Law Commons^™

Anti-Subordination Torts, Scott Skinner-Thompson

Publications

No abstract provided.

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

Scholarly Works

Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones

Faculty Scholarship

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis …

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake

Articles

In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation …

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

What Is The Settlement Rate And Why Should We Care?, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs’ litigation success, or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to …

Civil Rights In Ordinary Tort Cases: Race, Gender, And The Calculation Of Economic Loss, Martha Chamallas

The Ohio State University Moritz College of Law Working Paper Series

This article explores race and sex bias in the computation of damages for loss of future earning capacity, an important component of economic loss in personal injury cases. It analyzes recent cases in the United States and in Canada which reject the use of race and sex-based tables to determine awards for female and minority plaintiffs and explains the method used by the special master in the September 11th Compensation Fund. Chamallas explores objections to reform -- from both the “right” and the “left” –- and makes the case for connecting civil rights principles to civil litigation.

Controlling Identity: Plessy, Privacy, And Racial Defamation, Jonathan Kahn

Faculty Scholarship

This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had …

Why Constitutional Torts Deserve A Book Of Their Own, Michael Wells, Thomas A. Eaton, Sheldon H. Nahmod

Scholarly Works

Over thirty years ago, Marshall Shapo coined the term "constitutional tort" to denote a suit brought against an official, charging a constitutional violation and seeking damages. In the years since Shapo's pathbreaking article, the number of such suits has grown exponentially. The suits have generated a host of new substantive and remedial issues, yet conventional casebooks on constitutional law and federal courts give little attention to the area. That Professor Shapiro had four books to include in his review of "Civil Rights" casebooks in the Seattle University Law Review is some indication of a demand for teaching materials currently unmet …

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

Judicial And Adminstrative Enforcement Of Individual Rights Under The National Labor Relations Act And Under The Labor-Management Relations Act Between 1935 And 1990 - An Historical And Empirical Analysis Of Unsettled Intercircuit And Intracircuit Conflicts, Willy E. Rice

Faculty Articles

This Article is concerned with exploring the extent to which both the National Labor Relations Act of 1935 and the Labor-Management Relations Act of 1947 have protected individual employees' rights in administrative and judicial proceedings.

Velde V. National Black Police Association, Inc., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.