Digital Commons Network^™

Cancellazione Delle Società Di Capitali E Responsabilità Di Soci E Liquidatori, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

La Responsabilità Per Il Prospetto Fra Diritto Comunitario, Legge Nazionale E Regolamento Consob, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

The Change In Knowledge Proposal: Repairing Preemption Doctrine In Medical Products Liability, Yite John Lu

Yite J Lu

This Article proposes a new rule that would allow the FDA to achieve the best balance of medical product availability and safety without interference from tort law when the agency has adequately reviewed the safety science. After an analysis of the FDA’s competency to review, and manufacturers’ ability to hide, safety concerns, this Article argues that FDA review is adequate during the initial approval process, but the agency cannot adequately respond to newly acquired safety information that arises post-market. To take advantage of this finding, the change in knowledge proposal would require tort plaintiffs to show a change in the …

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

New York Naivete - Trust Me, I'M A Doctor, Kenneth L. Sanders Md, Geoffrey B. Sanders

Kenneth L Sanders MD

Under New York law, a defendant physician may submit a self-serving expiation of absence of negligence in lieu of an impartial, independent and impartial opinion of a third-party expert. This practice is iniquitous to a plaintiff who has suffered medical malpractice and who is required to pay for an independent physician’s affirmation that malpractice has taken place. Focusing attention upon the questionable origins of this principle may allow legal or legislative rectification.

Damages To Business Interests, R. Steven Thing

R. Steven Thing

No abstract provided.

Contract + Tort = Property: The Trade Secret Illustration, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a …

Is Privity Dead? Should It Be?, David F. Tavella

David F. Tavella

Privity, a concept that is over 150 years old, may have worked well in the 19th Century, seems outdated in a time national accounting firms and law firms. In the 19th and early 20th Centuries, when a person may have gone to an agent, accountant, or other service provider for advice, there was no thought that the advice would be distributed to potentially millions of people with the possibility of billions of dollars in losses for negligent performance. Today, this is common in the accounting and insurance industries. The question is whether a concept, even one firmly rooted in American …

Does 'Sorry' Incriminate? Evidence, Harm And The Meaning Of Apologies, Jeffrey S. Helmreich

Jeffrey S. Helmreich

Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The state measures thereby reinforce a prevailing …

Due Diligence, Trattative E Fattispecie Di Responsabilità Civile, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Cyberlaw 2.0, Jacqueline Lipton

Jacqueline D Lipton

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Fear Of Facebook: Private Ordering Of Social Media Risks Incurred By Healthcare Providers, Nicolas P. Terry

Nicolas P Terry

The last two years have seen important quantitative and qualitative shifts in social media use patterns in the healthcare environment. Reacting to present and future risks there has been a rapid deployment of private ordering: social media policies and other contractual constructs emanating from physicians, professional organizations, employers and educators. These private, often contractual attempts to regulate online interactions or social media conduct are not all benign, themselves creating ethical or legal risk. This article, a follow-up to Physicians And Patients Who ‘Friend’ Or ‘Tweet’: Constructing A Legal Framework For Social Networking In A Highly Regulated Domain, 43 IND. L. …

Funeral Protests, Privacy, And The Constitution: What Is Next After Phelps?, Mark Strasser

Mark Strasser

In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a funeral. In a relatively short opinion, the Court suggested that the legal issues were straightforward—the First Amendment precludes the imposition of tort damages when the comments at issue involve matters of public concern. Yet, the Court failed to explain whether those comments that were not of public concern were somehow immunized by those that were, and also failed to explain how the holding fits into the current defamation and privacy jurisprudence. The opinion …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

La Responsabilità Del Socio Di S.R.L., Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Shirking The Duty To Defend In Florida: Is Assignment The Exception To Argonaut?, Matthew J. Jowanna

Matthew J. Jowanna

A lawsuit is filed by a plaintiff and the defendant is served. The defendant has a drawer full of liability insurance policies and, therefore, the insured defendant sends a copy of the served complaint to any and all insurance carriers that may provide coverage for the claim. The insured defendant then receives a few coverage denials for reasons such as the event at issue did not occur within a certain policy period or that the insured’s private automobile policy does not provide coverage for a commercial general liability claim. In any event, the denials appear to be valid - so …

Shirking The Duty To Defend In Florida: Is Assignment The Exception To Argonaut?, Matthew J. Jowanna

Matthew J. Jowanna

A lawsuit is filed by a plaintiff and the defendant is served. The defendant has a drawer full of liability insurance policies and, therefore, the insured defendant sends a copy of the served complaint to any and all insurance carriers that may provide coverage for the claim. The insured defendant then receives a few coverage denials for reasons such as the event at issue did not occur within a certain policy period or that the insured’s private automobile policy does not provide coverage for a commercial general liability claim. In any event, the denials appear to be valid -so the …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Il D.Lgs. N. 39/2010 E La Nuova Responsabilità Civile Da Revisione, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Does Mass Product Tort Litigation Facilitate Or Hinder Social Legislative Reform? A Comparative Study Of Tobacco Regulation, Jeffrey S. Quinn

Jeffrey S Quinn

This Article, Does Mass Product Tort Litigation Facilitate or Hinder Social Legislative Reform? A Comparative Study of Tobacco Regulation, analyzes the competing arguments for and against the use of tort litigation as a means of creating social reform. The value of current scholarship is limited because authors frequently allow their biases to influence their conclusions. Authors in favor of public health reform argue in favor of using tort litigation to create social reform, while authors in favor of a strict separation of powers approach argue against using tort litigation to create social reform. This Article, however, synthesizes the scholarly debate …

The Market In Unmatured Tort Claims: Twenty Years Later, Stephen G. Marks

Stephen G Marks

In 1989, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. And yet it remains unadopted in all jurisdictions. There is a reason for this. In this paper I reexamine the proposal as to its likely intended and unintended effects. This article argues that, for such a market to work, three modifications must be made. First, the tort awards must be based on optimal-deterrence-damages rather than full-compensation damages. (The paper provides an explanation of full-compensation damages, optimal-deterrence damages, and optimal-insurance damages.) Second, potential tortfeasors must not be allowed …

Facebook Fraud: Facebook Misrepresents Its Privacy Policy To Its Users, Douglas Jackson

Douglas Jackson

As Facebook grows in popularity, the amount of privacy given to its users shrinks. Users are often unaware of this deterioration of their privacy. This unawareness has resulted in job loss and job opportunity loss because users post harmful information they thought was private. Facebook users post this information because Facebook does not accurately represent the dangers of posting potentially harmful information on Facebook. Tort law should provide a remedy to these users for Facebook's misrepresentation. Additionally, the law should adapt to the abrupt changes of the Internet. The Internet has created a cyberworld where brick-and-mortar laws simply do not …

Violent Video Games & "Constitutionalized" Negligence, Deana Ann Pollard Sacks

Deana A Pollard

Violent video games create serious risks of harm to children’s brain functioning, health, and safety. Extremely wealthy game producers’ demonstrated disregard for children’s safety raises questions about lower courts’ negligent speech liability rules that effectively bar tort liability for unreasonably dangerous speech, including violent video games. Violent Video Games & “Constitutionalized” Negligence reviews the latest scientific data on the effects of violent video games on children and challenges the prevailing negligent speech liability rules generally, and specifically relative to violent video game producers’ relationship with children. Most courts have adopted the Brandenburg incitement test to prove fault and causation in …

Shute: The Math Is Off, Tom Cummins

Tom Cummins

This year marks the twentieth anniversary of the Court’s decision in Carnival Cruises v. Shute. Reversing the common law rule that forum selection clauses in form contracts are presumptively unenforceable, the Court reasoned that such clauses should be enforced because consumers “benefit in the form of reduced [prices] reflecting the savings that the [firm] enjoys by limiting the fora in which it may be sued.” The Court’s calculation was off, however, because it failed to account for the latent costs of such clauses. This Essay begins the project of getting the math (and, perhaps, the law). The thesis is that …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

If A Helicopter Hits An Offshore Platform And Crashes At Sea, Where Do You Bury The Survivors?, Ryan A. Hackney

Ryan A Hackney

What law governs wrongful death claims when a helicopter crashes into an offshore oil platform and falls into the sea? No fewer than seven federal opinions have focused on this exact question, the answer to which can make a big difference to the victim’s survivors. If the Outer Continental Shelf Lands Act (“OCSLA”) applies then the survivors may seek pecuniary, nonpecuniary, and possibly punitive damages under the law of the adjacent state. If the Death on the High Seas Act (“DOHSA”) applies, however, the survivors may seek only pecuniary damages, which in many cases will mean no recovery at all. …

A Political Question: Public Nuisance, Climate Change And The Courts, Richard O. Faulk, John S. Gray

Richard Faulk

When it comes to climate change regulation, one of the great discussions of our day is whether the political branches of government or the judiciary should lead the way. Is it appropriate or wise to use the crucible of the courtroom to forge standards regarding what emission levels are, and are not, acceptable? In other words, is the use of tort litigation in this context a legitimate judicial exercise, or does the judiciary overstep its bounds by reaching impermissibly into the political sphere? Although the poet’s imagination may dream of leaping to seize an otherwise inaccessible prize, wise jurists know …