Law Commons^™

Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Attorney General Bradford’S Opinion And The Alien Tort Statute, Curtis A. Bradley

Faculty Scholarship

In debates over the scope of the Alien Tort Statute (ATS), one historical document has played an especially prominent role. This document is a short opinion by U.S. Attorney General William Bradford, issued in the summer of 1795, concerning the involvement of U.S. citizens in an attack by a French fleet on a British colony in Sierra Leone. Numerous academic articles, judicial opinions, and litigation briefs have invoked the Bradford opinion, for a variety of propositions, and the opinion was discussed by both sides in the oral argument before the Supreme Court in the first hearing in the pending ATS …

Recovery Of “Intrinsic Value” Damages In Case Of Negligently Killed Pet Dog, William A. Reppy Jr., Calley Gerber

Faculty Scholarship

The North Carolina Court of Appeals, in a case where negligent killing of a pet dog with no market value was admitted, has denied recovery of “intrinsic” damages (also called “actual” damages). Shera v. NC State University Veterinary Teaching Hospital, 723 S.E.2d 352 (N.C. App. 2012). Because the holding is narrow and the type of damages denied are not the same as emotional damages, a close look at the decision is warranted.

A Comment On Restatement Third Of Torts’ Proposed Treatment Of The Liability Of Possessors Of Land, George C. Christie

Faculty Scholarship

In §§ 51 and 52 of the forthcoming second volume of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, the reporters have sought to accommodate the trend to extend the liability of possessors of land to trespassers. The courts that have led the way in this legal transformation of the traditional common law have largely focused on the foreseeability of the trespasser and of the likelihood of injury from the disrepair of the premises. The Restatement (Third) takes a different approach by focusing on the flagrancy of the trespass, a concept with significant moral connotations. I argue …

Causation In The Fiduciary Realm, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee

Faculty Scholarship

No abstract provided.

Punitive Damages And Class Actions, Francis Mcgovern

Faculty Scholarship

The union of punitive damages and class actions can be aptly described with Samuel Johnson’s famous quotation regarding marriage: “The triumph of hope over experience.” By most conventional wisdom, there is little future for plaintiffs or defendants who desire to resolve punitive damages claims globally using the procedural vehicle of a class action. From a conceptual perspective, however, there are circumstances under which the union could function. This Article explores those possibilities, not in the spirit of normative support, but in the spirit of exploring theories that may have some prospective vitality. Notwithstanding the chilly reception that punitive damages class …

The Frequency, Predictability, And Proportionality Of Jury Awards Of Punitive Damages In State Courts In 2005: A New Audit, Neil Vidmar, Mirya Holman

Faculty Scholarship

The state of punitive damages in the United States has been a controversial topic for more than three decades, resulting in litigation reaching the U.S. Supreme Court and state supreme courts. Various business advocacy groups have sought to drastically curb or eliminate punitive damages while plaintiffs’ lawyers and consumer groups vigorously defend the use of punitive damages. State legislatures have responded with many substantive and procedural reforms over the years. Yet, in Exxon Shipping Co. v. Baker, the United States Supreme Court, while approvingly citing empirical evidence indicating that there are “not mass-produced runaway awards” and that “by most accounts …

Juries And Medical Malpractice Claims: Empirical Facts Versus Myths, Neil Vidmar

Faculty Scholarship

Juries in medical malpractice trials are viewed as incompetent, anti-doctor, irresponsible in awarding damages to patients, and casting a threatening shadow over the settlement process. Several decades of systematic empirical research yields little support for these claims. This article summarizes those findings. Doctors win about three cases of four that go to trial. Juries are skeptical about inflated claims. Jury verdicts on negligence are roughly similar to assessments made by medical experts and judges. Damage awards tend to correlate positively with the severity of injury. There are defensible reasons for large damage awards. Moreover, the largest awards are typically settled …

Hedonic Adaptation And The Settlement Of Civil Lawsuits, John Bronsteen, Christopher J, Buccafusco, Jonathan S. Masur

Faculty Scholarship

This Essay examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on the probability of pretrial settlement in civil litigation. The existing economic and behavioral models of settlement are incomplete because they do not incorporate the effect of adaptation on the sum for which a plaintiff is willing to accept an offer. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that …

Fairness Through Guidance: Jury Instruction On Punitive Damages After Phillip Morris V. Williams, Neil Vidmar, Matthew W. Wolfe

Faculty Scholarship

Abstract not available

Eclecticism In Methods For Resolving Tort And Contract Conflict Of Laws: The United States And The European Union, William A. Reppy Jr.

Faculty Scholarship

This Article analyzes the three types of eclecticism found in choice of law The first type, second-look eclecticism, is employed by courts when an initial choice-of-law method (territorialism, personal-law theory, or the better law approach) yields no conclusive result and so a second inquiry, based on a different choice-of-law method is undertaken. The second type, called depecage eclecticism, occurs when courts use one choice-of-law theory to resolve most of the issues in an area of law, but a different theory for particular issues arising out of the same area of law. The final type, big-mix eclecticism, finds expression in the …

Asbestos Lessons: The Consequences Of Asbestos Litigation, Paul D. Carrington

Faculty Scholarship

Abstract not available

Federal Suits And General Laws: A Comment On Judge Fletcher's Reading Of Sosa V. Alvarez-Marchain, Ernest A. Young

Faculty Scholarship

No abstract provided.

Corrective Justice And Liability For Global Warming, Matthew D. Adler

Faculty Scholarship

No abstract provided.

The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie

Faculty Scholarship

No abstract provided.

A Proposed Settlement Rule For Mass Torts, Francis Mcgovern

Faculty Scholarship

Abstract not available

The Evolution Of Asbestos Bankruptcy Trust Distribution Plans, Francis Mcgovern

Faculty Scholarship

The evolution of asbestos litigation from the early 1970s to the present has become the source of much analysis. One commentator divides this history into several phases: the heroic phase, bureaucratic floundering, adaptation and maturity, search for global settlement, expansion of the number of cases, and legislative reform in a new era. A neglected aspect of the history of asbestos litigation has been the evolution of asbestos bankruptcy trust distribution plans. Since 1982 there have been more than 70 corporations which have filed bankruptcy proceedings because of their exposure to asbestos liability. As these corporations emerge from bankruptcy, their plans …

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

Brief Amici Curiae In Support Of Respondent, Phillip Morris, Usa, Neil Vidmar

Faculty Scholarship

Brief of Neil Vidmar, et al. Amici Curiae in support of Respondent, Phillip Morris, USA v. Williams, No. 15-1256 (U.S. Supreme Court, September 15, 2006) In Williams v. Philip Morris (1999) an Oregon jury awarded the plaintiff $800,000 in compensatory damages and $79.5 million in punitive damages, a verdict upheld by the Oregon Supreme Court, but appealed to the U.S. Supreme Court (oral argument set for Oct 31, 2006). Critics of punitive damages argue that (a) juries are incompetent, irrational or biased in awarding punitive damages and (b) judges and appellate courts fail to police excessive verdicts. This amicus brief …

A Model Mass Tort: The Ppa Experience, Francis Mcgovern, Barbara J. Rothstein, Sara Jael Dion

Faculty Scholarship

Abstract not available

A Model State Mass Tort Settlement Statute, Francis Mcgovern

Faculty Scholarship

Abstract not available

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

Faculty Scholarship

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Using Liability Rules To Stimulate Local Innovation In Developing Countries: Application To Traditional Knowledge, Jerome H. Reichman, Tracey Lewis

Faculty Scholarship

When economists speak of an underlying legal structure that imposes an "absolute permission" requirement on access to, and use of, knowledge goods protected by intellectual property rights (IPRs), they typically have in mind the domestic patent and copyright laws. Under these and related intellectual property regimes, one cannot normally make use of a protected invention or creative work of authorship for specified purposes and for limited periods of time without prior authorization of the rights holder, typically in the form of a license.

When economists speak of liability rules, in contrast, they envision an underlying legal structure that permits third …

Who Are Those Guys? An Empirical Examination Of Medical Malpractice Plaintiffs’ Attorneys, Thomas B. Metzloff, Catherine T. Harris, Ralph A. Peeples

Faculty Scholarship

Abstract not available

Civil Liability For Pure Economic Loss Under American Tort Law, Herbert Bernstein

Faculty Scholarship

No abstract provided.

Reforming Legal Ethics In A Regulated Environment: An Introductory Overview, Lawrence G. Baxter

Faculty Scholarship

Abstract not available

Understanding The Malpractice Wars, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

The Aftermath Of Injury: Cultural Factors In Compensation Seeking In Canada And The United States, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart

Faculty Scholarship

Injury is common in all societies. Americans are perceived as quick to respond to injury by turning to the legal system. This article compares compensation seeking by Americans and Canadians, examining the degree to which cultural factors shape the response of injured parties in the two countries and the extent to which resources and experiences influence individual action. Drawing on two large-scale telephone surveys, one conducted in five federal judicial districts around the United States and one conducted in the Canadian province of Ontario, the article looks at the factors that influence claiming and seeking legal assistance. The overall patterns …

The Perils Of Writing An Intellectual History Of Torts (Review Essay), George C. Christie

Faculty Scholarship

Reviewing, G. Edward White, Tort Law in America: An Intellectual History (1980)