bill called AV START (American Vision for Safer Transportation Through Advancement of Revolutionary Technologies) has been proposed. The bill would require the National Highway Traffic Safety Administration to regulate design, construction, and performance of self-driving cars — preempting state laws already in place. State and local governments would continue to handle registration, licensing, insurance, and safety and emissions inspections. The bill is similar to the SELF DRIVE (Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution) measure already passed by the House of Representatives. Some safety advocates object to the bill primarily on the grounds it would increase the number of exemptions from safety standards applicable to human drivers. Automated vehicles are expected to save numerous lives by replacing human drivers, whose errors cause the vast majority of traffic accidents, with artificial intelligence. The Washington Examiner has the story.
Thursday, October 25, 2018
In July, a duck boat operating in a Branson, Missouri lake capsized in a storm; 17 people drowned. The families of the deceased victims are seeking damages of $100 million from the two companies operating the boat. Those companies, however, have invoked 167-year-old admiralty law that limits a ship owner's liability to the value of a salvaged vessel and its freight (defendants claim there is no salvage value and no more than $8,000 in parts). Admiralty experts opine the move is unlikely to succeed, but note the companies are also reaching out to the plaintiffs and trying to leverage lower settlement amounts. Bloomberg Law has the story.
Wednesday, October 24, 2018
Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume.
Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory. The series will publish exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general. Submissions should be approximately 12,000 words, inclusive of footnotes. The deadline for submission is .
All accepted papers will be presented at a workshop at Notre Dame’s Global Gateway campus in London in late summer/early fall 2019. The Notre Dame Program in Private Law will cover the expense of contributors’ travel and accommodation.
To submit a paper for consideration, please email John Oberdiek at oberdiek AT law.rutgers.edu.
Tuesday, October 23, 2018
From the Boston Globe's "Talking Points" earlier this month:
New Jersey’s Supreme Court has dismissed more than 500 lawsuits against the maker of an acne drug that caused some patients to develop a gastrointestinal disease. The court ruled Wednesday that Hoffmann-LaRoche’s warning labels for its Accutane treatment were adequate. Plaintiffs have contended the warnings should have said Accutane ‘‘causes,’’ rather than ‘‘is associated with,’’ inflammatory bowel disease. A trial court had dismissed the suits in 2015, but an appeals court had reinstated most of them. The Supreme Court also ruled the 532 product-liability claims from patients in multiple states were properly consolidated in New Jersey, where Hoffmann-LaRoche has its principal place of business.
— ASSOCIATED PRESS
Monday, October 22, 2018
Jan Levine and Wes Oliver are planning a conference at Duquesne on April 26 & 27 entitled "Artificial Intelligence: Thinking About Law, Law Practice, and Legal Education." The CFP is here: Download Artificial Intelligence Conference%2c Call for Proposals%2c 10-3.18
Thursday, October 18, 2018
Marie Reilly has posted to SSRN Catholic Dioceses in Bankruptcy. The abstract provides:
The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot button issues. It offers an analysis of the legacy of the Catholic cases for bankruptcy law, religious liberty, and for the relationships among entities within a Catholic diocese.
Tuesday, October 16, 2018
The wife of a North Carolina doctor has sued her husband, three of his colleagues, and a former secretary in his office. She alleges her husband placed video equipment in their home, obtained prescriptions from his colleagues allowing him to knock her out, and made videotapes of himself sexually assaulting her:
Wanda Leinweber filed the lawsuit claiming that her husband, Clinton Leinweber, used controlled substances that had been prescribed for her by three other oncologists to drug and sexually assault her. She claims Drs. Hyder H. Arastu, Andrew Wenhua Ju and Eleanor Elizabeth Harris wrote the prescriptions in her name or allowed their signatures to be used to write the prescriptions, even though she was not their patient.
The fifth defendant, Sharon L. Grice, is listed as a former secretary in the oncology department. The lawsuit claims that Clinton Leinweber wrote multiple prescriptions for hydrocodone-chlorpheniramine to Grice, who then filled those prescriptions and gave the drugs back to the doctor, who used them to render his wife unconscious.
Hydrocodone-chlorpheniramine is a narcotic cough suppressant.
This week, a Pitt County Superior Court judge denied a motion to dismiss filed on behalf of the three colleagues and former secretary. Those defendants argued they had no duty to the plaintiff because they could not foresee harm to her. Reflector.com has the story.
Monday, October 15, 2018
Friday, October 12, 2018
Stephen Smith has posted to SSRN The Structure of Remedial Law. The abstract provides:
Notwithstanding its practical and, at least in the common law, historical importance, remedial law as a legal category has attracted little attention. The kinds of broad questions that courts and commentators regularly ask about the scope, nature, and aims of substantive law subjects such as contract law and tort law have not been asked about remedial law. This paper addresses this gap. It focuses on four fundamental questions about remedial law’s structure: (1) What is a remedy? (2) Why does the law provide remedies? (3) When are remedies available? and (4) What kinds of remedies are available?
Thursday, October 11, 2018
Bernard Bell has posted companion pieces to the Yale Journal on Regulation's "Notice & Comment." His introduction captures the theme:
On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”). Order, Dkt. 17-1201, 2018 WL 4650382. (The docket sheet is available here.) The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars a negligence claim against the TVA. Many readers of this blog probably spend little mental energy on the FTCA, or the interaction between tort liability and Administrative Procedure Act (“APA”) judicial review. (And you probably expend even less contemplating the TVA or any other government corporation.) This series of two posts previews Thacker and discusses the complementary relationship between ex post tort liability and ex ante judicial review.
Wednesday, October 10, 2018
Antonio Brown allegedly flew into a violent rage back in April, throwing furniture off a 14th story balcony:
The Pittsburgh Steelers star WR has been sued by Ophir Sternberg -- who claims his 22-month-old son was walking around the pool at a high-end apartment complex with his grandfather when suddenly "large objects started to fall from the building many floors above them."
Sternberg claims the items included 2 very large vases, a heavy ottoman and other pieces of furniture -- which landed within a mere foot or 2 from the toddler and his grandfather.
Suit was filed for both assault and IIED. TMZ Sports has the story. Thanks to Shannon Costa for the tip.
Thursday, October 4, 2018
Back in July, I posted that the 3rd Circuit held TSA screeners were not law enforcement officers for purposes of the Federal Tort Claims Act. As a result, claims related to their conduct were barred by sovereign immunity. Now the court has decided to review the 2-1 decision en banc on February 20, 2019. U.S. News has the story.
Tuesday, October 2, 2018
In February, Fordham Law School held a symposium titled “Civil Litigation Reform in the Trump Era: Threats and Opportunities.” The articles are now available:
· “Searching for Salvageable Ideas in FICALA” [Fairness in Class Action Litigation Act of 2017] by Fordham Prof. Howard Erichson
· “Jurisdiction in the Trump Era” by UC Hastings Prof. Scott Dodson.
· “Rights and Retrenchment in the Trump Era” by U. Penn. Prof. Stephen Burbank and UC Berkeley Prof. Sean Farhang
· “The Looming Battle for Control of Multidistrict Litigation in Historical Perspective” by UC Berkeley Prof. Andrew Bradt
· “What We Don’t Know About Class Actions but Hope to Know Soon” by U. Penn. Prof. Jonah Gelbach and Stanford Prof. Deborah Hensler
· “Asbestos Trust Transparency” by Mark Behrens
Monday, October 1, 2018
Abilify, a drug used to treat schizophrenia and bipolar disorder, is the subject of a mass tort suit claiming it leads to destructive behaviors. The drug was brought into the U.S. market by Otsuka America and Bristol-Myers Squibb in 2002. Prior to any warnings in the U.S., European and Canadian warning labels stated that Abilify could unleash "destructive behaviors." On May 3, 2016, the FDA required an addition to Abilify's labels warning of “compulsive or uncontrollable urges to gamble, binge eat, shop, and have sex.” Complaints allege failure to warn and failure to adequately test the drug. The Daily Beast has the story.
Thursday, September 27, 2018
Ken Simons has posted to SSRN Self-Defense, Necessity, and the Duty to Compensate, in Law and Morality. The abstract provides:
What is the proper scope of the right to self-defense in law and morality? How does this right compare to the privilege of necessity? This essay addresses these issues with a particular focus on legal and moral duties of compensation. First, the essay examines how Anglo-American tort law would likely address the defender’s liability in a variety of scenarios, including disproportionate, excessive, and unnecessary force; unreasonable and reasonable mistakes; and use of force against innocent aggressors. It next considers whether private necessity principles that apply to appropriations of private property also apply to actors who intentionally infringe or violate rights of bodily integrity. The essay then turns to the privilege of public necessity, which generally is not, but perhaps should be, accompanied by a duty to compensate, and its relationship to rights of self-defense. The next section explores mistake, justification, and excuse, and considers the question of whether an innocent victim should receive compensation from a reasonably mistaken defender. The final section explains that the notion of conditional fault helps make sense of a strict liability duty to compensate.
Friday, September 21, 2018
Daniel Schwarcz has posted to SSRN Is U.S. Insurance Regulation Constitutional?. The abstract provides:
Insurance regulation is ostensibly the primary domain of the states. In practice, however, the most important and powerful entity in insurance regulation is not a state at all, but a non-profit corporation known as the National Association of Insurance Commissioners, or NAIC. Much of the NAIC’s power lies in its production of various “handbooks” and “manuals” that have the force of law because they are incorporated by reference in state insurance codes. Under this statutory scheme, when the NAIC updates or changes its various manuals, handbooks, or accounting forms, it also changes state insurance regulation. Because the NAIC is a private entity, it produces these various materials that have the force of law without being bound by any safeguards that ordinarily accompany the production of regulation, whether at the state or federal level. Moreover, the NAIC uses its unique accreditation program to directly pressure state legislatures to delegate this authority to it. This Article argues that this scheme violates basic separation of powers and non-delegation principles embedded in every state Constitution. Under any reasonable version of these principles, the delegation of state regulatory authority to a private entity that directly pressures legislatures to make this delegation and whose actions are not reviewable through any formal judicial or administrative process is unconstitutional. Recognizing this conclusion has the potential to improve state insurance regulation by increasing the accountability of state regulators and the NAIC. But it also carries the risk of undermining state insurance regulation by frustrating efforts to promote uniform national standards. However, the Article suggests that state legislatures can enact reforms that simultaneously remedy the unconstitutional structure of state insurance regulation while preserving the many practical benefits that flow from delegating production of regulatory standards to a single, national entity like the NAIC. In particular, they can establish through an interstate compact an entity that is truly independent from state insurance regulators and that is empowered to review the NAIC’s production of regulatory materials that have the force of law.
Monday, September 17, 2018