Digital Commons Network^™

Saving Savings Clauses From Judicial Preemption, Sandra Zellmer

Sandi Zellmer

Savings clauses can be found in an array of federal statutes governing public health, welfare, and environmental quality. Like explicit preemption provisions, the function of a savings clause is to differentiate the boundaries of federal and state authority. Unlike preemption clauses, however, savings clauses strike the balance in favor of the states and state law remedies. Despite the existence of savings clauses, many of the Supreme Court’s recent preemption opinions have invalidated state laws that are more stringent than the federal regulatory threshold, based on a crabbed interpretation of statutory language, a myopic view of congressional purposes, or both. Even …

Punitive Damages And The Tobacco Industry: New Guidelines From The U. S. Supreme Court, Jean M. Eggen

Jean M. Eggen

No abstract provided.

Tackling The Competitive Sports Doctrine: A New Proposal For Sports Injuries In Texas, Griffin Toronjo Pivateau

Griffin Toronjo Pivateau

The Texas tort system faces an inevitable surge of litigation arising out of participation in sports and recreational activities. Thus far, Texas appellate courts have forged their own means of handling such cases through the use of the “competitive sports doctrine,” known elsewhere as the reckless-intentional standard. Although a recent feature of Texas law, the reckless-intentional standard is grounded in the old common law doctrine of assumption of the risk. The Texas Supreme Court abolished the affirmative defense of assumption of the risk in 1975, and has repeatedly criticized its rebirth as the competitive sports doctrine. On several occasions the …

The Principles Of Product Liability, In Symposium, Products Liability: Litigation Trends On The 10th Anniversary Of The Third Restatement, Richard W. Wright

Richard W. Wright

No abstract provided.

When Should Courts Pierce The Veil Protecting Aircraft Financiers?, David Wickersham

David K Wickersham

This article examines the liability of aircraft owners and lessors for the negligence of the actual operators of those aircraft. A federal statute intended to promote and foster civil aviation has been misapplied and misinterpreted by the courts, and this has neither increased air safety nor fostered growth in civil aviation.

Florida's Wrongful Death Act: Should Grandparents And Persons Standing In Loco Parentis Be Permitted To Recover Damages?, Jonah Levine

Jonah M Levine

This paper discusses whether grandparents and persons standing in loco parentis may recover for the wrongful death of their grandchildren and wards, respectively. Part II of this paper will discuss recovery for wrongful death at common law and by statute in the United States and in England. Part II of this paper will also discuss state statutes that either expressly permit grandparents or persons standing in loco parentis to recover or permit them to recover through intestate succession. Part III will analyze state case law where grandparents and persons standing in loco parentis were either permitted or denied recovery for …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

Sample Prescription Drugs And The "Learned Intermediary": Liability Without Preemption, Susan Poser

Susan Poser

Reflecting On Negligence Law And The Catholic Experience: Comparing Apples And Elephants, Randy Lee

Randy Lee

No abstract provided.

Torts Rationales, Pluralism, And Isaiah Berlin, Christopher J. Robinette

Christopher J Robinette

Acts And Omissions As Positive And Negative Causes, Richard W. Wright

Richard W. Wright

No abstract provided.

Healthcare Intermediaries, Alex Stein

Alex Stein

This article identifies various factors — legal and economic — that reduce the quality of medical care under the MCO framework. Specifically, it identifies MCOs’ functioning as platforms in a two-sided economy and the virtual absence of incentives on the part of MCOs and their doctors to compete with each other over the quality of medical care. The article also develops a law reform proposal that would unlock that competition.

The Myth Of Individualism And The Appeal Of Tort Reform, Martin A. Kotler

Martin A. Kotler

This Article examines the relationship between the American political culture of individualism and long-standing, well-established tort doctrine. Although much of the doctrine in the abstract is obviously reflective of the prevailing political culture, there remains a certain ambivalence. Thus, when judges and jurors are faced with deciding concrete cases before them, they frequently abandon their professed commitment to mythological notions of self-sufficiency and personal responsibility and find the injured plaintiff to be entitled to compensation.

The modern American tort reform movement’s recognition of this ambivalence underlies the essential strategy for reform. The reformers’ goals are more far reaching than the …

Phantom Parties And Other Practical Problems With The Attempted Abolition Of Joint And Several Liability, Nancy C. Marcus

Nancy C Marcus

In recent years, the allocation of responsibility to multiple tortfeasors and corresponding limitations on joint and several liability have been mired with uncertainty and change. This article describes the various forms of tort reform legislation limiting joint and several liability, explaining that some states limit joint and several liability according to the proportionality of the plaintiff's comparative fault, explaining that there is no clear majority approach to joint and several liability legislation and its interpretation by the courts, that a number of states have resisted the trend toward modifying joint and several liability, and that no state has enacted legislation …