Book Review: Deforming Tort Reform

The storms buffeting the tort system over the past two decades have come in three distinct waves. In the late 1960s, steep increases in the insurance costs incurred by health care providers protecting against negligence claims by patients triggered what came to be known as the medical malpractice crisis. In the mid-1970s, manufacturers whose liability insurance premiums suddenly soared raised obstreperous complaints that called public attention to the existence of a product liability crisis. Finally, other groups whose activities created risks exposing them to lawsuits found that their liability insurance rates had also risen precipitously. A full-blown torts crisis was at hand. The common law of torts attracted a major share of the blame for each of the three crises. Observers blamed the medical malpractice crisis on judicial decisions that expanded the doctrine of res ipsa loquitur by permitting juries to infer negligence from the mere occurrence of an untoward result following medical treatment, and that recognized a duty of due care by physicians to disclose the risk of treatment to patients. Members of Congress, among others, blamed the product liability crisis on state-by-state variations in rules governing the obligations of manufacturers and sellers. Working groups formed to study the issue found the across-the-board torts crisis attributable to the erosion of fault as the basis for liability and the adoption of rules and practices that were allegedly responsible for undue increases in compensatory as well as punitive damage awards. As a consequence, those adversely affected by rising insurance costs demanded, and often achieved, what they called tort reform. Responding to pressure, states enacted pro-defendant legislative adjustments to common law rules of medical malpractice, products liability, and general tort law. By equating tort reform with unidirectional statutory modification of the common law, its advocates succeeded in investing the term with a politically useful, if skewed, meaning. Until the dawn of the present age of tort-related crises, the notion of tort reform was likely to evoke images of a movement to change pro-defendant common law rules so that injured plaintiffs could more easily win judgments or recover full damages. Indeed, through the first half of the twentieth century, the tort system tended to protect the interests of defendants in general as well as particular categories of defendants. What might be called the old tort reform was partly an effort to rectify these imbalances

A Voice of Reason: The Products Liability Scholarship of Gary T. Schwartz

Of my many fond personal memories of Gary Schwartz, the one that stands out most vividly summons from the mists of time an evening in June 1983 at Boston\u27s Fenway Park. It was my last visit to a childhood haunt where I had seen my first professional baseball game in 1941, an occasion that marked the beginning of a lifelong passion for the national pastime. Settled into an excellent seat that faced the storied left-field wall (and brought to mind visions of the large advertisements that covered its surface before it became known as the Green Monster”,), I began to lose myself in the contest that was leisurely unfolding. But I hadn\u27t counted on my two companions, Gary Schwartz and David Owen, who in about the second inning launched into a perfervid, nonstop discussion of some problematic issue raised by the California Supreme Court\u27s holding in Barker v. Lull Engineering Co. I found myself engrossed by their earnest give-and-take and soon rendered totally oblivious to how the Red Sox were faring. It was then I truly realized how much of an academic I had become

Generic Product Risks: The Case Against Comment k and for Strict Tort Liability

The author considers whether strict liability should be imposed for injuries caused by products that pose generic risks--risks that do not derive from flaws in the manufacturing process but from product design or from the very nature of the product. He reviews the American Law Institute (ALI) debate that preceded adoption of section 402A of the Restatement (Second) of Torts and finds the ambiguous meaning of comment k, which deals with unavoidably unsafe products, of little use in determining whether section 402A applies to generic product risks. After examining the policy justifications for imposing strict liability in cases involving design dejects and construction defects, The author concludes that, at least in cases involving generic product risks that were unknown at the time of sale, strict liability should be imposed as a modest incentive to manufactures to improve product safety and as a means of satisfying justifiable consumer expectations

Book Review of Daniel G. Baldyga\u27s: How to Settle Your Own Insurance Claim

How to Settle tries to exploit the same vein mined in spectacular fashion by Norman F. Dacey, who parlayed deep dissatisfaction with the probate system and popular resentment of lawyers into a runaway best-seller. It would seem, up to this point anyway, that people more readily worry about the inevitability of death and its legal consequences than the possibility of personal injury caused by the legal fault of another. Nonetheless, How to Settle does merit some attention, at least within the confines of a specialized journal and under circumstances unlikely to promote a sales backlash, so that all its shortcomings cannot be said to have passed unnoticed

Roscoe Pound, Melvin Belli, and the Personal-Injury Bar: The Tale of an Odd Coupling

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls among the most startling and yet unremarked-upon relationships in the annals of American law. Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled The King and the Dean, in reference to the media\u27s coronation of Belli as the King of Torts , and Pound\u27s lengthy term (1916-1936) at the helm of the Harvard Law School, the chapter advances the claim that the two men came together synergistically in the early 1950s and mobilized a campaign by personal-injury lawyers to resist the enactment of automobile no-fault plans and other proposals that would have replaced common-law tort suits with alternative compensation mechanisms. This Article will first take issue with Witt\u27s story of the Pound-Belli relationship and then offer a different version of the interaction between the Dean and the plaintiffs\u27 trial bar

Alien Registration- Page, Joseph A. (Portland, Cumberland County)

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