July 1, 2009

Around the web, July 1

• My other blog, Overlawyered, turns ten years old today -- so far as anyone knows, the oldest weblog on law [Overlawyered]
• Look before you leap, guys: report for British courts suggests weakening loser-pays rule for class/collective actions [Hartley]
• You've probably never heard of this obscure federal appointee, but if EFCA passes he could soon be deciding your firm's labor future [ShopFloor]
• Blawg Review #218 [Adrian Dayton's Marketing Strategy and the Law]
• Fluoride -- yes, the same stuff dentists recommend and that figured in the plot of Dr. Strangelove -- is latest high-profile chemical set for mandatory warnings under California's Prop 65 [Cal Biz Lit, Popehat]
  
• Back pay awards for illegal-alien workers, notwithstanding the Supreme Court's ruling in Hoffman Plastics? [Workplace Prof]

June 30, 2009

Epstein: "How Other Countries Judge Malpractice"

Richard Epstein surveys the ways other systems handle litigation, and medical litigation in particular:

Even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren't the whole story. American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury. Lastly, damage awards for lost income and medical expenses in the U.S. tend to dwarf awards made elsewhere -- in part because governments elsewhere provide this medical care from their nationalized systems. In sum, the medical malpractice system provides incentives for plaintiffs that really do matter. Americans, for example, file claims about 3.5 times more often than Canadians.

It's not clear what we're getting from our exorbitantly expensive way of doing things:

More disturbingly, a careful 1992 study by Donald Dewees and Michael Trebilcock in the Osgoode Hall Law Journal concluded that the frequency of medical malpractice in Canada was about the same as in the U.S. -- for about 10% the total cost. In other words, our costly system doesn't seem to do much to deter malpractice. On medical malpractice at least, Canada does better than we do.

More: Some thoughts from MedRants (citing this 2003 Medical Economics piece by Robert Lowes) and from John Stossel. And Eric Turkewitz takes issue with many of Epstein's contentions, deeming "flat out false" the assertion that courts commonly allow juries to infer medical negligence from injury, and saying Epstein "misses the mark, at least in New York" in asserting that juries need not link up particular negligent acts with injury. Max Kennerly echoes these criticisms and adds others as well. And yet more criticism: Day on Torts.

June 22, 2009

Alberta court upholds soft-injury payout limits

Provincial lawmakers imposed limits on payouts of non-economic damages in cases of strain, sprain and whiplash; as Colby Cosh notes at Canada's National Post, a trial judge proceeded to pluck the rule in question "from its setting of incentives and other regulations, and found that, considered in isolation, it tended to discriminate against the Charter-protected class of soft-tissue injury sufferers. The Court of Appeal was unimpressed by this method of analysis" and reinstated the limit, noting that it was part of a larger scheme of regulation that included advantages for injury victims.

June 4, 2009

New law blog from UK's Times Online

It's called "Law Central".

June 3, 2009

Around the web, June 3

• "Court of Appeals Affirms Exclusion of Junk Science In Mold Case" [Cal Biz Lit]
• "GM Bankruptcy Underway and the Asbestos Plaintiffs' Lawyers Already Have Appeared in Force" [Hartley]
• On Thursday, House Judiciary holds hearing on trial-lawyer-backed bill to crack open settlement confidentiality and protective orders [Wood, ShopFloor]
• Institutional investors vs. Royal Dutch Shell: sign of things to come in European class actions? [Ben Hallman/AmLaw Litigation Daily, Karlsgodt]
• In hot pursuit of drywall: "Florida builders and the not-so-Great Wall of China" [James Thorner, Popular Mechanics via ShopFloor]
• Jump into a schoolyard fight? You probably can't win damages from the school for your injury [Hochfelder]

June 1, 2009

Around the web, June 1

• Uh-oh: British report proposes seriously curtailing centuries-old loser-pays protections for defendants [Times Online]
• Trial lawyers' drive to curtail predispute arbitration agreements endangers employers' interests [Jottings By an Employer's Lawyer]
• Louisiana gasket maker facing torrent of asbestos suits is latest in U.S. Chamber's featured "Faces of Lawsuit Abuse" [video, more]
• Malcolm Carlisle, "Collective Redress Without Collective Action Litigation: The Challenge for Europe" [WLF, PDF]
• "Parade of Amici in Santa Clara Lead Lawsuit" [Cordrey, Lexis/Nexis] Civil Justice Association of California amicus filing is kind enough to cite my writing, see p. 10 [brief, PDF, more]
• MBTA, the Boston-area transit agency, budgets $7 to $9 million a year for settling employee lawsuits [Globe]

May 13, 2009

Schumer's "say on pay"

Stephen Bainbridge criticizes both the substance of the proposal and its replacement of state with federal authority; Larry Ribstein proposes the subversive idea that maybe shareholders also deserve a "say on SOx".

May 8, 2009

Why Canadian banks fared better

Because they were more highly regulated, right? Or maybe not.

May 4, 2009

U.K.: "Auditors plead for help amid fear of lawsuits"

Times Online: "The Big Four -- Deloitte, Ernst & Young, KPMG and PricewaterhouseCoopers (PwC) -- are braced for an increase in legal action from investors and liquidators as the economic crisis continues."

April 30, 2009

"Business groups hit out at 'compensation culture'"

More worries about Americanization of European law, this time in the context of antitrust and consumer-law proposals: "Business groups accuse the Commission's competition department of encouraging a US-style litigation culture in Europe."