CJRG Members In The News - 2010

• "It can be a nightmare," said Charles Silver, a professor at University of Texas at Austin's law school, who is advising lawyers involved in the lawsuit. "Whenever you have lots of people involved with lots of views, things don't always go smoothly." (Belsha, Kalyn, "Beaumont law firm taking on a giant job" Houston Chronicle, October 16, 2010)
  

• �Lucinda Finley, the Frank G. Raichle Professor of Law at the University at Buffalo, said the church might be operating �in a gray area.� The church may be at some risk, Finley said, lobbying for a bill with a specific number on it like Stupak�s instead of expressing a strong general viewpoint, but its efforts have to be weighed on a scale of relative magnitude."(Turner, Douglas, "Bishops apply pressure, Congress pushes back" Buffalo News, August 21, 2010)
  

• CORLEY: The media blitz might make it more difficult to choose new jurors, but Nancy Marder, a professor at Chicago-Kent College of Law, doesn't expect too much of a problem.
  
  Professor NANCY MARDER (Chicago-Kent College of Law): What we ask of jurors is not that they're blank slates, not that they've been living in a cave and haven't heard anything about this trial, but rather that they can be impartial going in, that they have an open mind, and that they'll decide based on the evidence ("All Things Considered: Blagojevich's Trial: The Saga Continues" NPR, August 21, 2010)
  

• Nancy Marder, a professor at Chicago-Kent School of Law and director of the schools jury center, points out that the practice of giving each juror his or her own copy of jury instructions in civil cases -- an obvious step given how complicated the instructions can be -- only started in Illinois in September 2009. (Babwin, Don, "Forget high tech, jurors and judge stick to notes" The Boston Globe, August 15, 2010)
  

• CORLEY: Nancy Marder, a law professor at Chicago Kent College of Law, whos written about the jury process, says there's another thing to keep in mind.
  
  Ms. NANCY MARDER (Law Professor, Chicago Kent College of Law): I think we have to realize that there's a broad swath of people who will not have been watching the governor on these reality shows. ("All Things Considered: Next Stop On Blagojevich PR Tour: Court" NPR, June 2, 2010)
  

• "To succeed, the president and other reformers need to challenge the claim that governmental efforts to improve the health-care system threaten liberty. It is this ideological battle cry that energizes the opposition and troubles many Americans. The claim has largely gone unanswered, leading many to assume that it is correct. But, in fact, the stronger argument is that reform will increase liberty." (Bogus, Carl T., "Health-reform law will boost individual liberty" The Providence Journal, May 25, 2010)
  

• "Richard A. Daynard a professor at Northeastern University School of Law and president of the school�s Public Health Advocacy Institute is one of the 10...�("Lawyers line up to take on Toyota: Class action lawsuits wait for federal ruling" Massachusetts Lawyers Weekly, April 5, 2010)
  

• �Different states are reaching different conclusions,' said Thomas A. Eaton, a law professor at the University of Georgia who specializes in civil damage cases. �There�s not necessarily a national trend.�(Brown, Robbie, "Ruling Strikes Down Georgia�s Cap on Malpractice Awards" United Press International, March 23, 2010)

• "Richard A. Daynard, a tobacco law specialist at the Northeastern University School of Law in Boston, told The New York Times earlier this month: "However rich these companies are, they're not quite that rich. The (Supreme) Court would have to decide whether it wanted to bankrupt the companies" if it ruled for the administration.� (Kirkland, Michael, "U.S. Supreme Court: U.S. to Big Tobacco -- Fork over that $280B" United Press International, March 7, 2010)

• �If the Supreme Court were to agree to reopen the case, �it puts everything back on the table,� said Richard A. Daynard, a tobacco law specialist at the Northeastern University School of Law in Boston. �However rich these companies are, they�re not quite that rich. The court would have to decide whether it wanted to bankrupt the companies.�(Duff, Wilson, "U.S. Asks Justices to Review Tobacco Company Ruling" The New York Times, Febrary 19, 2010)

• �Professor and author Christopher M. Fairman ["The case against banning the word 'retard,' " Outlook, Feb. 14] made good arguments about the limits of language to effect change in behavior and attitude, as well as about the nuanced ways in which words such as "retard," "queer" and "gay" can carry multiple meanings, some of which intend no insult or humiliation.�(Shriver, Timothy, "The bigotry behind the word 'retard'" The Washington Post, Febrary 15, 2010)

• �The varied and evolving uses of such words ultimately render self-censorship campaigns unnecessary. And restricting speech of any kind comes with a potential price -- needlessly institutionalized taboos, government censorship or abridged freedom of expression -- that we should be wary of paying.�(Fairman, Christopher M. , "The case against banning the word 'retard'" The Washington Post, Febrary 14, 2010)

• "One thing nobody mentioned in the plan was the lawyers--and the role of lawyers and their practices in prolonging cases. Their pay regime, by appearance, sets up a perverse incentive, and lawyers in India have no incentive to make things finish," explains Marc Galanter, professor of Law and South Asian Studies at the University of Wisconsin-Madison. (Nath, Shloka and Kumar, K.P. Narayana, "Fast-Tracking Justice" Forbes, January 12, 2010)
  

CJRG Members In The News - 2009

• [W]e should allow malpractice premiums to rise when the next malpractice crisis hits. Providers are rational. When injuring patients becomes more expensive than not injuring them, providers will stop injuring patients. Lowering malpractice premiums through tort reform eliminates this incentive without substituting anything. Litigation rates and premiums will fall on their own when providers improve the quality of care. As Dr. Donald J. Palmisano, the past president of the American Medical Association, aptly observed, fewer errors "will reduce the number of lawsuits against physicians," since an uninjured patient is far less likely to become a plaintiff. (Hyman, David A. and Silver, Charles, "SOLUTIONS: Malpractice Litigation in U.S. Health Care Reform," Washington Times, August 23, 2009)


• �It was perfectly clear there was going to be a constitutional challenge, and I think it will survive the challenge,� Richard A. Daynard a professor at the Northeastern School of Law in Boston and chairman of its Tobacco Products Liability Project, said in a phone interview.� (Duff, Wilson , "Tobacco Companies Sue to Loosen New Limits" The New York Times, August 31, 2009)


• Imposing Texas-style limitations on all 50 states may or may not be a good idea. Experts disagree on the effects and desirability of caps. For example, although Burgess believes that doctors rushed into Texas after tort reforms took hold in 2003, a study by two of us found that, from 2004 to 2007, the state’s supply of direct patient care physicians actually grew unusually slowly, given the expansion of the state’s economy. Even if we are right, however, caps and other restrictions on lawsuits may well be part of a "grand bargain" between Democrats and Republicans to enact healthcare reform. If so, we should think hard about how best to implement them. In our judgment, the Texas approach is too simple-minded. Texans got nothing in return when they gave all healthcare providers the benefit of caps on noneconomic damages in 2003. They received no guarantee that the supply or the quality of healthcare available to Texans would improve, or that costs would go down. (Avraham Ronen, Hyman David A. and Silver, Charles, "Texas-Style Caps on No-Economic Damages Isn’t Smart Tort Reform" Editorial, Star-Telegram, July 18, 2009)


• The American Bar Association Tort Trial & Insurance Practice Section is honoring Charles M. Silver of Austin, Texas, with the Robert B. McKay Law Professor Award. The award will be presented to Silver during the ABA Annual Meeting in Chicago at the section’s Leadership and Awards Dinner...Established in 1988, the award was created by the section to honor law professors who have shown commitment to the advancement of justice, scholarship and the legal profession, demonstrated by outstanding contributions to the fields of tort and insurance law. “Charles richly deserves this honor for his dedication to justice and scholarship in the legal profession, displayed not only by his unwavering service in higher education, but also by his valuable involvement with the TIPS Task Force on the Contingent Fee,” said Section Chair Tim Bouch of Charleston, South Carolina. ("Charles M. Silver is Recipient of 2009 Robert B. McKay Law Professor Award" ABA News Release, July 8, 2009)


• "Carl T. Bogus, a law professor at Roger Williams University, says the case is sufficiently perplexing and �distressing� that he wishes the parties involved would agree to open up the records.
  
  'If all [Bertness] said was �You can�t win them all,� I don�t see how that could provide a basis for a reasonable motion of recusal,' said Bogus. As for Bertness� rejoinder to Robert Goldberg, �not even you,� Bogus said that that could be interpreted as a compliment of Goldberg�s legal skills, not an allusion to any undue clout because of his wife."(Stanton, Mike, “Judge's remark recusal raised issue of justice's conflicts” The Providence Journal, June 14, 2009.)

• �... based upon academics said Lucinda Finley vice provost. I can say I saw no evidence that the gender of the candidates had anything ...� (Rey, Jay, “Gender bias in UB tenure alleged” Buffalo News , May 6, 2009.)

• "The notion that somehow civil justice is hurting business in the state is just totally unfounded," said UW law professor emeritus Marc Galanter, who co-authored the study, recently published in a booklet entitled "Civil Justice in Wisconsin: A Fact Book, With Commentary." Although the overall number of civil cases filed in state and federal courts of Wisconsin has risen over the past decade-plus, the vast majority of these were small claims filings and the study says there is no evidence that excessive litigation is harming the state's business climate. (Finkelmeyer, Todd , “UW Report: WMC Claims Of Excessive Litigation In State Are Bogus,” Madison Capital Times, April 6, 2009.)

• Pending the outcome of the ongoing FDA investigation, families of victims may have the right to take legal action. Frank McClellan, a Temple health law professor, has substantial litigation experience in products liability. “With most lawsuits, it will be filed as a personal injury action, which, for private individuals, is brought under state and civil law as a personal injury claim called a private tort lawsuit,” McClellan said. In a Supreme Court case from earlier this month, the Court ruled it permissible for a person to file a lawsuit for not being informed about the dangers of a personal product. (Rubinsky, Valerie and Fernandez, Joshua, “Energy Boosters Could be Cause of Heart Failure,” Temple News, March 31, 2009.)


• Phoebe A. Haddon has, in a sense, been preparing to become a law school dean her entire professional career. Now, the well-known legal education scholar will have a chance to put her ideas into practice. Haddon, named the ninth dean of the University of Maryland School of Law on Monday, envisions the school as an "urban research institution," with its clinics and programs focused on solving community problems. 'I'm very excited about that concept as a way of capturing some of what is already being done here and making it better,' she said. (Jacobs, Danny, "Haddon Named UM Law's Ninth Dean," Maryland Daily Record, March 31, 2009.)


• �In his 2006 book "Lowering the Bar, Lawyer Jokes and Legal Culture," University of Wisconsin-Madison professor emeritus Marc Galanter analyzed the history of lawyer jokes. Galanter examined hundreds of lawyer jokes to explore Americans' strong belief in the law with their mixed feelings about lawyers.� (Cato, Jason, "Allegheny lawyers to show their lighter side at comedy show" TRIBUNE-REVIEW, March 23, 2009.)


• Once in a while the Supreme Court gets a case -- or a line of cases -- completely wrong. The question of whether criminal juries of fewer than 12 citizens are constitutional is such a blunder. (Calabresi, Steven and Sak, Michael, "Justice Requires 12 Angry Men" The Wall Street Journal January 6, 2009.)

CJRG Members In The News - 2008

• By denying minorities access to traditional home loans, discrimination also drove them into costlier subprime mortgages. When defaults on these loans began to climb in 2007, they hit the entire housing market, inflicting the United States with a recession and the highest unemployment level in 15 years. "The subprime market discovered the African-American and Latino communities and targeted them,' said commission member Okianer Dark, a law professor at historically black Howard University in Washington. The report found that whites got better loans than blacks, Latinos and Asians, who make up roughly a third of the population and who were sometimes steered away from buying homes in predominately white communities." ("Report: U.S. Housing Still Segregated," Associated Press, December 15, 2008.) Professor Dark's full statement can be found here.

• Richard Daynard, chairman of the Tobacco Products Liability Project, which encourages litigation against tobacco firms, is dubious. He said it has been the industry's practice in tobacco litigation to put the smoker on trial and bring up anything "untoward" in their lives. Daynard said he believes Philip Morris knows it will lose the first phase, so it will try to 'prejudice the jury against the decedent.' Then, he added, jurors will be more inclined to side with the company when it comes time to assigning fault and assessing damages in the second phase. "Does the judge let them play that game or not?" said Daynard, a law professor at Northeastern University in Boston who is involved in some of the smokers' cases filed in Florida federal court. "That will be one of the interesting things to watch." (Danner, Patrick, "Smoker Lawsuit Goes to Trial in Broward" Miami Herald, December 1, 2008.)

• Carl T. Bogus, a law professor at Roger Williams University School of Law in Bristol, R.I., who reviewed a breakdown of the settlements for the Globe, said plaintiffs faced a formidable obstacle. "Regrettably, some of the most culpable defendants had the shortest pockets," he said. "So plaintiffs' lawyers ... do what good plaintiffs' lawyers do, and that is they try to creatively find other defendants with some culpability and more money." (Saltzman, Jonathan, "The Cost of Tragedy," Boston Globe, September 21, 2008.)

• Legal scholars, however, point to limits imposed on numerous categories of liability, including medical malpractice, airliner crashes, workers' compensation and defective pharmaceuticals in arguing that courts are unlikely to lift the railroads' liability limit. "I don't see any basis for challenging the cap," said UCLA law professor Richard Abel, a civil litigation expert. He pointed to cases as far back as a century ago in which courts have upheld similar ceilings. (Williams, Carol J. "Liability Cap Could be Tested in Deadly Metrolink Crash," Los Angeles Times, September 17, 2008.)

• [Linda] Ginzel has spent the last decade pushing for tougher testing of children's products before they're sold and more effective ways of sweeping dangerous products off store shelves. She and her husband founded Kids in Danger, a Chicago-based nonprofit dedicated to children's product safety. "We'd rather have our son," Ginzel said, choking up. "But whatever we can do to protect other families -- it's not really a choice we can make. It's something we have to do." Ginzel has bared her grief before Congress and state legislatures around the country in the hopes that Danny's story would prod tougher safety laws. But it was a long fight. The product-safety bill compromise announced Monday includes a provision named after Danny. That part of the law forces the U.S. Consumer Product Safety Commission to enact tougher safety rules for durable nursery products, including cribs, and requires that manufacturers test their products to those standards before they're sold. (Callahan, Patricia, "Safety Bill a Boy's Sad Legacy," Chicago Tribune, July 29, 2008.)

• Five months after throwing out the $145 billion judgment and barring a class-action suit, the state Supreme Court reinstated jury findings that the companies withheld information on the dangers of smoking. Individual plaintiffs may also request punitive damages, the court said. The plaintiffs won't need to prove cigarettes are addictive and cause diseases including nine kinds of cancer, or that companies hid information about risks, the court said. The high court's actions mean plaintiffs' lawyers need only link their clients' illnesses to specific companies, the smokers' attorneys said. "It's a big leg up'' for plaintiffs, said Charles Silver, a law professor at the University of Texas in Austin. "There are a lot of smokers, and the cases are big, as a lot of them suffered pretty serious injury.'' (McQuillen, William, "Reynolds Tobacco Claims Show Litigation Discount," Bloomberg, July 24, 2008.)

• The justices did not seek out the issue of marriage rights for gays and lesbians. They knew that the case generated strong feelings on all sides of the issue, and they recognized that the issue was playing itself out in the political process with gradually increasing support for full marriage equality. But the court has a crucial role to play in the interpretation of the reach of constitutional rights and does not have the luxury of deferring to the political process when these rights are violated. (Levine, Lawrence C., "The 4-3 Marriage Ruling Simply Ends an Unconstitutional Ban," Sacramento Bee, June 1, 2008.)
  

• Professor Thomas H. Koenig, Chair of the Department of Sociology and Anthropology and a founding member of Northeastern’s Law, Policy and Society Ph.D. program was the lead speaker at a recent conference at Weidner Law School that focused on his concept of “crimtorts.” The term “crimtorts” was coined by Koenig and Michael Rustad, a professor at Suffolk University Law School, to describe a doctrinal approach that blends the principles of criminal law and the law of torts. (Robinette, Christopher J., Crimtorts: Introduction (June 12, 2008). Widener Law Journal (Symposium), Vol. 17, No. 3, 2008; Widener Law School Legal Studies Research Paper No. 08-44).


• John Lande, An Appreciation of Marc Galanter's Scholarship, 71 Law and Contemporary Problems 147 (Spring 2008)

CJRG Press Release Announcing Formation of CJRG

Prominent Scholars Join Forces to Fight Assault on Civil Justice System
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For information on individual activities and accomplishments of CJRG members, contact: [email protected]