Perhaps you recall how President Trump campaigned on behalf of “Big Luther” Strange in Alabama. Strange had been appointed by Alabama’s Governor to fill the Alabama United States Senate seat vacated by Jeff Sessions when Sessions became U.S Attorney General. Trump supported Strange’s effort to win election to the seat in his own right for

A couple of quick hits today, on once “novel” causes of action whose time – at least in the novel legal spaces to which plaintiffs attempted to export them – appears to have passed.

The first of these is the shopworn effort, popular back in the late 1990s but more or less petered out by now, to use the ill-defined concept of public nuisance as a club to attack the products of an entire industry, and not incidentally, to try an end run around product specific causation.  We’ve blogged on it before, criticizing public nuisance claims against products on various grounds.

Us?  The Drug And Device Law Blog?  Who listens to us?

Not too many people, unfortunately.

But a lot of people – most importantly, judges – listen to the American Law Institute.  Bexis has joined the Members’ Consultative Group for the ALI’s Third Restatement of Torts: Liability for Economic Harm, and that group met recently.  Preliminary Draft #2, circulated last month, has this to say about attempts to use “public nuisance” to encroach upon the law of product liability:

g.         Products.

Tort suits seeking to recover for public nuisance have occasionally been brought against the makers of products that have caused harm, such as tobacco, firearms, and lead paint.  These cases vary in the theory of damages on which they seek recovery, but often involve claims for economic losses the plaintiffs have suffered on account of the defendant’s activities: the costs of removing lead paint, for example, or of providing health care to those injured by smoking cigarettes.  Liability on such theories has been rejected by most courts, and is excluded by this Section, because the common law of public nuisance is an inapt vehicle for addressing the conduct at issue. . . . If those [existing] bodies of law provide do not supply adequate remedies or deterrence, the best response is to address the problems at issue through legislation that can account for all the affected interests.

As noted in Comment g [sic, we think this should be “b”], problems caused by dangerous products might have seemed to be matters for the law of public nuisance only because the term “public nuisance” has sometimes been defined in broad language that appears to encompass anything injurious to public health.  The traditional office of the tort, however, has been narrower than those formulations suggest, and contemporary case law has made clear that its reach remains more modest.  The rules of this Section reflect that modesty.


Continue Reading Bad Ideas Whose Time Has Passed

The Supreme Court decided the climate change case, American Electric Power Co. v. Connecticut, No. 10–174, slip op. (U.S. June 20, 2011), and the class action case, Wal-Mart Stores, Inc. v. Dukes, No. 10–277, slip op. (U.S. June 20, 2011), yesterday.  We can’t hope to compete with the deluge of general comment on

We’ve posted about one of the big certiorari grants from yesterday – Wal-Mart Stores v. Dukes – so today, we’re taking a look at the other one – American Elec. Power Co. v. Connecticut, aka the “global warming” case. Here’s the link to the SCOTUSblog collection of case resources. Just as with Dukes,

The two of us have been practicing law now for a little over 25 years. Bexis graduated law school in 1982 and Herrmann a year later (see our bios – links at the top – for the gory details). At big firms it takes a few years – five at least – before we could

One of the ways we feed this blog is doing what comes naturally to us lawyers – reading recent cases – and hoping that something inspires us. Sometimes that works. Sometimes that doesn’t. This week it worked too well. We’ve seen several decisions that bring back memories of stuff we’ve had to deal with over