In scanning the web for old stories about autonomous vehicles the other day, I came across this 1958 article from the magazine Popular Science, “The Car that Drives Itself.” The article, by Martin Mann, begins with the lede, “I drove a car with no hands.”
The text details efforts by General Motors to come up with a system for controlling cars through a track-and-beam system, somewhat akin to the scheme Norman Bel Geddes proposed in GM’s Futurama exhibit in 1939. The article is pretty interesting, as it touches upon subjects such as moral hazard and the optimal amount of autonomy to integrate into the vehicle.
By the way, there is an ongoing exhibition on Bel Geddes at the Museum of the City of New York, through February 10, 2014. Bel Geddes had an amazing career as an industrial designer; for anyone with an interest in the subject who plans on being in New York between now and then, it might be worth a visit.
I hope to post an online version of this year’s holiday card sometime next week. The card tells a holiday-themed story and features Justices Scalia and Ginsburg, or at least their puppet incarnations. I promise it will be heartwarming and only moderately inappropriate.
As a preview, here’s one photograph that didn’t quite make the cut. Trust me, this would have made perfect sense in context, and no, it’s not intended to suggest any corruption. Quite the opposite.
All torts professors and former New Jersey residents (I claim under both lines) know about
Traction Action Park, the World’s Most Dangerous Amusement Park prior to its forced closure in 1996 by a mob of local townspeople wielding torches and pitchforks.
The Wikipedia entry for Action Park conveys what made it special: “The park’s popularity went hand-in-hand with a reputation for poorly designed, unsafe rides; underaged, undertrained, and often under-the-influence staff; intoxicated, unprepared visitors; and a consequently poor safety record.” Ah, the memories.
I like to discuss some of the park’s rides in my Torts class, particularly when we talk about assumption of the risk. Like the Cannonball Loop, a waterslide that ended in a physics-defying, impossibly tight loop-de-loop. Or the wave pool that greeted children with North-Shore-after-a-Class-4-typhoon-sized breakers. Or the Alpine Slide, dueling go-carts that sent people down a concrete chute that eventually clogged with the scraped-off skin of riders.
Until now, all I had to illustrate the park were a few photographs and this dated 1980s commercial, which entirely fails to convey the lurking menace of the place. A student of mine, however (shout out) just sent me this link to a recently produced documentary on Action Park. (And a second shout-out to Seton Hall Law Professor Brian Sheppard, who features in the video. Watch, and you’ll see the author of “Norm Supercompliance and the Status of Soft Law” say, and I quote, “In my experience as a lawyer, whenever things go through the Cayman Islands, it’s always a red flag for sketchiness.” Awesome.)
What kind of amazes me about this video is that SEVERAL PEOPLE DIED at Action Park. And now there’s a sort of hazy glow about the place. Like it was the ol’ fishin’ hole, only if the fishing hole was full of piranhas and underfed grizzly bears.
For those of you who haven’t seen it yet, since March 2013 Professor Derek Muller of the Pepperdine University School of Law has been offering up one excellent post after another on his blog, titled Excess of Democracy. Along with Robert Anderson’s Witnesseth (named to the ABA Blawg 100 this year) and Paul Caron’s perennial powerhouse TaxProf Blog, Pepperdine is turning into the academic law-blog hub of the West.
Some items under the hammer this month:
- One of Jesse Owens’ four gold medals from the 1936 Berlin Olympics is up for bids at SCP Auctions.
- Also at SCP Auctions: game-worn sneakers that once graced the feet of Manute Bol and Muggsy Bogues.
- And one final SCP item: a pair of yellow, tasseled boots worn at a wrestling match by the “Macho Man,” Randy Savage. Can I get an ooh-yeah?
- Some amazing Tiffany lamps are up for auction at Christie’s on December 19. You can access the e-catalogue here. There’s also another Tiffany auction at Sotheby’s, one day earlier. My favorite item in the latter auction is probably this Wisteria lamp.
- As part of the 20th Century Design auction at Sotheby’s on December 18, this outstanding Frank Lloyd Wright-designed desk from the S.C. Johnson and Co. administration building is up for sale. You also can bid on a matching chair.
- You may want to shield your eyes before clicking on this link for a shirt worn by Elvis back in the 1960s, up for bids at Heritage Auctions. Or you can make a slightly different fashion statement with this Jimi Henrix purple ruffled satin shirt from 1968.
- Also at Heritage: this script for “12 Angry Men,” signed by Henry Fonda and numerous other disgruntled individuals.
The Professors Graham
Holiday 2013 Semester
- You have three hours to complete the exam, which consists of a single question.
- This is a closed-book exam.
- Assume that the facts as given are true.
- Good luck!
On January 3, 2012, Congress passed the Naughtiness Obliteration and Elimination Law of 2012 (P.L. 112-000.5) (hereinafter “the NOEL”). President Obama signed the NOEL into law three days later.
Among its findings, the NOEL relates that “there exists an epidemic of naughtiness among the nation’s children . . . neither the states nor private institutions can control this plague on their own . . . therefore, federal action is not only desirable, but necessary.” As enacted, the NOEL:
(1) Imposes a naughtiness “fee” of $50 upon each American child for every documented instance of their “naughtiness.” Revenues from this “fee” are to support the Federal Nice Fund (FNF), a newly created fund for public-works projects in NOEL-compliant states. (NOEL, § 3(a).)
(2) Creates a new federal agency, the Naughtiness Review Board (NRB), tasked with drafting binding rules to distinguish true “naughtiness” from merely obstinate, immature, or annoying behavior, all of which lie beyond the scope of the NOEL. (Id., § 7(d)(2)(D)(iii).)
(3) Assigns to individual states and localities exclusive responsibility for identifying specific instances of naughtiness (in a manner consistent with NRB rules), and for collecting the associated “fees.” (Id., § 14(b)(1)(B)(ii)(#)(?).) If a state declines to perform these tasks, the NOEL requires the federal government to place that state on a federal “naughty” list. Placement on this list (1) automatically makes a state ineligible to receive FNF funds, and (2) generates a conclusive presumption that all children within the state are “naughty.” (Id., § 15(c)(3)(Q)(iv)(!)(@)(?)(®).)
(4) To ensure full compliance, the NOEL bars any “person, group, or agency” that receives “funding, or any benefit from the federal government” from making a “material naughtiness determination” contrary to rules promulgated by the NRB, with the consequence of such a contrary determination being withdrawal of the federal funding and/or other benefit. (Id., § 22(z)(12)(F)(vii)(¥)(‰) (LOL)(¿)(?)(D).)
Also, the passage of the NOEL somehow caused a penny scale to topple onto a woman standing at a train station in Brooklyn.
Question: Assume that on December 1, 2013, the following plaintiffs bring suit in federal district court, challenging the constitutionality of the NOEL:
1) Violet Thompkins, a nine-year-old Vermont resident whom an NRB rule classifies as “naughty” because she refuses to eat her broccoli at supper;
2) Thaddeus and Harriet Thompkins, Violet’s zealously overprotective parents;
3) Bobby Chavez, a goody-goody seven-year-old Texas resident, who nevertheless has been classified as “naughty” because his state refuses to participate in the NOEL scheme;
4) Ken Cuccinelli, attorney general of the state of Virginia, suing on behalf of that state, because he seems like he’d probably get involved in something like this; and
5) Santa Claus, who maintains his own “naughty” list for purposes of gift distribution, and receives a special exemption from the Federal Aviation Administration to fly around the nation, under the radar, on Christmas Eve.
Draft an analysis of these challenges to the NOEL in which you address:
(1) The arguments, sounding in the Constitution of the United States, that each plaintiff plausibly might advance against the NOEL (here, make certain to consider whether the plaintiff would have standing to raise these arguments);
(2) The government’s anticipated responses in defending the NOEL;
(3) How the courts are likely to rule; and
(4) The forms of relief available to each plaintiff, if any.
This was, in fact, last year’s card, as sent to our relatively short “snail mail” list of card recipients; I just updated the dates for this post.
For the past decade or so, my wife and I have prepared law-themed holiday cards. We started with a contract, moved on to a prospectus, wrote a couple of opinions, and since I started my current job in 2009 we’ve written a series of “exams.” These exam cards are little four-page numbers that we design to look like old-time exam booklets. Last year set itself up well for an ACA parody card.
I have some friends in the legal academy who are really enthusiastic about autonomous (self-driving) vehicles. They foresee a future in which these devices carry us to and fro more safely and efficiently than current, human-directed vehicles do.
But many of these same people worry that this future will never come to pass. One concern is that the threat of tort liability down the proverbial road will dissuade possible innovators from making the necessary investments in these devices. And so, some of these advocates have recommended that Congress preempt tort claims against autonomous-driving technologies to encourage their development and diffusion.
In making this argument, boosters sometimes point to the example set by the partial preemption of personal-injury claims associated with the administration of childhood vaccines. As some of you know, in 1986 Congress passed a law that shifted these claims from “traditional” courts and juries to a special forum, which can award damages (funded by an excise tax on the vaccines) upon proof that a claimant’s injury was associated with a covered vaccine. Significantly, this scheme caps pain and suffering damages at $250,000, a ceiling that offers cost certainty to vaccine manufacturers. This statute is today widely regarded as having rescued the childhood vaccine industry from possible ruin, and some people who want to encourage the development of autonomous cars argue that a similar, liability-limiting system (or a more robust preemption scheme) should apply to these vehicles.
Personally, I am more or less agnostic on preemption as it applies to autonomous vehicles. But I am not certain that the vaccine analogy is an especially compelling one. Let me explain why.
Let me start with the circumstances that I regard as creating a paradigm case for preemption premised on a bare threat of ruinous liability (as opposed to, say, preemption designed to ensure the supremacy of federal law, or to avoid interjurisdictional conflicts). Such an argument seems to make the most sense as applied to a device or technology that’s reasonably established as being (1) irreducibly unsafe in some respect; but (2) health- or safety-enhancing, relative to all practical substitutes; and (3) as to which the costs associated with tort judgments are so great as to render continued development or production impractical or undesirable.
The first of these points suggests that tort liability will not encourage further refinements in design, warning, or manufacturing, because it can’t. The second underscores that the product is a socially desirable one, worthy of protection notwithstanding its flaws. The third substantiates an intuition that the product is going to disappear unless the normal mechanics of tort law are somehow constrained.
The history of childhood vaccines, and the status of the vaccination market in the early 1980s, supplies a much better argument for preemption of vaccine lawsuits—along all three dimensions discussed above—than presently exists for preemption of lawsuits involving autonomous cars. In the interest of time, I am going to focus here on the third of these characteristics — the threat to the industry posed by the “normal” application of tort law.
Between 1980 and 1985, 299 lawsuits were filed against the producers of childhood vaccines for injuries allegedly associated with the administration of these vaccines. These lawsuits targeted an industry that was neither especially large nor especially profitable. According to one government report, total sales of childhood vaccines amounted to just $385.8 million for the four-year period between 1981 and 1984, a figured dwarfed by the $3.5 billion in damages demands made in the aforementioned lawsuits. One contemporary media report quoted an employee of a vaccine manufacturer as saying that the dollars demanded in lawsuits pending against the company relating to alleged injury from the pertussis vaccine were 200 times the total sales of the vaccine it produced in 1983. Furthermore, while the precise profitability of the vaccine market at the time is unclear, several of the largest customers had significant buying power, a fact that normally keeps margins relatively low.
A spike in outlays occasioned by product liability suits–through direct damages payments or insurance costs (if insurance were available at all)–thus threatened to drive what was at most a modestly profitable business into the red. The difference between the modest revenues and possibly immense liability exposure also made it difficult for manufacturers to price their vaccines so that they could pass costs on to consumers (especially without being accused of price gouging, a charge that might have negative implications for their other products). Nevertheless, vaccine prices did spike in the early 1980s (rising between 50 and 900 percent during this span, depending upon the vaccine and market), and liability costs received much of the blame.
Predictably, given these circumstances, childhood vaccine manufacturers fled from the business. Per one Congressional report that accompanied the preemption law:
Between 1966 and 1977, half of the commercial corporations producing vaccines in the U.S. ceased production and distribution of these products. Since 1977 this contraction has continued. In 1985, there were only four commercial firms producing and distributing the primary vaccines used in childhood immunization programs. It has been suggested that there are certain characteristics of the vaccine market that make vaccine production and distribution relatively unattractive from a commercial perspective, which in turn has acted to discourage producers from entering or staying in the business of producing vaccines.
The four remaining domestic, private participants could very credibly threaten to leave the business themselves. Most of these entities had many other product lines to keep their corporate coffers full, if they chose to leave vaccine manufacture behind:
- Other products marketed by Wyeth Laboratories’ parent (American Home Products Corporation) included Anacin, Dristan, Preparation H, Crunch ‘n’ Munch, Woolite, Pam Cooking Spray, and Easy-Off oven cleaner.
- Lederle Laboratories’ parent (American Cyanamid Company) sold products including Lady’s Choice antiperspirant, Old Spice deodorant, Breck shampoo, Formica brand laminates, and Pine-Sol liquid cleaner.
- A third vaccine producer, Merck, claimed a robust portfolio of profitable prescription drugs.
The other drugs and consumer goods sold by these companies were big business, compared to vaccines: according to their respective annual reports, American Home Products, American Cyanamid, and Merck boasted 1983 revenues of $4,857 million, $3,536 million, and $3,246 million, respectively.
Meanwhile, no guarantee existed that new entrants would replace these dropouts. Development of a new vaccine was then, as it is now, a costly affair. Other companies conceivably might purchase an existing vaccine business from an existing participant—but why would they, given the market dynamics discussed above?
* * *
In sum, the threat to the vaccine market in the mid-1980s was real, not just theoretical. Manufacturers’ threat of exit was bolstered by the facts that other companies had abandoned the business, childhood vaccines were a small, relatively flat, and not especially lucrative business, and these companies had other product irons in the fire. Meanwhile, substantial barriers blocked new entrants.
For the autonomous vehicles / vaccines analogy to prove persuasive, I’m going to need to see similar evidence that tort liability poses a real, as opposed to an existential threat to the development of autonomous cars. (I’ll also need to hear more about how autonomous vehicles will in fact be safer than human-operated vehicles, but that’s another story.)
In connection with an ongoing research project, I have been reading all about exploding soda and beer bottles. While doing so, I came across this paraphrase [in an old NACCA annual convention transcript] of a nice closing statement by plaintiffs’ attorney Sam Rosenthal, wrapping up a mid-century bottle case. As background, the plaintiff was a cafe owner; the defendant, a beer bottler. Also keep in mind that the bottles of the era tended to be reused many times by the bottler:
I wish this little bottle could talk. [Holding up the bottle] I wish this little bottle could talk. Do you know what it would have said? It would have said, ‘Ladies and gentlemen of the jury: When I was born I had some defect. They didn’t give me a strong body. I slipped by the manufacturer with several others because I looked so well. You couldn’t tell by looking at me what my body was like, but I had some defect there. I had some pain along the side. One side was not quite as strong as the other. You couldn’t tell by just looking at me.
I have seen some of my brothers placed in the machine. I don’t know what you call it. They were looking at some of my brothers and sisters from the same batch but they passed me. I also heard and saw them rapping my brothers and sisters. They rapped me, too, a little. It didn’t seem to indicate I had a weak body. I got by that, too. They let me go to the brewery. They filled me up with beer. I was sent back. I had pain constantly. I wasn’t very happy.
Then came a day I deeply regret because several times, maybe fifty or a hundred times, maybe more, I went through. Then I went to the establishment of Mr. Gordon, a very nice fellow. He didn’t mishandle me at all. He did nothing at all to me. He just took me out, but by that time I couldn’t stand it any longer. I gave way. I made a lot of noise and went to pieces and a part of me entered Mr. Gordon’s eye and blinded him. It wasn’t my fault and it certainly wasn’t his fault. They just didn’t take good care of me. I wish they could take me back and give me a new life and give him a new eye, but they can’t.
I just wish this bottle could talk, ladies and gentlemen of the jury.
For you torts geeks out there, Gordon resulted in a plaintiff’s judgment (of course it did, after that closing argument), after which the case ratcheted up the appellate ladder to the California Supreme Court. That court affirmed, with Justice Traynor writing a concurring opinion that echoed most of the arguments he had made a few years earlier in his Escola concurring opinion.
I love love love mid-century modern architecture. There’s a neat blog, Retro Renovation, that tracks remodel projects on these properties. A recent post on Retro Renovation concerned a pretty awesome 1961 home in Minnesota that’s now on the market for $1,250,000. If you’re a fan of this architecture style, check out a bunch of pix of the remodeled house here.
So, I am working on a draft of an article that bears the (tentative) title “Diffusion Patterns in Tort Law, or What We Can Learn from Holdouts.” I think the piece has coalesced sufficiently that it would benefit from some comments from people who are smarter than me, which is pretty much anyone and everyone.
So, this proposal. If you (1) are a lawyer, or law student; (2) think that the paper sounds interesting (spoiler alert: it isn’t); and (3) would be prepared to read it and provide me with some comments, for each set of comments that I receive and incorporate, even just a tiny bit, into the paper, I will not only mention you in the acknowledgements (if you’d like), but also donate $20 to one of two charities, Inyo/Mono County Animal Resources and Education (which works to find homes and provide medical treatment for animals in the Eastern Sierra region of California), or Peaceful Valley Donkey Rescue (the name says it all). I’m prepared to donate up to $100 to each charity.
If there are any takers out there, please e-mail me (my e-mail address is on the right-hand side of the blog) and I’ll send you the current working draft.
The Contours of Curtilage
By Kyle Graham
The Supreme Court’s opinion Florida v. Jardines has left some unanswered questions.
A Left Turn in Criminal Procedure?
By Amanda Harken
Scholars have observed that the Supreme Court’s recent criminal procedure jurisprudence has created more questions than answers.1
1 See Kyle Graham, The Contours of Curtilage, 45 Alaska L. Rev. 923, 947 (2013).
The Roberts Court: Unwept, Unloved
By Amit Chandrasekaran
The Supreme Court’s recent criminal procedure decisions have come under fire from academics.1
1 See Amanda Harken, A Left Turn in Criminal Procedure?, 38 S. Ariz. L. Rev. 21, 24 (2013).
Academics vs. The Court: Round 1000
By Justin Sandefurd
Academics have taken an unremittingly hostile stance toward the Court, and in particular, toward its criminal procedure jurisprudence. 1
1 See Amit Chandrasekaran, The Roberts Court: Unwept, Unloved, 40 Cardon L.J. 234, 244 (2013).
With rumors circulating that SCOTUSblog may be up for sale, thoughts of course turn to some of the prospective purchasers:
The New York Times:
Pros: Would confer much-needed legitimacy upon NYT’s coverage of the Court
Cons: Already dreading the inevitable Chuck Klosterman 10,000-word essay that analogizes the Court’s most recent ERISA decision to the Billy Joel album 52nd Street, Pete Maravich, and Season Four of “The Real World”
The Federal Government:
Pros: Repeat player before Court; could anticipate likely rulings by monitoring justices’ visits to site
Cons: Poor recent track record in operating websites
Pros: Presently in need of a job; already sponsors the blog
Cons: Likely to do something crazy and paternalistic, like ban all use of adverbs on the site; unclear how cert petitions would look when projected across a six-screen Bloomberg Terminal
Mary Pat Dwyer:
Pros: Undoubtedly sick of getting stuck with SCOTUSblog’s crummy “Petitions” beat; purchase may offer a chance to move up to Immigration commentary, at least
Cons: Kevin Johnson is surprisingly tough and will only give up the Immigration beat when they pry it from his cold, dead hands; Dwyer, though talented, still only a third-year student at Duke, and probably thinking to hell with the law and checking out the MBA program at Kellogg instead
The Volokh Conspiracy:
Pros: Acquisition, then liquidation would eliminate a significant competitor for law-blog traffic; strategy consistent with basic tenets of ruthless capitalism
Cons: Threat of insurrection by Volokh / SCOTUSblog cross-bloggers Kerr and Baude; unclear if SCOTUSblog can be stripped for parts
The Harvard Law Review:
Pros: They’ve apparently got all that BlueBook money
Cons: Difficult for Harvard students to develop an interest in anything other than themselves
A round-up of interesting items going under the hammer soon, across the auction-house landscape:
- Currently up for bids over at at Goodwin & Co., this autographed “Shoeless” Joe Jackson check, reflecting a $75 mortgage payment on his Savannah, Georgia home (minimum bid: $30,000).
- At Heritage Auctions (November 16-17), hundreds of vintage movie posters, including a one sheet for the legendary “Faster, Pussycat! Kill! Kill!,” a stylish poster advertising “Sullivan’s Travels,” one of the best of all Marilyn Monroe movie posters, the terribly scandalous poster for the 1919 film “Vamps and Variety,” and this poster for “Love and Doughnuts,” a silent film starring Ben Turpin, whom if memory serves, once had his crossed eyes insured for $1,000,000 (with the policy paying off if they ever became uncrossed).
- Also at Heritage, as part of their animation art sale (November 20-24), this concept painting for Walt Disney Pictures’ “Sleeping Beauty” (1959) and this hand-drawn lineup of 18 “Peanuts” characters, apparently used by Peanuts animators to tell which characters are taller than others.
- Over at Charitybuzz, dinner with former Attorney General Michael Mukasey is presently up for bids (estimated value: $5,000 (?)(!)), as is a red stapler signed by Stephen Root (a.k.a. Milton from “Office Space”).
- At Sotheby’s “Travel, Atlases, Maps & Natural History” auction (November 12), items up for bids include this 1642 monster manual (est. $2,000-$3,000) a lot of 91 glass lantern slides, depicting scenes in circa 1890-1920 China (est. $2,000-$3,000); and this stunning 1482 atlas (est. $600,000-$800,000).
- At Bonham’s Montana fossil auction on November 19, you can get this T-rex tooth (est. $5,000-$6,500) or, if you were an early investor in Twitter, this T-rex skeleton (est. $1.8-$2.2 million). But the T-rex isn’t even the most expensive item on the lot. That honor goes to the “Dueling Dinosaurs,” two dinosaurs fossilized together. Estimate: $7-$9 million. At this same auction, you also can pick up a triceratops skeleton (est. $700,000-$900,000), or a blue mammoth tusk (est. $250,000-$300,000).
- Finally, on November 14, Christie’s will auction “a proclamation signed by George Washington on October 3, 1789 establishing the first federal Thanksgiving Day.” Warning: it’s a little pricey. The pre-auction estimate stands at $8-$12 million.
Professor Paul Brace at Rice University has compiled a very interesting database of cases decided by state supreme courts between 1995 and 1998. The database contains more than 23,000 cases,and has been very carefully and rigorously coded. A web page with more information about the database can be accessed here. One especially nice attribute: the database has been formatted in a way that you can import it into Microsoft Excel. (Open Excel first, then open the database, identifying it as a tab-delimited file.)
I don’t know that I’ll use the database for any of my work, but it definitely seems to have its uses. For kicks and grins, I did a quick “sort” to flag all of the cases identified as sounding in tort (inclusive of worker’s compensation) over the studied time period. This search yielded 4,948 cases, or about 17.5 percent of all cases in the database. Of these cases:
- 514 were flagged as “medical malpractice”
- 395 were flagged as “professional malpractice”
- 711 were flagged as “automobiles”
- 399 were flagged as “product liability”
- 86 were flagged as “toxic substance”
- 488 were flagged as “premises liability”
- 173 were flagged as “libel / slander / defamation”
- 1,130 were flagged as ”employee injury and workers’ compensation”
- 189 were flagged as “employment discrimination”
- 108 were flagged as “other labor disputes”
- 1,339 were flagged as “other torts.”
That the bulleted figures total more than 4,948 owes to the fact that specific cases could be flagged as raising multiple issues.
This was a back-of-the-envelope search, and I didn’t do a deep dive to figure out what cases were poured into each bucket. And, of course, I could be reading the database wrong; that’s always a possibility. At a glance, I’d observe that the percentage of the courts’ caseload that contained a tort issue or two during the 1995-1998 span is down a little, but not that far off from what Professors Kagan and Friedman found to be the case in their 1977 study of the same courts’ dockets during the 1945-1970 period. I am a little surprised that there were so many defamation cases, although I suppose these claims do tend to get thrown into lots of invasion of privacy lawsuits, almost as an afterthought.