Law’s Duct Tape? Using Public Nuisance to Fix the Holes in Administrative Law

Public nuisance is in the news again. Three important opioid cases have been recently decided. In November plaintiffs lost a bench trial in California state court, and eight days later, the Oklahoma Supreme Court reversed a $465 million trial verdict, holding that, as a matter of law, public nuisance does not extend to the manufacturing or marketing of prescription drugs. About a week later, a jury in a bellwether, the Ohio federal MDL, held that pharmacies caused a public nuisance by failing to respond to curb medically unnecessary prescriptions

What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today

In 2001 the Supreme Court, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc., suggested that, although modern punitive damages punish, in earlier times they almost exclusively compensated for noneconomic damages that were ignored by a less progressive legal system. This Article demonstrates that the historical foundation upon which the Supreme Court bases its argument is groundless. In the eighteenth and nineteenth centuries punitive damages served a number of functions, but none of them were to provide the noneconomic damages identified by the court. Instead, as the Article shows, the sort of injuries for which punitive damages were once demanded would still be uncompensated by contemporary doctrines of compensatory damages. This Article uses the Court\u27s confused analysis in Cooper to demonstrate that the dichotomy upon which it relied-that, in the law of punitive damages, punishment and compensation are mutually exclusive categories-is neither historically accurate nor analytically necessary

Reading \u3cem\u3eThe Legal Process\u3c/em\u3e

A Review of Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in eh Making and Application of La

What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today

In 2001 the Supreme Court, in Cooper Industries, Inc. v. Leatherman Tool Group, Inc. suggested that, although modern punitive damages punish, in earlier times they almost exclusively compensated for noneconomic damages that were ignored by a less progressive legal system. This article demonstrates that the historical foundation upon which the Supreme Court bases its argument is groundless. In the Eighteenth and Nineteenth Centuries punitive damages served a number of functions, but none of them were to provide the noneconomic damages identified by the court. Instead, as the article shows, the sort of injuries for which punitive damages were once demanded would still be uncompensated by contemporary doctrines of compensatory damages. This article uses the court\u27s confused analysis in Cooper to demonstrate that the dichotomy upon which it relied - that, in the law of punitive damages, punishment and compensation are mutually exclusive categories - is neither historically accurate nor analytically necessary

Amicus Curiae Brief of Professors Anthony J. Sebok and John C. P. Goldberg in Support of Appellee the Devereux Foundation, Inc.

Amici Anthony J. Sebok and John C. P. Goldberg are law professors with a particular focus in the field of tort law and damages. As scholars in this field, Amici recognize that the issues raised in this case are of tremendous importance to the history, theory, and development of tort law in the United States. The distinction between compensatory damages and punitive damages has long been recognized in both U.S. and Georgia law. Amici have a distinct interest in this Court reaching a correct decision with the benefit of complete and accurate historical information regarding the awarding of punitive damages in English common law, and endeavor to provide a thorough and accurate recounting of this important historical context for this Court’s consideration

What Is It Like to Think Like a Pre-modern?

There are a number of ways to tell the story of the change in American tort law that occurred in the nineteenth and twentieth centuries. Some, like John Witt, Lawrence Friedman, and Mort Horwitz, focus on changes in material conditions. Others, like Richard Posner, Charles Gregory, and Robert Rabin, focus on changes in intellectual or doctrinal beliefs about the nature of tort law, and the best mix of rules to achieve its ends

Doing Away With Battery Law

Steve Sugarman is one of contemporary tort law’s leading figures, and one feature of his career which stands out is that he is willing to challenge modern orthodoxy. As the title of his classic 1985 article, Doing Away With Tort Law suggests, Sugarman is willing to recommend sweeping changes to private law. In Restating the Tort of Battery, Sugarman offers a proposal almost as radical as his 1985 proposal to get rid of tort law. Although he doesn’t say he wants to get rid of battery, once he is finished “restating” it, it is hard to see what is left of it. In this essay, I will not engage directly with Sugarman’s proposal, but I will try to describe its motivation and determine its limits – which, I believe, are not as easy to find as Sugarman may believe

What Do We Talk About When We Talk About Mass Torts?

Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation\u27s Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to reform tort law throughout the 1980s. There was concern that Americans egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being. The RAND report argued that the real risk of a torts explosion came from the world of mass torts. The report\u27s authors presciently focused on asbestos and the Dalkon Shield litigation, citing these as examples of how mass latent injury suits represented a new challenge to the tort system. The study concluded that [m]ass latent injury torts are the most volatile world of tort litigation. Costs, dynamic legal environment, and the uncomfortable fit between these cases and the tort system conspire to make the number, outcome, and future costs of these suits highly uncertain