Successor Liability for Defective Products: A Redesign Ongoing

Successor products liability – cases where an injured plaintiff sues a successor business for a defective product sold by a predecessor business -- is a doctrine still under development in the courts, and the doctrine’s unsettled nature seems destined to continue over the next several years. Jurisdictions may be roughly divided into three categories. Several take a restrictive approach toward liability in such cases (sometimes called the “traditional approach”), allowing it only when relatively rare exceptions to a general no-liability rule apply. Several other jurisdictions are less restrictive with successor products liability, allowing recovery under the “product line” or “continuity of enterprise” approaches in addition to the traditional exceptions allowing liability. A third set of courts, also represented by several jurisdictions, have not yet firmly established an approach. Following a 1999 law review article by one of this article’s authors supporting the less restrictive product line and continuity of enterprise approaches, and some subsequent judicial support for the article’s position, some scholars responded that the less restrictive approaches are unfair to predecessor businesses in cases involving unforeseeable risks. This article challenges such concerns, demonstrating that in practice courts rarely impute knowledge of unknowable risks even under strict products liability, and that truly unforeseeable risks are in any event relatively rare. The article also analyzes recent trends in successor products liability, finding a mixed picture with some jurisdictions recently adopting one or both of the less restrictive approaches, and other courts adopting or hinting that they may adopt the restrictive traditional approach. The article concludes that none of the approaches seem likely to become a strong majority doctrine in the near future, but that corrective justice and public policy concerns favor utilizing the less restrictive approaches

Focusing on Human Responsibility Rather than Legal Personhood for Nonhuman Animals

We should focus on human legal accountability for responsible treatment of nonhuman animals rather than radically restructuring our legal system to make them legal persons. This essay, provided at the kind invitation of the Pace Environmental Law Review (PELR) and Steven Wise, President of the Nonhuman Rights Project, Inc., outlines a number of concerns about animal legal personhood. It does so primarily in the context of the plaintiff’s brief in The Nonhuman Rights Project, Inc. v. Lavery, filed in the New York Supreme Court, New York County. The first Lavery lawsuit (Lavery I) was filed in Fulton County in late 2013. After Lavery I was dismissed at the trial court and appellate levels, the second Lavery lawsuit (Lavery II) was filed in New York County in late 2015. The Pace Environmental Law Review is publishing a memorandum of law by Steve Wise and Elizabeth Stein in support of the petition for habeas corpus in Lavery II along with an amicus brief by Professor Laurence Tribe supporting the appeal of Lavery I and this essay opposing the lawsuit. The briefs will be published in a future issue of PELR

International Tobacco Litigation\u27s Evolution as a United States Torts Law Export: To Canada and Beyond?

In the late 1990’s, the states’ healthcare reimbursement lawsuits against the tobacco industry were settled for approximately $246 billion. In the wake of this enormous settlement, many similar lawsuits were initiated in other nations or by other nations. Most of these early healthcare reimbursement lawsuits failed. However, in 2005, the World Health Organization Framework Convention on Tobacco Control was finalized by over 150 nations, and today has been ratified by 168 nations. The Framework encourages nations to consider tort litigation against tobacco sellers as a way to limit tobacco usage. Canada’s provinces have been particularly aggressive in seeking to use healthcare reimbursement lawsuits inspired by the United States litigation as a tool for tobacco control. This Article considers ways in which United States-style litigation against tobacco companies might be both helpful and hurtful for other nations

Considering the Private Animal and Damages

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have––in dramatic fashion––moved from academic debate to high-profile litigation. Focusing on two recent cases, this short Article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The most recent prominent case, Justice v. Vercher, is ongoing litigation seeking to designate a severely neglected horse as the plaintiff in a tort damages lawsuit against the horse’s owner. The second case, Naruto v. Slater, unsuccessfully sought to designate a monkey as the plaintiff in a copyright infringement lawsuit. Both cases illuminate significant implications of seeking to designate animals as plaintiffs in private law damages lawsuits. Thankfully, societal concern about animal welfare is rapidly increasing, although more needs to be done to protect animals. But efforts like Vercher and Narutorepresent a societally harmful approach to animal protection. Such cases may continue to fail in the short term, but regardless of short-term failure or success, analogous lawsuits are nevertheless likely to proliferate over time because the stakes are so high––success could be a back door to breaking down legal barriers between humans and animals. Further, as societal views regarding animals quickly evolve, the possibility of misguided rulings creating dangerous animal legal personhood through such lawsuits is real

Asbestos Litigation and Bankruptcy: A Case Study for Ad Hoc Public Policy Limitations on Joint and Several Liability

Over a decade ago, the Federal Judicial Conference warned of an asbestos litigation “disaster of major proportions.” The Supreme Court of the United States has described the litigation as a “crisis.” According the RAND Institute for Civil Justice, by the end of 2000, more than 600,000 asbestos claims were filed. RAND estimates that as many as three million more plaintiffs may eventually file claims. Most new claimants are not sick. The flood of claims has forced almost sixty companies into bankruptcy; many of these bankruptcies are very recent. As a result, defendants with only remote connections to asbestos – known as peripheral defendants – are being dragged into the litigation. Some of these companies have also begun to declare bankruptcy. Experts predict that, absent meaningful reform, asbestos cases may continue to be a major legal and public policy problem for decades to come. In this Article, Professor Cupp argues that courts and legislatures should impose ad hoc public policy limitations on joint liability in asbestos and other appropriate cases. The Article analyzes holdings that support asbestos-specific limits on joint liability, and explains why unlimited and unrestrained joint liability represents unsound public policy in the current asbestos litigation environment. The Article concludes that limits on joint liability in asbestos cases are supported by sound public policy and would help mitigate the litigation crisis