TIPS 75th Anniversary

The Tort & Insurance Law Jounal

Summer 2001
Volume 36, Number 4

Table of Contents


Anastasoff v. United States and the Debate over Unpublished Opinions
John P. Borger and Chad M. Oldfather

Trade Secrets and Inevitable Disclosure
Linda K. Stevens

Evolving Tension Between HMO Liability Precedent and Legislation
Nancy R. Mansfield, Joan T.A. Gabel, and Laurie B. Jablow

When All Else Fails, Blame Madison Avenue: Negligent Marketing Claims In Firearm Litigation
Anne G. Kimball and Sarah L. Olson

Know Thy Self-Insurance (and Thy Primary and Excess Insurance)
Mark W. Flory and Angela Lui Walsh

Insurance and Bankruptcy
Michael Sean Quinn and Brian S. Martin

The Many Busts of Aristotle on Display: A Review of Calnan's Justice and Tort Law
Richard O. Brooks

Abstracts

Anastasoff v. United States and the Debate over Unpublished Opinions
John P. Borger and Chad M. Oldfather

  This article briefly traces the history of proposals for and the practice of using unpublished opinions. It then discusses the Eighth Circuit's opinion in Anastasoff v. United States, as well as the fate of the opinion, the early reactions to its rationale and prescriptions, and some of the questions that it raised but did not answer. The article then addresses recent empirical studies that suggest that the courts have become too inclined toward nonpublication. Two of the studies found three signs that were characterized as "warning signals" about the practice of issuing unpublished opinions: (1) a substantial variance in publication rates among the circuits, which may lead to some circuits shaping precedent more than others, (2) "a surprising number of reversals, dissents, and concurrences among unpublished opinions," and (3) an association between rules allowing citation of unpublished opinions and lower publication rates. In any case, suggest Borger and Oldfather, the trend toward unpublished opinions is likely to lead to a loss in the judiciary's credibility.

Top Of Page


Trade Secrets and Inevitable Disclosure
Linda K. Stevens

  This article explains the various definitions of "trade secret" used by courts today, discusses the primary state and federal statutes governing trade secrets, and explains how trade secrets often are protected by means of injunctions prohibiting competitive activity, even in the absence of a noncompete agreement. After a brief introduction, Part II examines various definitions of trade secrets and confidential information and explains why the distinction between the two makes a difference. Part III discusses the use of injunctive relief, the inevitable disclosure doctrine, and noncompete agreements. Part IV analyzes the Economic Espionage Act, which makes trade secret appropriation a federal crime, and Part V differentiates between the gathering of competitive intelligence and the use of espionage. Also included are an example of a bifurcated confidentiality provision and a chart of cases pertaining to the inevitable disclosure of trade secrets.

Top Of Page


Evolving Tension Between HMO Liability Precedent and Legislation
Nancy R. Mansfield, Joan T.A. Gabel, and Laurie B. Jablow

  In a unanimous decision in June 2000, the U.S. Supreme Court dealt a blow to patients by holding that health maintenance organizations cannot be sued in federal court for treatment determinations. The ruling in Pegram v. Herdrich determined that a physician-owned HMO cannot be sued in federal court as an Employee Retirement Income Security Act fiduciary because the HMO's decisions contain both administrative and treatment components that are intertwined. The Pegram decision contributes to the tension between case precedent and the move to expand HMO liability under new state statutes. In recent years, states have initiated legislation to enable patients to directly sue HMOs for the failure to exercise ordinary care. This article first reviews the limitations on HMO liability resulting from limitations in ERISA and the recent U.S. Supreme Court decision that reinforces these limitations. The article then explores legislative responses to limited federal liability for HMOs, with emphasis on the statutes in Texas and Georgia. Finally, this article reviews and analyzes the courts' responses to state-level HMO legislation.

Top Of Page


When All Else Fails, Blame Madison Avenue: Negligent Marketing Claims In Firearm Litigation
Anne G. Kimball and Sarah L. Olson

  For the last twenty years individuals injured by the intentional or criminal misuse of firearms have brought suits sounding in product liability, negligence in design, warnings or distribution, and ultrahazardous or abnormally dangerous activities in an effort to recover damages from firearm manufacturers. Courts have dismissed case after case. As traditional tort theories repeatedly fail in these cases, plaintiffs have turned to alternate theories based on alleged negligence in marketing firearms. As expressed in recent suits, these theories posit that firearm manufacturers may be liable for the remote and attenuated criminal use of their products by unidentified actors because the manner in which firearms are lawfully marketed allegedly permits those firearms to reach the hands of those who criminally injured the plaintiffs. Nevertheless, negligent marketing claims, and negligent advertising claims in particular, have failed to provide a basis for successful claims against the firearm industry. Plaintiffs are unable to establish the fundamental requirements of such causes of action: a duty, a breach, and reliance. The common law of many jurisdictions has already flatly rejected such claims and, on any principled legal basis, should continue to do so.

Top Of Page


Know Thy Self-Insurance (and Thy Primary and Excess Insurance)
Mark W. Flory and Angela Lui Walsh

  Self-insurance is a form of risk management that can be very cost effective. The trade-off is that, when an unanticipated loss occurs, insureds with SIRs, like insurers, must absorb liability for their risk. With the exception of matters subject to specific legislation, the rights and obligations associated with an SIR, fronting policy, or other form of self-insurance can be predetermined to a large degree through the careful negotiation and drafting of policy language. A company considering self-insurance should be aware of the issues most likely to arise in its business and should discuss those issues with its insurance agent and prospective insurers. The self-insured should not only read any endorsements describing its SIR and concomitant obligations but should also consider the interaction between such endorsements and the rest of the policy as a whole as well as other policy forms commonly used in the industry. The time and expense employed in such preparation will be rewarded in terms of less litigation and more satisfactory resolutions where litigation cannot be avoided.

Top Of Page


Insurance and Bankruptcy
Michael Sean Quinn and Brian S. Martin

  This article is designed to be a starting point for insurance lawyers who need to know some bankruptcy fundamentals. For the insurance lawyer, the most important piece of information presented in this article is that, if a fair amount of money is at stake, there are seven reasons to involve a specialist: (1) The U.S. Bankruptcy Code is a complex, highly integrated statute with hundreds of volumes of cases interpreting it; (2) Bankruptcy proceedings are subject to their own complex rules and timetables, as well as the Federal Rules of Civil Procedure; (3) Bankruptcy courts have national and local rules with prescribed timetables; (4) Local knowledge is important. If a lawyer sets foot in a bankruptcy court, that lawyer is presumed to know what every reasonable and informed bankruptcy practitioner would know about bankruptcy law, procedure, and customs; (5) activities with insolvent persons and entities involve inherent dangers for lawyers. They may have duties and exposures that others do not; (6) The jargon and the speed at which many issues are disposed of in bankruptcy courts will bewilder the novice; and (7) bankruptcy is becoming increasingly internationalized.

Top Of Page


The Many Busts of Aristotle on Display: A Review of Calnan's Justice and Tort Law
Richard O. Brooks

  Several scholars have essayed books and articles about law and justice, and some have articulated a detailed theory of justice and sought to relate that theory to law in general, or to a body of law in particular. This article reviews one such effort as part of a more general inquiry into the possibility of restoring serious thought about justice in modern law. Alan Calnan's 1997 book Justice and Tort Law is a serious effort to understand justice and its relationship to tort law. It is, moreover, an example of the outpouring of literature pertaining to Aristotle's views of justice and law. The renaissance of Aristotelean thought and its implications for understanding modern law is not limited to inquiries about justice, but extends to a range of Aristotelean concepts, including deliberation, practical reason, rhetoric in law, and equity.


Top Of Page

The Tort and Insurance Law Journal


TIPS LEGAL DISCLAIMER --
The materials at this site, including the links to other Web sites, have been provided by the Tort Trial & Insurance Practice Section of the American Bar Association for informational purposes only and do not constitute legal advice, the practice of law, or the endorsement of the content provided by any linked site. Use of this site does not create or constitute, in any way, an attorney-client relationship between the ABA, TIPS, their entities, or any individual members and the viewer of this site. Neither does the ABA, TIPS, their entities, nor any of their members assume any responsibility for any misinterpretation or misapplication of the information contained on this site by the viewer, or of the content of any Web sites linked to this site. Points of view or opinions at this site do not necessarily represent the official policies or positions of the ABA, TIPS, or any of its entities or members. Users of this site should not act upon any information received without seeking the advice of professional legal counsel