Open Access. Powered by Scholars. Published by Universities.®
- Publication
- Publication Type
Articles 1 - 7 of 7
Full-Text Articles in Law
Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten
Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten
Michigan Law Review
It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …
Women Behind The Wheel: Gender And Transportation Law, 1860-1930, Margo Schlanger
Women Behind The Wheel: Gender And Transportation Law, 1860-1930, Margo Schlanger
Book Chapters
Gender difference is only infrequently mentioned in recent negligence cases. To contemporary (mostly non-essentialist) eyes, gender difference seems to appear only mildly relevant to tort law's area of concern: care and harm to others and self. But in the early days of modern tort law, when gender differences loomed larger in the consciousness of American jurists, and unabashedly so, judicial opinions more frequently grappled with how negligence doctrine ought to take account of female difference. This chapter explores opinions published between approximately 1860 and 1930 that illuminate this issue in cases involving women drivers and passengers of cars and wagons. …
The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon
University of Michigan Journal of Law Reform
Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as …
The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz
The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz
Articles
Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …
Privity Of Contract And Tort Liability, Herbert F. Goodrich
Privity Of Contract And Tort Liability, Herbert F. Goodrich
Articles
Two parties, A and B, make a contract whereby B undertakes to perform certain services for A. He performs his task in a negligent manner, and as a consequence C, a third party, suffers injury. Has C rights against B?
Sales: Liability For The Presence Of Mice And Other Uncommon Things In Food, John B. Waite
Sales: Liability For The Presence Of Mice And Other Uncommon Things In Food, John B. Waite
Articles
A group of recent decisions presents a somewhat farcical conformity with Montesquieu's thesis that "law" may vary with time and geography. It strikingly illustrates, also, the importance of the particular theory of liability upon which a suit is predicated. The unusual similarity in detail of the operative facts of these cases lends peculiar emphasis to the difference in the judgments rendered.
Contract Limitations Of The Common Carrier's Liability, Edwin C. Goddard
Contract Limitations Of The Common Carrier's Liability, Edwin C. Goddard
Articles
When Mr. Justice NELSON, in the New Jersey Steam Navigation Company v. Merchants Bank, speaking of the power of a common carrier by special agreement to restrict his obligation, said for the court: "We are unable to perceive any well founded objection to the restriction," he opened the way for an amount of litigation which, in volume and expense, both to carriers and shippers, scarcely finds its equal on any other question. The Supreme Court of North Carolina was well within the limit when it said: "The right of a common carrier to limit or diminish his general liability by …