Recent Articles from the Faculty

The Vampires Always Bite (Consumers)

It is time once again for the great debate between those who would suggest that the government avoid interfering in the workings of the marketplace, and those that would argue that government should strictly regulate the workings of the market.

I have found the answer to such lofty notions in a summer blockbuster involving allegedly self-restraining vampires, Twilight Eclipse.

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BP response

In criminal law, some jurisdictions provide the defense of mistake of law. It is a carefully hedged defense, for obvious reasons (it's easy for someone to say, "I got this cryptic information that suggested to me that my actions were perfectly legal"). In Texas, for instance, the defense exists, but to use it, you must have relied on advice given by a government official charged with interpreting the law (a court, for instance, or an attorney general's opinion), and the advice has to be in writing.

I recall only one case that involved this mistake of law concept (and none with mistake of fact): I prosecuted a pollution case against Brown & Root, and its defense was a phone call to the EPA, which allegedly said, "Go ahead and burn all that waste rubber and you won't violate any environmental laws." The judge fined B & R $ 50: a major victory. The criminal defense doesn't merit the heavy treatment that is given to it in casebooks; reading the statute and applying it to a couple of hypothetical problems is actually better for both discussion and retention.


In civil cases, again it depends on the jurisdiction, but the defense is contributory negligence by a third person. Jurisdictions vary about whether a person who cannot be negligent (a child, or the government) can be a contributor, but in Texas, yes. Then, the question is how the causation is apportioned. We have six or seven different apportionment schemes, including one that involves equal proportions to each tortfeasor without regard to percentage causality, but in most cases today, it's probably proportional responsibility (of which there are multiple varieties). So if a jury were to find BP or a contractor 45% causally negligent and the government 45% causally negligent and someone else 10% negligent, liability would be apportioned according to these percentages (probably).


But it's much more complicated, and there are various caps (e.g., a person with less than a certain percentage isn't jointly and severally liable, just liable for that person's proportion).

BP response

That was Wyeth v. Levine, in which the Court decided that a state tort lawsuit by a woman who had lost an arm because of an intravenous use of Phenergan (an antinausia drug) was not preempted by the fact that Phenergan had been approved by FDA.  But I think that decision probably turns on some FDA-specific issues and may not have much precedential value in other industries. 


The Court drew on American Honda v. Geier's discussion which distinguished "minimal" schemes of federal regulation (which merely set a floor on safety standards but allow states to set higher standards through state legislation or state tort lawsuits), vs. "optimal" schemes of federal regulation (in which the fed carefully balances costs and benefits of regulating an industry and seeks to set both a ceiling and a floor for safety standards that can be imposed on the industry).  FDA regulation had for over sixty years been considered to be a scheme of minimal regulation that only sets a floor on drug safety--a minimal safety standard to be supplemented through state tort law and regulation of medical practice, etc.  In 2006, the politicized FDA of that time had made some utterances in the preamble to a guidance document to the effect that FDA regulation now should be considered an optimal scheme of regulation which preempts state tort lawsuits against pharmaceutical companies.  Wyeth tried to latch onto those statements by FDA and get the court to give deference to them and make a ruling that FDA regulation now was an optimal scheme of regulation that should preempt state tort lawsuits against drug manufacturers.  The Court didn't buy it.  Wyeth v. Levine served to put to bed an attempt earlier this decade by a politicized FDA to aid attempts to eliminate lawsuits against pharmaceutical manufacturers.  So it was dealing with an odd set of circumstances particular to the drug industry.

Response on BP

Wasn't there a Supreme Court case this past year about FDA approval for a drug cutting off any tort claims of harmful effects of the drug? My vague recollection is that it came out that FDA's blessing was not a complete defense to tort claims based on the drug being harmful.

BP & government "approval"

Hope your summers are going well.  The mess in the Gulf brings to mind a question.  The MMS (Dept of Interior division) basically approved the well drilling and completion amendments that BP requested.  It also approved the Environmental Impact Statements, which we now know were very deficient (walruses in Gulf of Mexico).

What is the effect of such government approval of what appears now to be negligent or incompetent acts? I assume BP and others will assert such approval rescues them from any punitive damages, but I recall, vaguely, that relying on an IRS agent to help you fill out your tax form does not, in the end, protect you from having to pay more tax, if agent gave you wrong advice.

Response to Prof. Duncan's editorial

Meredith Duncan's piece really is a fine editorial. On the one hand, I can understand the reluctance of the media to make a point of the race of a skier. That instinct comes from the idea that race should be irrelevant to achievement. It’s actually a good instinct—in some contexts. But not all.

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Race Still Has A Role to Play in Post-Racial America

I am an Air Force brat, just old enough to recall my parents' concern for our family's welfare when we traveled through the South from base to base. Today, thankfully, my family is free to travel the country without fear of being turned away from hotels or restaurants because of our skin color.

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An Experiment on Law Review Placement

Our faculty had a lunch discussion of non-traditional legal scholarship and publishing today. As someone who sees growing convergence between scholarship in law and scholarship in other disciplines and who wonders how long the pre-Internet model of legal publishing is likely to persist, I started thinking about the classifying function of traditional legal scholarship.

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Response to Prof. Crump

Anyone who has taken a marketing course (or sold drugs in Baltimore) would realize the importance of rebranding. Merely restating the curriculum as Torts, Contracts, etc. would not be innovative.

 Many of us teach those tools of the trade in a single course, but suffer from a branding problem. “The actual real day how you would do it in real life practice of antitrust law course” would have too long a name.

I’m not sure I agree that the “what-do-you-think-method” is bad. It can be a good tool if used properly. I use it to make students craft remedies for antitrust violations so that they can see the consequences of knee jerk reactions in terms of regulation or free market philosophy.


'Innovation' redux

Here is the “innovative curriculum” at the new UC Irvine Law School. It’s not really very innovative, even though it has different names for the courses, but it does scrap the traditional curriculum and try something different. One thing that looks interesting about this curriculum is that it seems to repeat the what-do-you-think-and-how-do-you-feel-about-this-court-opinion method a little less.


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