Comment on Padilla v. Yoo

Yesterday I reported (here) that the Court of Appeals for the 9th Circuit issued an opinion in which it held that John Yoo, one of the legal architects of the Bush administration policy on torture, is entitled to qualified immunity because - according the the opinion - "it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture.”

Today, over at PrawfsBlog, the author of an amicus brief in the case on behalf of legal ethics scholars in support of Padilla has posted a brief comment on the case arguing that the court's analysis missed the mark. He also explains that "[a]mong Yoo's objections to Padilla's suit was his view that the suit amounted to a complaint that he gave “incorrect” or “erroneous” legal advice as a government attorney.   The amicus brief responded directly to this contention by arguing that “Yoo did not merely give ‘wrong’ advice in performing customary legal duties," rather "he acted outside of his legal role altogether by participating directly in the formulation of policy that gave rise to the deprivation of [Padilla’s] constitutional rights and by creating legal cover for unlawful detention and interrogation policies.”

You can read the full comment here.

Court of Appeals holds John Yoo is immune from liability for his role in justifying torture

The Court of Appeals for the Ninth Circuit has just issued an opinion holding that John Yoo is immune from a lawsuit by a U.S. citizen who said he was tortured while detained in a military brig.  Yoo, as I am sure you remember, was one of the lawyers who designed the arguments used by the Bush administration to support the legality of its use of torture.  The opinion of the court is available here.

 For more on the story go to the blog of the Supreme Court, The Wall Street Journal law blog, Legal Ethics Forum and the New York Times.

A more interesting question that is not addressed by this case, though, is whether Yoo's conduct was unethical.  There has been a lot of discussion (and there is a lot of literature about it out there) already.

For a great discussion of the story on the role of the attorneys in the Bush administration you should watch the show "Cheney's Law" which is available here, particularly starting with chapter 4, which starts about 25 minutes into the show.  Here are chapters 4, 5, 6 and 7 :

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Watch Cheney's Law on PBS. See more from FRONTLINE.

Supreme Court decides Mohamad v. Rajoub: no cause of action against corporations under Torture Victim Protection Act

As you probably know by now, I have been following the developments in the two cases before the US Supreme Court on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute (Kiobel v Royal Dutch Petroleum) and the Torture Victim Protection Act (Mohamad v Rajoub).  For more details, go here and scroll down to see multiple posts on the subject.

In  Kiobel v Royal Dutch Petroleum the Court of Appeals for the Second Circuit held for the first time that corporations can't be sued under the Alien Tort Statute.  Likewise, in Mohamad v. Rajoub, the DC Circuit Court held that corporations could not be liable under the TVPA (even though in a different case it held they can be sued under the ATS).

Although some courts have agreed with Rajoub, other Circuit Courts have rejected Kiobel's reasoning and it remains the only case to have decided the issue in favor of the corporate defendants (under the ATS).  Here is a list of the relevant cases and how they were decided.

Last week, the Court announced its decision in Rajoub (under the name Mohamad v. Palestinian Authority) holding that plaintiffs do not have the right to sue corporations or other entities under the statute.  The opinion is available here. All other relevant documents in the case are available here.  The oral argument is available here.

Here is a list of comments on the case, courtesy of the SCotUS blog:

For the SCotUS blog, Lyle Denniston reports that the ruling “almost certainly means there will be few cases in U.S. courts seeking damages for acts of torture overseas.” Other coverage of the opinion comes from Greg Stohr of Bloomberg, Nina Totenberg of NPR, Mark Sherman of the Associated Press, James Vicini of Reuters, Adam Liptak of the New York Times, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Barbara Leonard of Courthouse News, Mike Sacks of the Huffington Post, Jess Bravin of the Wall Street Journal Law Blog and the Wall Street Journal (subscription required), and Debra Cassens Weiss of the ABA Journal.  At the Wall Street Journal Law Blog, Jess Bravin also notes that the opinion incorrectly referred to the respondent, the Palestine Liberation Organization, as the “Palestinian” Liberation Organization.

In addition, there are comments in the Wall Street Journal law blog, and today's opinion analysis at the SCotUS blog here and here.

Should pet owner be awarded non economic damages for death of pet? Court in Colorado says yes.

I have argued before that I really don't see why owners should not have the right to try to claim personal/emotional injuries due to the deaths or injuries to their pets. See here. However, although there may be a few cases out there that have recognized these types of claims, courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal or for injuries based on intentional conduct by the defendant.  Rarely do you see claims allowing for non economic damages in cases based on negligence.

A recent case in Colorado has now brought the issue back to the forefront.  In this case, the plaintiff will receive $65,000 from the defendant for the death of her dog after the defendant negligently let the dog out of the house and the dog was hit by a car. 

For more on the story go here and here.

HR 5 bill limiting patients' rights approved by the House -- UPDATED

Day on Torts is reporting that the House of Representatives has passed HR 5 by a vote of 223-181.   Ten Republicans voted against the legislation, and 7 Democrats crossed over to support the Republicans.  Four Republicans voted "present."  As I have discussed many times before (see here)  the bill attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. It also provides protection to pharmaceutical and medical devices companies in cases of injuries caused by defective products.

UPDATE April 13:  AboutLawsuits has a comment here.

UPDATE April 20:  The Blog of the Legal Times has more on the story (and some interesting comments) here.

Proposed federal legislation in response to Pliva v Mensing would allow litigation against generic drug manufacturers - UPDATED

Democrats in the Senate and House introduced companion bills Wednesday that would permit generic drug companies to update warning information about the drugs they manufacture, a change that could allow patients to sue the companies for failing to warn about the risks of taking their drugs.  The New York Times has the details here.

UPDATE:  4/20/12:  the FDA law blog has more on this story here.

Comment on "apology and early settlement offer" program in Massachussets

The PopTort is reporting today on a new medical malpractice “apology and settlement offer” program set to begin at seven Massachusetts hospitals which would allow hospitals to encourage victims of malpractice to accept an apology and compensation in exchange for a release of liability.  The proposal can be beneficial to eliminate costly and time consuming litigation but it could also result in very unfair results for the victims.  You can read the full comment here. 

Comment on early settlement offer proposal

About two weeks ago I reported that the New Hampshire Senate has adopted an early offer approach to medical malpractice that would allow a patient to initiate the early offer process.  See here. 

My friend Professor Chris Robinette (Widener School of Law) has now published a short response to the most common arguments against early offer programs here.

He does a good job explaining the issues and argues that programs like this one work to offer an alternative to litigants who would prefer a faster way to resolve their disputes even though they might get a higher recovery if they choose to litigate.   As I said in my original post, I like the fact that the proposal is not mandatory - if it were I would be completely opposed to it.  However, I am not sure how effective the proposal will be because the caps it sets on damages seem (at least to me) to be too low.

Clifford symposium on tort law and policy

Every year, De Paul law school hosts a symposium on tort law and policy.  The topic and speakers change but the quality is always excellent.  I have attended almost every year and have always enjoyed it.  The details of this year's program are now available here.  It is scheduled for April 26 and 27.

Tennessee Senate rejects tort reform bill

Day on Torts is reporting that the Tennessee Senate Judiciary Committee has voted to reject a tort reform bill that would have eliminated liability for punitive damages for employers for conduct of their employees (with a few exceptions).