Saturday, December 31, 2005

Now taking nominees for worst torts case.

So I'm a little libertarian and am very much against the tort system (except for satanic computer companies of course) and so I would like to nominate Kalechman as the most horrifically unjust case.

My understanding is that Kalechman had gotten a rental car from his boss, his father-in-law was driving it with K as passenger, and his bad driving killed them both. His wife, acting under an assigned wrongful death claim, sued the rental car company, of course! The rental company was statutorily liable in NY: whoever owns the car is liable for a negligent driver.

To do this, the court had to overcome an old stagecoach-era rule that if the passenger was the exclusive legal authority over the car, the driver's negligence would be imputed to the passenger. They called this a legal fiction, which it is.

All the while, the court overlooked the biggest legal fiction: that a rental car company could have any sort of reasonable liability to the plaintiff for a perfectly fine rental car driven badly by the decedent's father-in-law, and the plaintiff's father!

I think that's pretty unfair. Any other cases?

Plaintiff's own stupidity

I had to do a summary for an outline group for P's conduct, and I first did the section under "Effects of Plaintiff's Conduct," but then I found there were more cases scattered around relating to the same thing. Here's a list.
  • in the main section: cases 128-140
  • on "imputation": Womack, Kalechman, Handeland (under Apportionment)
  • on joint&several liablity getting co-plaintiff off hook: Walt Disney World (same)
  • physical and mental facts as part of "circumstances" for contributory negligence: Memorial Hospital (under Anatomy of Fault)
  • a youth's age and experience as circumstances for contrib negl: Charbonneau, Hill Transport, Dellwo, Teranella (under Anatomy)
  • reliance on D's reasonableness not contrib negl: Jackson v. Leach
  • violation of statute not "contributory negligence per se" if reasonable: Combs v. Los Angeles Ry
If anyone knows of anything else on plaintiff's behavior affecting recovery, please let me know. Thanks!

Youngstown and the three categories

I haven't really started to study for conlaw yet, but I thought I'd point out that the discussion of Bush's NSA (possible) naughtiness hinges partially on Youngstown Steel and the three categories of
  1. President + Congress
  2. President (Congress silent)
  3. President - Congress
For my own thoughts, let me recap the Article II power argument. Before FISA, most people thought the pres could do whatever he wanted in terms of foreign intelligence wiretapping (even relating to American citizens). This is from cases like Truong and "Keith". But after FISA, we seem to have moved from Category 2 to 3. One question then is whether FISA itself is constitutional--whether Congress is trying to take away powers it can't take away.

Clinton protested against some of FISA's provisions, although he apparently abided by it. This would make FISA somewhat like the War Powers Act, that every president since Carter hates, but none of them have directly challenged. Except Bush actually challenged FISA. Anyway, so there's some history of executive arguments thinking that FISA trenches on executive power, so that the NSA taps were constitutional even if we're in Cat 3. (Congress says no, pres says yes, pres wins.)

But: did the Authorization to Use Military Force in fact put us into Category 1? O'Connor's confusing language in Hamdi says the pres can undertake acts under the AUMF that are incidental to war. So it largely depends on how you construe the wiretaps. If you call them enemy intelligence gathering, they're pretty clearly incidents to a continuing war. If you call them plain ol' wiretapping Americans, they don't seem to be war related, and are unconstitutional. Hmmm.

These args of course are only about Youngstown categories. There's also the 4th Amdt, which has generally been held to have a big "border exception" for physical transit into/out of the U.S. United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). Is there a similar exception for communications that pass the border? That would be a bad idea--it would catch lots of emails and calls that aren't terror-related--but there might be. It would be unfortunate if protests against Bush's fairly limited program led to the recognition of such a huge exception. Of course, the 4th Amdt is a floor, not a ceiling--or maybe it's a floor inside the U.S., and a ceiling for international stuff? Also, one can argue whether the NSA program violated FISA even as written, shortcutting this entire discussion: Orin Kerr says that this question depends on technical facts we don't know yet.

Anyway, I'll post some sources relating to this shtufff later. Here's one thing for now: a Federalist Society argument between a conservative and a libertarian on the subject.

I Defy You All

To write "Something Interesting" about the Bill of Rights or 14th Amendment.

Friday, December 30, 2005

Death penalty study methodology

Donohue, of YLS, has a new paper out on death penalty studies. He reviews various studies, testing them for robustness of their conclusions when you change the assumptions slightly, and finds that most are very fragile. He concludes that there's tons of uncertainty, which is certainly true--although he avoids making what, from my reading, seems the plausible additional step. Namely, considering the deterrence effect of the DP, while the effect's uncertainty is quite wide, the actual mean seems to be solidly on the side of positive deterrence. I'm not sure what significance you can draw from that, but there it is.

Not totally unrelatedly, the crazy libertarian David Friedman has a post about arguments for and against the DP--especially that efficient punishments are a mixed blessing.

Prosser on product liability




This article is about the joining up of two forces: strict liability, and the loss of the requirement of privity. It also discusses how strict liability without privity for products is justified.

When product tort law was still negligence-based and had yet to switch to strict liability, privity was already under attack. (The early cases we read are negl cases: Winterbottom, MacPherson v Buick.)

In negl suits, privity began its decline early, in 1916, with Cardozo and MacPherson. Lack of privity was expanded in that case from the "inherently dangerous" test of Winterbottom to the "if negligently made, would be dangerous" Cardozo test.

(the rest has been moved to a comment below the fold...)

four free short torts exam questions...

From, you can get some free exam questions (and some of the answers) from various subjects. I glanced over some of the stuff, and it's kind of scary. Interesting, but scary.

For one thing, everyone else in the world apparently spends the first quarter of the semester on intentional torts. Do we not do that because it's mostly memorization of rules, and less doctrinally interesting...?

Opinion Work Product is open for business...

...but nothing you say here is protected from discovery, especially if you share it with expert witnesses.