In recent years I have been presenting my business law students late in the semester with several of the widely circulated urban legend case summaries for evaluation. I present them just as the many abusive disseminators [e.g. Rush Limbaugh] have -- as if they are real cases. Most of the students' react that these cases don't make sense (i.e. they don't square with what they have studied about negligence, comparative negligence, assumption of risk, products liability, remedies, etc. during the semester). I then direct their attention to some of the websites that have been set up to debunk these legends. It's been a pretty good teaching experience.
________________________________
From: Academy of Legal Studies in Business (ALSB) Talk on behalf of Rosemary Hartigan
Sent: Tue 8/16/2005 8:59 AM
To: [log in to unmask]
Subject: Re: Public Convinced by Legal Urban Legends
Hi Michael,
So true!
This was, in part, the subject of the paper I presented at our last
conference. I was concerned that our students come into our courses
with what Marc Galanter (An Oil Strike in Hell: Contemporary Legends
About the Civil Justice System, 40 Ariz.L. REV. 717 (Fall 1998)) has
termed a "jaundiced view" of the civil justice system because of the
distorted popular press reports. The McDonald's case is a perfect
example of how distorted reporting leads to inaccurate views of not only
the case, but the legal system. I designed a lesson, based on the
McDonald's case and an urban legend to assist my MBA student in
critically evaluating the case. The lesson also led to a further step
in which many of the students critically evaluated received assumptions
(a la transformative learning theory) about the civil justice system.
My study of 115 students who completed the assignment confirmed
dramatically that the vast majority enter class with very inaccurate
views. Not only are they inaccurate, but they are surprisingly fervid.
After they learn the facts and the law (mostly through their own
research) , many were shocked at their own gullibility in believing
press reports and urban legends.
There is a an excellent law review article that systematically traces
the press coverage of the McDonald's case in great detail. Michael
McCann, William Haltom and Anne Bloom, Java Jive: Geneology of a
Juridical Icon, 56 MIAMI U. L. REV. 1. (2001). It details how the
press coverage stressed the amount of the jury award, the everyday
aspect of the cause of the injury, the "novel' claim that the coffee
was "too hot", and a description of the spill. Coverage left out the
fact that McDonald's had received over 700 previous complaints about the
temperature of the coffee (some resulting in lawsuits and settlements),
testimony at trial, juror's reactions, the plaintiff's request to
settle, McDonald's refusal to mediate, the location of the car, and the
plaintiff's location in the car. (Some of my students thought she was
driving.) Scientific information about the severity of the burns and the
legal basis of the claims was missing from most coverage. Later
coverage of the case largely neglected the judge's reduction of the
punitive damages award. Thus, the the general public is largely
ignorant of the corrective aspects of the system. (Most of my students
were not aware that judges routinely reduced punitive damages awards;
they also were not aware of FRCP 11.)
One of the larger issues is the "personal responsibilty narrative" that
Americans readily accept when it is applied to other individuals, but
not always when applied to themselves. Haltom, et. al. argue that
blaming and ridiculing individuals, like the plaintiff and the jury
members, deflects attention from systemic issues, such as corporate
responsibility, health care coverage, risk spreading, etc.
Another aspect is that the "jaundiced view" can lead managers to assess
risk unrealistically in that they have a heightened fear of large
lawsuits, when, in most business, it would be more prudent to invest in
litigation management at the lower end pre-complaint. McDonald's could
have done this in the Liebeck case.
Rosemary
Rosemary Hartigan
Director, Business and Executive Programs and Collegiate Professor
Graduate School of Management and Techology
University of Maryland University College
Michael O'Hara wrote:
>
>
>
>
>
>
>
>
>
>
> Public Convinced by Legal Urban Legends
>
> Urban legends about outrageous jury awards continue to circulate on the
> Internet and in the news. Many of these tall tales are widely accepted,
> and media observers say legends have helped to convince the public of the
> need for tort reform. Cases like the McDonald's coffee case also
> perpetuate myths, since many of the facts are left out of popular
> coverage. Myron Levin, LA Times 08/14/2005
> Read Article: LA Times
>
>
>
>
>
>
>
>
>Michael
>
>Professor Michael J. O'Hara, J.D., Ph.D.
>Finance, Banking, & Law Department Editor, Journal of Legal
>Economics
>College of Business Administration (402) 554 - 2014 voice fax (402)
>554 - 3825
>Roskens Hall 502 www.AAEFE.org
>University of Nebraska at Omaha www.JournalOfLegalEconomics.com
>Omaha NE 68182
>[log in to unmask]
>(402) 554 - 2823 voice fax (402) 554 - 2680
>http://cba.unomaha.edu/faculty/mohara/web/ohara.htm
>
|
