May 11, 2008

Defunct causes of action, cont'd

The fascinating article on "Why Torts Die" that Ted points out, aside from its intrinsic interest, is also relevant to an issue of great current importance, namely the extent to which it is permissible to roll back the scope of existing common law liability without fear of committing any constitutional violation.

As readers of this site probably know, the organized plaintiff's bar has been extraordinarily successful in getting state judges to strike down, as inconsistent with their states' constitutions, liability limits enacted by the elected lawmakers of their states. The grounds for such invalidation vary from state to state -- sometimes the reforms are declared at variance with "open courts" clauses of state constitutions, on the theory that to abrogate a long-recognized cause of action (or even curtail modestly the damages available under it) somehow amounts to abrogating the very right to redress grievances as such. Sometimes a curious theory of separation of powers is advanced in which the setting of liability rules is regarded as somehow internal to courts and not to be meddled with by mere legislators (of course those legislators are welcome to add new grounds for liability, so long as they don't narrow old ones).

Of course, the barest acquaintance with American legal history suffices to make clear that many damage actions once recognized as valid under common law have been abolished both by courts themselves, and by legislatures with the later approval of courts. Perhaps best known are various employment actions. Employees formerly had a direct right to sue employers over job injuries, which was largely abolished as part of the enactment of workers' comp laws; and employers once had a direct right to sue over certain costs inflicted by labor unrest, such as the blockage of plant gates by picketing, which was largely abolished by New Deal-era labor laws.

Those opposed to legislative encroachments on tort liability sometimes claim that the difference is that in the employment cases, liability was abrogated as part of an overall trade in which the party deprived of rights to sue was accorded valuable alternative rights: thus the injured employee could pursue benefit payments under workers' comp laws, while the blockaded employer might press a complaint before the National Labor Relations Board and in other ways might benefit from the legal regularization of labor relations. By contrast, legislative curtailment of (say) non-economic damages in medical malpractice cases is not ordinarily offset by the creation of any new no-fault scheme of compensation. Thus (it is argued) courts should feel free to strike down such damage limits, since they form no part of a comprehensive legislated scheme providing alternative benefits for patients.

As I've been pointing out for years, there's a big problem with the theory that a tort somehow cannot be abolished or curtailed in the absence of a legislated alternative compensation scheme. Earlier in the Twentieth Century, state legislatures took a prominent hand in the abolition of the once thriving set of torts known as "heartbalm", actions that included breach of promise of marriage, alienation of affections, and criminal conversation (sexual relations with complainant's spouse). No alternate system of legislated compensation whatsoever was provided for jilted brides, cuckolded husbands and so forth; their losses were simply left to lie where they fell. Nor did courts seize on this circumstance to invalidate legislative curtailments of heartbalm and proclaim that once a common law tort, always a common law tort.

Kyle Graham's article serves as a very handy compendium of other once-valid actions that have faded away, or been abolished perforce, with no suggestion that anyone enjoyed a constitutionally protected right to go on suing under them. They range from suits against taverns by spouses of alcoholics seeking compensation for their lost earnings (popular in the heyday of Temperance) to the old nuisance action of "ancient lights" (against the erection of nearby sunlight-blocking buildings), which retained vitality in Britain but mostly not here. Ironically, the list of defunct torts also includes the old common law right to sue the perpetrator of champerty and maintenance -- that is, to sue a third party who furnished one's opponent's the means to keep his lawsuit going. The AAJ/ATLA lawyers who assail as unthinkably outrageous the abolition of any and every common law right to sue are unlikely to go to bat for the revival of that one.

May 10, 2008

"Why Torts Die"

Prosecutor Kyle Graham, a recent Yale Law graduate, has an interesting piece in the most recent Florida State University Law Review:

Alienation of affections. Claims for insult. Maintenance and champerty. Suits against saloonkeepers for spousal alcoholism. These are just a handful of the many torts that have disappeared, or are presently passing into history. Why Torts Die examines why these and other torts have vanished or are in danger of extinction. The central thesis of Why Torts Die is that the collapse of a tort typically owes to a confluence of compromising conditions or events. Changes in the ambient cultural atmosphere may threaten a tort theory, but the effects of these changes will be magnified or mitigated by several other factors: the nature, quality, and volume of critiques directed against the tort; the interests and limitations of the audiences that decide whether to retain or reject the cause of action; the relative power and influence of the tort's opponents and supporters; the availability and desirability of alternatives to the tort; and the intrinsic qualities of the threatened claim itself. To flesh out the hypothesis that most defunct torts haven't simply fallen victim to sudden cultural downdrafts, Why Torts Die offers three case studies, each detailing how a gravely endangered tort or torts came to find itself in that condition. This review of the diminutions of the tort of insult, of obesity lawsuits, and of the heartbalm torts (alienation of affections, breach of promise to marry, criminal conversation, and seduction) suggests that the disappearance of a tort is typically a complicated affair, implicating several of the factors discussed above.

May 7, 2008

Smokestacks and autism

Orac at Respectful Insolence looks into a study that made for recent alarmist headlines, and finds that it doesn't check out very well.

May 5, 2008

Thanks (and welcome) to guestblogger Carter Wood

After a couple of weeks taken off to tackle a writing deadline, I'm back. I can only applaud the virtuosic performance here in the meantime from guestblogger Carter Wood, who has recently transformed the NAM's Shop Floor into the must-read blog destination for up-to-the-minute and brightly written coverage of legal reform news (as well as a range of other business and Washington topics: tax, labor, regulation, and more).

Better yet, Carter has agreed to stay on and continue his efforts as an ongoing Point of Law contributor. We can't expect him to go on contributing (cross-posting or otherwise) at quite the Stakhanovite (Reynoldsian?) pace he's achieved over the last two weeks, but if his past record is any indication, all of it will be eminently worth reading.

April 30, 2008

That $54 Million Lawsuit Against Best Buy, Dismissed....

Crossposted from Shopfloor.org. This might fit better at Overlawyered, but it had become such a flash in the cause celebre, thought a mention here was warranted.

Raelyn Campbell had her 15 minutes of fame but lost out on the $54 million she claimed she deserved. A Washington, D.C., Superior Court judge has dismissed her lawsuit against Best Buy (a fact we have not seen reported elsewhere).

Campbell is the D.C., woman who sued the electronics retailer after she took her laptop in for repairs to the Tenleytown store (that's a neighborhood in northwest D.C.) and the computer went missing. According to her account, Best Buy wasn't up front with her about losing the device and then tried to buy her off with coupons and settlement offers. That and her supposed concerns about identification theft led her to file a $54 million suit in D.C. Superior Court last November.

The very ridiculousness of the amount -- which mimicked the $54 million suit by D.C. Judge Roy Pearson against his drycleaners for misplaced suit pants -- undermined any legitimacy of her grievances.

Continue reading   That $54 Million Lawsuit Against Best Buy, Dismissed....

April 22, 2008

Prebuttals, Insults and Intellectual Honesty

The U.S. Chamber of Commerce's Institute for Legal Reform on Wednesday is releasing its 2008 Lawsuit Climate report, an annual exercise in which the ILR surveys in-house counsels on their perceptions of how reasonable and balanced each state's tort liability system is. (The 2007 survey is available here.) It's one of three prominent reports/ratings that attempt to quantify state tort climates, the others being the Pacific Research Institute's Tort Liability Index and the American Tort Reform Association's Judicial Hellholes report. Different methodologies, different results, but all have their merits, and taken together they paint a pretty good picture of a state's civil litigation environment.

To the Chamber's contribution the American Association for Justice responds with a PR blunderbuss, a news release issued today before anyone over there has even seen the report.

Yes, it's one of these prebuttals that some PR expert decided was an effective way to pre-spin the media. Presumably. The headline: "AAJ: U.S. Chamber 'Study' Part of Extreme Corporate Agenda to Destroy Civil Justice System"

Did we mention that THEY HAVEN'T READ THE STUDY?

It's the usual ad hominem: The Chamber represents corporations and corporations are evil, especially insurance companies. As are the counsels they surveyed: "The 'study' is based on a survey of corporate defense lawyers from multi-million dollar corporations who are paid to avoid accountability for their misconduct and negligence."

Really? Every single one of them? Is that part of their job description?

We're used to the over-the-top rhetoric and personal attacks, and the intellectual dishonesty is par for the course. But you have to wonder -- As a news release, this document is aimed at the media. Does the AAJ think all reporters are that stupid? If this release came across my newsroom computer, I'd be pretty insulted.

Supreme Court Refuses to Hear Exxon Appeal of $112M Individual Property Damage Award

The Dallas-Fort Worth Star Telegram has the AP report on a declined cert petition. Normally such petitions are not very worthy of note, but when an individual receives $112 Million in damages eyebrows are naturally raised.

The case began in 1997 when a former Louisiana judge, Joseph Grefer, and his family sued Exxon, alleging that a contractor working for Exxon had contaminated the family's land with radioactive waste. The contractor was entrusted with cleaning pipes for Exxon Mobil and other companies and left the waste, which occurs naturally as a result of oil and gas production, on the judge's property. None of the Grefers were sickened by the waste, and the only damage claimed was property damage. Nonetheless, a Louisiana jury awarded the Louisiana judge $1 billion in punitive damages and $56 million in compensatory damages. On appeal the punitive award was reduced to twice the compensatories, or $112 million. [How much was this judge's land worth, anyway?]

Lawyers for the Grefers had urged the court to reject Exxon's appeal because the company had already paid the damage award (to avoid huge interest payments).

April 13, 2008

Antitrust damages to state economies

The implacable in pursuit of the unknowable? In Connecticut, Virginia and Nevada, legislation provides that state legal officers may sue antitrust offenders for the notional general damage done to the states' economies by the economic offenses charged. The Connecticut Supreme Court on that basis has just green-lighted AG Richard Blumenthal's legal action against insurance broker Marsh & McLennan, rejecting Marsh's argument that the economic damage theory inherently involves double-counting of damages already included in private parties' right to sue. (Legal NewsLine; opinion, PDF).

P.S. Correspondent Skip Oliva of the Voluntary Trade Council writes, "Of course, no state AG would ever consider the possibility that antitrust itself does far more damage to the economy by removing private capital from the market."

April 9, 2008

"Smoke test for Supremes"

Our own Jim Copland is in the New York Sun today on Altria Group v. Good, in which the Supreme Court may decide whether federal labeling law pre-empts lawsuits claiming that it is a deceptive trade practice for tobacco companies to promote cigarettes as "light" or "low tar and nicotine."

Greenspan's case

There's a big effort to blame the former Fed chairman for the rise and fall of the housing bubble -- though in fact comparable run-ups in housing prices went on simultaneously in many other advanced countries, with their own monetary policies and systems of housing finance regulation. His response?

The problem is not the lack of regulation but unrealistic expectations about what regulators are able to prevent. How can we otherwise explain how the UK's Financial Services Authority, whose effectiveness is held in such high regard, fumbled Northern Rock? ... Even with full authority to intervene, it is not credible that regulators would have been able to prevent the subprime debacle.

Martin Wolf argues in the FT that central banks "can surely lean against the wind" even if they cannot eliminate bubbles. I know of no instance in which such a policy has been successful.

Whole thing here.