Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.
• Position: Bibliography

This is a selective bibliography of current law review literature of interest to defense counsel. Main articles are identified by naming the author or authors. The designations "Note," "Comment," etc. are as listed in the publication, with the authorship, if given, shown in parentheses. Symposiums are generally shown by title.

ACADEMICS LOOK AT TORT REFORM

Tort reform was discussed extensively in the context of the 2004 elections in the United States. There is an on-going, often contentious debate about the American tort system and its uses and abuses. In February 2004, the Emory Law Journal hosted the 2004 Randolph W. Thrower Symposium, which considered "The Future of Tort Reform: Reforming the Remedy, Re-Balancing the Scales." Papers presented at the symposium analyze the successes and failures of those reforms already implemented and offer suggestions for changes where they might be useful.

An unexpected result

Some of the success in tort reform is a result of more than just the formal changes in the laws that have been enacted. Stephen Daniels and Joanne Martin, senior research fellows at the American Bar Foundation and faculty associates in the Center for Legal Studies at Northwestern University, discuss some of this "strange" successes in their article "The 'Strange' Success of Tort Reform," 53 Emory Law Journal 1225 (2004). The authors look at empirical materials from Texas, focusing specifically on automobile accident cases. In Texas, tort reform has not made any changes to the laws that govern car accident litigation. The focus of tort reform legislation has been joint and several liability, punitive damages, frivolous lawsuits, deceptive trade practices, venue, and medical malpractice.

And yet, despite the fact that there have been no changes to the governing legal principles, auto accident cases have declined significantly over the past decade. Daniels and Martin credit this decline to the fact that changes in the market environment have made it harder for lawyers to stay profitable taking these kinds of cases. They examine the effects that aggressive, tort reform public relations campaigns have had on the market, and how those changes have impacted attorneys who used to be able to rely heavily on auto accident cases to sustain their practices.

An unintended consequence

A second article in the symposium addresses some of the unintended consequences of damage caps, which are popular tort reform measures and have been enacted in several states. Lucinda M. Finley, Frank Raichle professor at the law school at the State University of New York at Buffalo, analyzes how damage caps have a disparate impact on men and women in her article, "The Hidden Victims of Tort Reform: Women, Children, and the Elderly," 53 Emory Law Journal 1263 (2004). The author reviews damage award data from California, Florida and Maryland, three states that have imposed caps on non-economic damages in tort cases.

She finds that because the nature of injuries to women in many tort cases--gynecological medical malpractice, sexual assault--are not primarily economic, but more emotional in nature, damage awards to women are dramatically reduced when caps are imposed on non-economic damages. She also notes that awards to the elderly, because their losses are not high economically, given the fact...