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tort reform

…circa 1897,” in Chicago. It is well recognized that a legal culture of entrepreneurial claims-making and suit-filing, especially as regards road and transport mishaps, had emerged in some large American cities by the early Twentieth Century. But its development in all likelihood can be traced to even earlier points than that, perhaps stimulated in part by the widespread electrification of urban streetcar lines (previously animal-drawn) in the early 1890s. [Kyle Graham]

Fifty years ago yesterday the Supreme Court handed down its greatest tort reform decision — just for you. [Related 2003 Baseball Crank post on federalism.]

Fifty years ago today…

by Walter Olson on January 7, 2014

…the U.S. Supreme Court heard argument in what was to become one of its most celebrated tort reform decisions. A profitable national manufacturer had been sued in a distant rural state in which it was decidedly unpopular, resulting in a runaway jury verdict which it sought to challenge on appeal. Pointing out the disadvantages of unpredictable and locally variable tort standards, the corporation’s lawyers pushed for a more uniform and modern standard of liability suited to a nationwide market, which the high court agreed unanimously to develop for the occasion and impose on state courts. And ever since 1964, the winning party in the case — that is to say, the New York Times Company — has taken a sympathetic editorial interest in the plight of other national businesses subjected to runaway verdicts in local courts.

Well, OK, maybe not that last sentence. But the rest of it did happen, in the celebrated case of New York Times v. Sullivan.

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How tort law harms privacy

by Walter Olson on December 2, 2013

Per Eugene Volokh‘s new article, a wide range of actors from landlords to employers to colleges to product manufacturers correctly see themselves as being at legal risk if they don’t surveill, probe, and share information about those they deal with:

Gathering or disclosing information about people’s backgrounds, tendencies, and actions is increasingly inexpensive, and increasingly effective at helping avoid, interrupt, or deter harm. …Failure to take those precautions thus becomes negligent. … Failure to provide camera surveillance is now a common claim in negligence cases.

An especially fertile source of such incentives is the duty (much expanded by modern developments in liability law) to take reasonable precautions against criminal acts by others. It will soon be feasible at low cost, if it is not already, for automakers to install electronic components in new cars that send a warning communication — to police monitors, for example — when a motorist tries to drive at very high speed. What will happen after automakers begin to be sued after accidents for not installing such components?

They’ve reconvened, trying to enact a set of litigation reforms the state’s high court won’t just strike down [The Oklahoman, Tulsa World, earlier]

Some had urged the state’s highest court to abandon the old common-law standard in favor of a comparative negligence standard, but the court said any such move will need to come from the Maryland legislature. [Daily Record, earlier; Coleman v. Soccer Association of Columbia]

I’ve got a guest column up at the widely read PowerLine blog, my first there, countering misleading criticisms of the Protection of Lawful Commerce in Arms Act in the Washington Post and elsewhere. Rep. Adam Schiff (D-Calif.) is trying to rally efforts to gut or repeal PLCAA in line with the critics’ charges, but his efforts have picked up little traction thus far.

P.S. Thanks to Eugene Volokh for the link and kind words (“I generally quite agree with it, except that the title (‘six myths about the law that bans gun lawsuits’ is imprecise — the law bans many lawsuits against gun manufacturers and dealers, but by no means all,” citing the law’s sec. 4(5)(A).)

Torts roundup

by Walter Olson on February 13, 2013

  • Officials: “36% of car-insure claims bogus” in NYC [NY Post]
  • Unseen but looks promising: “Cultures of Tort Law in Europe” [Journal of European Tort Law via TortsProf]
  • “The Limits of Texting Accident Lawsuits” [Ronald Miller]
  • Lawmakers wonder whether there’s some way around Missouri Supreme Court’s “no med-mal reform on our watch” attitude [Kansas City Star]
  • Trial lawyers unhappy as Michigan high court toughens standards on slip-fall suits [AP/Detroit News]
  • Fast track: Illinois legislature moves to increase fees lawyers can recover in med-mal cases [Madison-St. Clair Record]
  • New Jersey municipalities have stake in litigation reform [NJLRA]

A new empirical study from Joanna Shepherd (Emory) in the Vanderbilt Law Review looks at the question (via Chris Robinette/TortsProf). Among the conclusions:

My empirical results indicate that several reforms that restrict the scope of products liability have a significant impact on economic activity. Statutes of repose that limit the time period for which manufacturers are liable for product defects, comparative negligence reforms that reduce damage awards when plaintiffs engage in negligent activity, and reforms that eliminate strict liability for nonmanufacturer product sellers are all associated with statistically significant increases in economic activity. Specifically, my results suggest that these reforms increase the number of businesses, employment, and production in the industries that bear most of the products liability claims: the manufacturing, retail, distribution, wholesale, and insurance industries.

In contrast, other reforms have a weak effect on economic activity. My results suggest that caps on noneconomic damages and reforms to the traditional collateral source rule are only weakly associated with increases in economic activity. Meanwhile, caps on punitive damages and reforms eliminating joint and several liability are weakly associated with decreases in certain measures of economic activity.

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Torts roundup

by Walter Olson on November 27, 2012

  • Adventures in causation: Per $19 million Mississippi verdict, fumes from leftover gasoline caused birth defects, asthma [Insurance Journal]
  • Legal academia watch: lawprof proposes massive expansion of liability for parents [TortsProf]
  • University of Virginia’s torts giant: “A Tribute To Jeffrey O’Connell” [U.Va. Dean Paul Mahoney, Virginia Law Review (PDF) via TortsProf]
  • “Proposed civil justice reform in Canada” [Ted Frank]
  • “Town Owes $10M To Pupil Paralyzed In School Beating” [New Jersey Law Journal; Irvington, N.J.]
  • Businesses steer clear of Philadelphia litigation climate [Jim Copland, Inquirer; Trial Lawyers Inc. update]
  • Longtime West Virginia attorney general Darrell McGraw, disliked by business, toppled in re-election bid [Charleston Gazette-Mail]

Torts roundup

by Walter Olson on August 13, 2012

  • “Targeting the red plastic gas can”: how product liability bankrupted Oklahoma manufacturer Blitz [editorial, earlier]
  • Summers v. Tice, the famous “which hunter shot him?” California tort case, re-examined [Kyle Graham, Green Bag/SSRN]
  • Paul Taylor of House Judiciary makes a case for the constitutionality of broad federal tort reform [Suffolk University Law Review via Point of Law]
  • New Ken Feinberg book on compensation plans in lieu of litigation [Scheuerman, TortsProf]
  • Hot propaganda: filmmaker Susan Saladoff faces off against Victor Schwartz on “Hot Coffee” [TortsProf]
  • Studies of tort reform’s effects underestimate effects of durable reforms by mixing them in with the many that are struck down by hostile courts [Martin Grace and Tyler Leverty, SSRN via Robinette, TortsProf]
  • Membership in AAJ, the trial lawyers’ lobby, said to be on the decline [Carter Wood, PoL]

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July 8 roundup

by Walter Olson on July 8, 2011

January 28 roundup

by Walter Olson on January 28, 2011

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December 21 roundup

by Walter Olson on December 21, 2009

  • “CBO Stands By Its Report: Tort Reform Would Save Billions” [ShopFloor; our weekend post on what actually wound up in Reid bill]
  • “Indianapolis Tacks on Steep Fines for Challenging Traffic Tickets” [Balko]
  • “Fugitive Located Inside Homeland Security Dept. Office” [Lowering the Bar]
  • Assumption of risk? New York courts field legal complaints over mosh dance injuries [Hochfelder]
  • Company claiming patent on Ajax web technique is suing lots of defendants [W3C, ImVivo via @petewarden]
  • Why Arizona voters still back Sheriff Joe [Conor Friedersdorf/Daily Dish, von Spakovsky/NRO (deploring "persecution" of Arpaio), Greenfield]
  • “Are Breast Implants and Donated Organs Marital Assets?” [Carton, Legal Blog Watch]
  • “Disbarment Looms for First Attorney Convicted Under N.J. Anti-Runner Law” [NJLJ]

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November 23 roundup

by Walter Olson on November 23, 2009

Commentary’s Jennifer Rubin notices:

A friend points out a little nugget of absurdity and political mendacity in the Pelosi health-care bill. Remember Obama’s effort to try a “test” for tort reform? (We don’t actually need a test, since it has worked to lower medical malpractice coverage and help increase access to doctors in states that have tried it.) Well, Pelosi’s bill has an anti-tort-reform measure. On pages 1431-1433 of the 1990-page spellbinder, there is a financial incentive for states to try “alternative medical liability laws.” But look — you don’t get the incentive if you have a law that would “limit attorneys’ fees or impose caps on damages.”

In other words, Congress is providing a financial incentive to uncap damages. Marvelous.

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I don’t agree with every one of the suggestions proposed by this Chamber of Commerce Institute for Legal Reform document authored by Victor Schwartz and Cary Silverman, but I agree with more than 90% of them, and it’s a good starting point for any discussion of tort reform.

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I summarize my recent testimony on the Hill in today’s American:

As I discussed in recent testimony on Capitol Hill, if one takes conservative estimates from these economic studies and adds it all up, the total cost to the economy from excessive litigation can be estimated to be between $600 billion and $900 billion a year, the vast majority of which is simply wealth destruction. That is between 4 and 6 percent of GNP, a tort tax of between $8,000 and $12,000 a year for an average family of four.

The entire hearing is on YouTube, or you can watch a highlight reel.

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