Tuesday, November 26, 2019
Monday, November 25, 2019
Friday, November 22, 2019
Basil S Markesinis, John Bell and André Janssen
Since its first appearance in 1986, this magisterial work has won uniform praise from many of the world’s leading comparatists. It has been acclaimed by senior judges and has been cited by the courts of many countries. This new, substantially rewritten and systematically updated fifth edition of the work, contains over 95 leading judgments, most translated in their entirety, along with references to over 2,000 other decisions from Germany and the common law world. While the book remains an ideal tool for teaching comparative torts and comparative methodology, the fact that it has been extensively rewritten makes it an indispensable source of inspiration for those with a professional interest in tort litigation and tort law reform. This edition has paid particular attention to liability for internet activity, medical liability and the protection of personality rights and private life.
Sir Basil S Markesinis QC FBA LLD DR. H.C. (MULT.) is a Fellow of the British Academy, a Foreign Fellow of the Accademia dei Lincei of Rome, the Royal Belgian Academy of Arts and Sciences in Brussels, the Royal Netherlands Academy of Arts and Sciences in Amsterdam, and a Corresponding Fellow of the Academy of Athens and the Académie des Sciences Morales et Politques in France. He is a Bencher of Gray’s Inn.
John Bell QC FBA is Professor of Law at the University of Cambridge.
André Janssen is Professor of Private Law at Radboud University, Nijmegen.
Oct 2019 | 9781509933198 | 728pp | Hardback | RSP:
Discount Price: £120
Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!
Edited by Andrew Robertson and James Goudkamp
This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law.
Andrew Robertson is Professor of Law at the University of Melbourne.
James Goudkamp is Professor of the Law of Obligations at the University of Oxford.
Nov 2019 | 9781509929450 | 504pp | Hbk | RSP:
Discount Price: £76
Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!
This book adopts a novel approach to resolving the present difficulties experienced by the courts in imposing strict liability for the tort of another. It looks beyond the traditional classifications of ‘vicarious liability’ and ‘liability for breach of a non-delegable duty of care’ and, for the first time, seeks to explain all instances of strict liability for the tort of another in terms of the various relationships in which the courts impose such liability. The book shows that, despite appearances, there is a unifying feature to the various relationships in which the courts currently impose strict liability for the tort of another. That feature is authority. Whenever the courts impose strict liability for the tort of another, the defendant is either vested with authority over the person who committed a tort against the claimant or has vested or conferred a form of authority upon that person in respect of the claimant. This book uses this feature of authority to construct a new expositive framework within which strict liability for the tort of another can be understood.
Christine Beuermann is Lecturer in Law at the University of Newcastle.
Nov 2019 | 9781509917532 | 240pp | Hbk | RSP:
Discount Price: £48
Order online at www.hartpublishing.co.uk – use the code CV7 at the checkout to get 20% off your order!
Wednesday, November 20, 2019
For three years, the Pennsylvania legislature has been at odds over extending the statute of limitations for child sexual abuse. The House has repeatedly passed reform bills; the Senate has not. Currently victims of child sexual abuse have until age 30 to file civil suits and age 50 for the filing of criminal charges. There has been widespread agreement about extending those time periods, but there has been conflict over a retroactive window to allow victims to bring claims that are time-barred under current law.
This year, the House has again passed bills, and Governor Wolf has indicated he would sign them. Yesterday, the Senate Judiciary Committee unanimously passed the bills, clearing the way for a floor vote this week. The bills, now expected to pass in the full Senate, would:
- Leave a person who commits serious sexual abuse against a child forever exposed to potential criminal prosecution, giving that crime the lifetime tail that now applies to only the most serious of crimes like criminal homicide. It also expands the window for childhood victims to file civil suits against their abusers to their 55th birthday.
- Amend the state constitution in a way that would allow victims of past childhood sexual abuse a two-year window to file civil suits against those that they say abused them, as well as any employers or institutions that might have attempted to sweep those abuses under the rug.
Pennlive has the story.
Tuesday, November 19, 2019
Joshua Teitelbaum has posted to SSRN Computational Complexity and Tort Deterrence. The abstract provides:
Standard economic models of tort deterrence assume that a tortfeasor's precaution set is convex — usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (e.g., the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor's behavior in the direction of socially optimal care over time more rapidly than strict liability.
Monday, November 18, 2019
Nora Engstrom has posted to SSRN The Lessons of Lone Pine. The abstract provides:
Over the past three decades, Lone Pine orders have become a fixture of the mass- tort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain — or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it’s not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device.
But that’s just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen — and, in places, complicate — our understanding of these profoundly influential phenomena.
Saturday, November 16, 2019
Effective Instruction in Online and Hybrid Legal Education
June 11—13, 2020
University of Arkansas at Little Rock William H. Bowen School of Law
Little Rock, Arkansas
Conference Theme: The future of legal education has arrived, with more and more law schools moving toward teaching part or all of their J.D. program online. During this conference, we will explore how law professors can design and implement methods for teaching effectively in online environments, including both synchronous and asynchronous formats. After an opening plenary examining data regarding the effectiveness of online education, the subsequent plenaries and concurrent workshops will address the following topics in the context of online and hybrid courses and programs: course and program design, assessment of student learning, active learning and student engagement, teaching methods, providing feedback, and collaborative learning.
Conference Structure: The conference will consist of three plenary sessions and a series of concurrent workshops that will take place on Thursday, June 11; Friday, June 12; and the morning of Saturday, June 13. The conference will open with an informal reception on the evening of Wednesday, June 10. Details about the conference will be available on the website of the Institute for Law Teaching and Learning, www.lawteaching.org.
Registration Information: The conference fee for participants is $285, which includes materials, meals during the conference (three breakfasts and three lunches), and the welcome reception on Wednesday, June 10. The conference fee for presenters is $185. Details regarding the registration process will be provided in future announcements.
Friday, November 15, 2019
Tim Lytton has responded to the USSC denying cert. in the case filed by plaintiff families of the Sandy Hook shooting victims against Remington, the manufacturer of the gun used by Adam Lanza in the attack. Here is a sample:
The U.S. Supreme Court on Nov. 12 refused to block a lawsuit filed by the families of the Sandy Hook Elementary mass shooting victims, clearing the way for the litigation to proceed. Remington Arms, which manufactured and sold the semiautomatic rifle used in the attack, had hoped the broad immunity the industry has enjoyed for years would shield it from any liability.
The prospect of more claims from victims of mass shootings puts new pressure on the gun industry to reconsider the way it does business.
My research over the past 20 years on lawsuits against the gun industry examines how the threat of civil liability has the potential to promote safer gun designs, encourage more responsible marketing practice and reduce the risk of illegal retail sales.
Thursday, November 14, 2019
Wednesday, November 13, 2019
In March, the Connecticut Supreme Court ruled, 4-3, that plaintiff families from the 2012 Sandy Hook school shooting could proceed to trial against Remington, the manufacturer of the Bushmaster AR-15 used in the attack. The cause of action was based on the Connecticut Unfair Trade Practices Act for "personal injuries that result directly from wrongful advertising practices." Significantly, the Connecticut high court rejected Remington's defense based on the Protection of Lawful Commerce in Arms Act. The court ruled the suit fell into a “predicate exception [that] permits civil actions alleging that ‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or market of the [firearm], and the violation was a proximate cause of the harm for which relief is sought …’ 15 U.S.C. § 7903 (5) (A) (iii) (2012).
puts the victims’ families in a position where they may be able to try to prove a connection between Remington’s marketing for its Bushmaster AR-15 rifle and the horrific act of violence by a disturbed 20-year-old. The state Supreme Court said they can try; making the connection, lawyers and experts say, is a steep challenge.
“It is a Herculean task,” said Victor E. Schwartz, co-chairman of the public policy practice in the Washington, D.C. office of the law firm Shook, Hardy & Bacon.
Tuesday, November 12, 2019
A memorial event for the late Oscar S. Gray, the Jacob A. France Professor of Torts Emeritus, will be hosted by the University of Maryland Carey School of Law on Tuesday, December 10, at 2 p.m. If you are able to attend, please RSVP at the following link
Monday, November 11, 2019
In the wake of a $265M settlement for 8 deaths and hundreds of injuries in Philadelphia in 2015, Amtrak added a clause to its ticket purchases requiring arbitration. Though the change, made in January, has not received a lot of attention, that may change shortly. Connecticut Senator Richard Blumenthal is looking into the issue, and the House Transportation Committee holds a hearing on Amtrak on Wednesday. Politico broke the story last week.
Friday, November 8, 2019
Eugene Volokh writes:
Yes, a Georgia trial court held, and the jury awarded the neighbors $1.5 million, see https://www.mdjonline.com/news/cobb-jury-tells-abortion-doctor-to-pay-million-for-creating/article_f2719f5a-de46-11e9-b3de-8fab09664f5b.html . As best I can tell from the article and from some of the court papers, the plaintiff neighbors’ claim was chiefly that the clinic attracted a constant stream of protesters, some of whom displayed graphic images of aborted fetuses, some of whom trespassed and accosted visitors to other businesses in the office park, some of whom tried to organize a boycott of the whole office park, and some of them (people suspect) had set a fire and might do it again. (Part of the claim seems also to be that the clinic’s operation violated parts of the office park owners association’s rules, in which all the owners promised not to create nuisances, but let’s set that aside here.)
I’m quite skeptical of this result, as I would be if plaintiffs could sue a bookstore that drew protesters or even attackers because it sold controversial literature, a fur store that drew anti-fur protesters, or a business that drew labor protesters. But I want to make sure I understand the proper nuisance law analysis here; any thoughts from people who have studied nuisance law more closely than I have?
Please respond in the comments.
Thursday, November 7, 2019
Jurors deliberated for 6 hours before awarding $101M in damages to the family of a baby born with brain damage in Oak Park. Attorneys alleged health care providers ignored the baby's external fetal monitoring strips for 6 hours before and during delivery, and experts testified the baby would have had normal functioning if a doctor had been alerted and a C-section performed. The Clifford Law Office represented the family. The Chicago Sun-Times has the story.
Wednesday, November 6, 2019
Nathan Oman has posted to SSRN Private Law and Local Custom. The abstract provides:
One of the striking features of private law in English-speaking countries is the extent to which it is mainly common law. To be sure, many areas of tort, contract, and property are subject to statutes, and civil law jurisdictions demonstrate that private law can be codified. Still, most Anglo-American private law is common law. This chapter explores that relationship. Both private law and the common law fit awkwardly into the dominant theoretical models of law, which emphasize regulation and social control by the state. Thus, the common law has long been criticized for failing to comply with the model of clearly articulated rules that are announced ex ante and applied ex post. The private law, for its part, contains numerous features that make it a poor candidate for a well-designed regulatory regime. Law and economics (L&E) has dominated much of contemporary private law theory. Beginning in the 1980s, however, neoformalist critics focused on features of private law that L&E can explain only awkwardly. These accounts, in turn, provide responses to many of the standard criticisms of the common law. While this movement is encouraging, theoretical challenges remain. Neoformalism, despite its ambition to take the structure of legal doctrine more seriously than L&E, has difficulty accounting for large swaths of private law. Furthermore, these theories have tended to be highly abstract, placing little or no significance on the particularity of the communities over which private law claims authority. In contrast, the common law often evidences a parochialism that focuses on the history or practices of specific communities. A renewed focus on the classical common law theory of the seventeenth and eighteenth centuries offers one way of responding to these weaknesses in neoformalism.
Monday, November 4, 2019
In a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, passed as part of a 2002 law designed to ease an alleged health care crisis, was unconstitutional. The majority found the statute of repose violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums. Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional. Modern Healthcare has the story.
Thursday, October 31, 2019
Sir Geoffrey Palmer has posted to SSRN A Retrospective on the Woodhouse Report: The Vision, the Performance, and the Future. The abstract provides:
The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.
Wednesday, October 30, 2019
At Notice & Comment, Bernard Bell has posted "Fortieth Anniversary: The Commerce Department’s Foray Into Re-Writing Products Liability Law," which describes the history of the Model Uniform Products Liability Act.
Tuesday, October 29, 2019
Conor Dwyer Reynolds has posted to SSRN The Role of Private Litigation in Automotive Recall Process. The abstract provides:
This Article presents an empirical perspective on the role of tort litigation in generating federal automotive recalls. It begins with a brief history of the American automotive recall process, beginning with the creation of the federal agency responsible for handling such recalls, the National Highway Traffic Safety Administration (NHTSA). It then details the contemporary automotive recall process, examining the administrative apparatus within NHTSA that investigates and orders recalls. Next, it provides the traditional view of private litigation's role in the automotive recall process, which sees private litigation's only role in the initiation of automotive recalls as creating the specter of post hoc liability for defect-related injuries. The heart of the paper tests this view by generating a dataset containing automotive recalls issued in 2014, coding each recall for the presence of defect-related litigation filed before the recall was initiated. The data, alongside narratives of each recall that coded positively for pre-recall litigation, demonstrates that the majority of vehicles recalled were preceded by defect-related litigation. This data an alternative view of private litigation's role in the automotive recall process, one that asserts the existence of a more direct, investigatory role for private litigators in initiating recalls.
Monday, October 28, 2019
California has adopted a statute that prohibits the use of race, gender, and ethnicity in the calculation of lost earnings or impaired earning capacity in tort damages. The crucial language of S.B. 41 is:
Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.
Thanks to Nora Engstrom for the tip.