Monthly Archives: July 2011

Episode 067 – Conversation with Prof. David Reiss

Episode 067 – Conversation with Prof. David Reiss.mp3

In this podcast, Brooklyn Law School Professor David Reiss discusses two of his most recent white papers, Fannie Mae, Freddie Mac, and the Future of Federal Housing Policy and Fannie Mae and Freddie Mac: Implications for Credit Unions. Prof. Reiss, who concentrates on real estate finance and community development, examines how the two companies should exit their conservatorship and conceptualizes the reform of the two companies and the manner in which the residential mortgage market is structured. He explores implications that will reach throughout the global financial markets that are of key importance to the future of American housing finance policy. For more of his writings, see the list at this link.

Independence Day

The Brooklyn Law School Library will be open 9am to midnight on Monday July 4th, the 235th anniversary of the Declaration of Independence. Patrons visiting the BLS Library on the Fourth of July can review the Annotated United States Constitution and Declaration of Independence by Jack N. Rakove (Call # KF4527 .A56 2009). This compact and easy to read book will help readers renew their appreciation for the genius of those who drafted the blueprints for America’s freedom and its republican form of government. This scholarly analysis of America’s founding documents makes clear the value of revisiting those texts and reviewing how they have been construed throughout US history. The famous first 110 words from Jefferson’s famous document read:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Although rarely cited in contemporary case law, the Declaration of Independence has a role in how courts review legislation. A recent article Representative Self-Government and the Declaration of Independence by Alexander Tsesis analyses how the courts can use those famous words when ruling on the constitutionality of statutes. One such example is Citizens United v. Federal Election Commission, where the US Supreme Court prevented Congress from differentiating between corporations’ and citizens’ campaign expenditures. The article uses the Declaration’s phrase about inalienable rights of the people, particularly freedom of political expression, to analyze the Court’s equating of corporations and natural people for First Amendment purposes in Citizens United v. Federal Election Commission. It goes on to conclude that “by granting corporations equal First Amendment protections on campaign speech, the Court attenuated the people’s unique place in electoral politics.”

Film on Tort "Reform" Agenda

HBO is airing through late July the documentary Hot Coffee about the tort “reform” industry that used the famous 1994 case of Stella Liebeck v. McDonald’s Restaurants, P.T.S., Inc. and McDonald’s International, Inc. as a synonym for court abuse. The plaintiff sued McDonald’s for damages resulting from being scalded by hot coffee served at a temperature of 180–190 °F resulting in third-degree burns. The story may be familiar as it became symbolic for frivolous claims. But there is more to the story as the documentary shows the publicity campaign that influenced public opinion to view the case as a symbol of frivolous claims. The trailer is here.

“Hot Coffee” addresses complicated legal arguments in the Liebeck and other cases with greater detail than proponents of tort reform provide. For example, the Liebeck trial testimony showed that at 180 to 190 °, McDonald’s coffee was hotter than that served by other restaurants, that it received at least 700 complaints about hot coffee in the previous decade and paid more than half a million dollars in settlements, as reported in a 1994 Wall Street Journal article A Matter of Degree: How a Jury Decided That a Coffee Spill Is Worth $2.9 Million — McDonald’s Callousness Was Real Issue, Jurors Say, In Case of Burned Woman — How Hot Do You Like It?

Plaintiff’s injuries included third-degree burns on her thighs and groin area for which she was hospitalized for a week and had to undergo painful skin grafts. Before suing, she wrote McDonald’s requesting that it cover her uninsured medical bills and incidental costs of about $20,000. McDonald’s offered $800. A mediator recommended that McDonald’s pay a settlement of $225,000 but the company refused. After a seven day trial, jurors awarded the plaintiff $160,000 in compensatory damages and $2.7 million in punitive damages. After the verdict, the trial judge slashed the punitive damages by more than 80% to $480,000. The case settled for an undisclosed amount.
The BLS Library has in its collection Products Liability and Basic Tort Law by Martin Alan Kotler (Call # KF1296 .K68 2005) which discusses the effort to carve out separate spheres for tort and contract law and the (largely political) impetus for tort and products liability reform in the courts, state legislatures and Congress. Gerald L. Shargel, a Practitioner-in-Residence at Brooklyn Law School, recently wrote in a Daily Beast article titled Scalding Takedown on Tort Reform saying that the film maker Susan Saladoff shows that the aim of the “reformers” is to shield large corporations and medical professionals from being held accountable.