Tort Law & Social Equality Project lecture series

 I just recently learned of an online lecture series on advanced torts topics.  The series is hosted by a Canadian organization called the Tort Law & Social Equality Project, whose goal is to foster an awareness of the many inadvertent ways in which legal rules within tort law reinforce and perpetuate systemic social inequalities.  Their website is available here.  From there you can click on the “speaker series” tab if you want to watch the lectures live, or you can watch the videos later on their YouTube channel, here. 

 

Recent law review article compares cost-benefit analysis and consumer expectation as the tests for determining design defects

In his article An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020), Aaron D Twerski, one of the reporters of the Restatement (Third) of Torts: Products Liability, compares the difference between the risk-utility test applied in most states (which relies on having the plaintiff prove a "reasonable alternative design (RAD)") and the consumer expectations test followed in 17 jurisdictions to determine if a product has a design defect.   He concludes that, regardless of the approach used, the vast majority of cases include proof of a RAD.

Twerski theorizes that using proof of a RAD: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, leads to higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations.  

For a summary of the article go here.

New article refutes arguments regarding "defensive medicine"

In a new article entitled The Paradoxes of Defensive Medicine, authors Michael Saks & Stephan Landsman review the evidence behind the belief that medical malpractice claims lead to defensive medicine and find little support for it.  This is not surprising for those who follow the literature and history of the "tort reform" movement, of course, but it is always good to see new articles on the issue.  The abstract of the article states, in part:

For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted by the healthcare industry even though they imply that most providers routinely engage in healthcare fraud and violate their own ethical rules. 

If you subscribe to SSRN, you can download the article here.

Lawsuit Blames Sorority Hazing for Athlete's Suicide

I recently published a short article on two recent cases on whether universities have a "duty to help" students by preventing injuries caused by other students or by protecting students from injuring themselves (including by attempting to commit suicide).  You can read it here.

With this in mind, I found it interesting to read that FindLaw is reporting that the mother of a Northwestern University basketball player that took her own life in early 2017 has filed a lawsuit in the Northern District of Illinois court alleging that Jordan's sorority's hazing motivated her suicide.

I have not seen the complaint itself so I am not sure of the details, but from the stories I have read in the press, it appears the lawsuit is against the sorority and not against the University.

The most cited law review articles of the last 25 years

Professor Ted Sichelman (University of San Diego School of Law) has published an interesting list of the most cited tort related law review articles published within the last 25 years. You can see the list and an explanation of the methodology used to create the list here.

For a similar list you can check out Fred R. Shapiro and Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110 Mich. L. Rev. 1483 (2012).

Thanks to Ted for the update!