Law Commons^™

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Lies Between Mommy And Daddy: The Case For Recognizing Spousal Emotional Distress Claims Based On Domestic Deceit That Interferes With Parent–Child Relationships, Linda L. Berger

Scholarly Works

This Article discusses whether courts should recognize spousal IIED causes of action based on intentional lies that interfere with the establishment or the continuation of parent-child relationships. The Article begins with an overview of the currents in family law and tort law that converge in domestic tort actions. Next, it reviews the current status of a particular domestic tort: spousal emotional distress. It then examines the evolution of emotional distress claims based on interference with parent-child relationships, moving from California's early and continuing rejection of these claims to the very recent recognition of these claims by other states. Finally, it …

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

The following essay is the pre-editing draft of the introduction to a paper delivered at a Mass Torts conference held at the University of Pennsylvania Law School in November 1999. Thc conference grew out of the work of the ad hoc Mass Torts Working Group that on February 15, 1999, delivered a Report to the Chief Justice of the United States and the judicial Conference of the United States. The Working Group, chaired by Third Circuit Judge Anthony J. Scirica, '65, included members drawn from several Judicial Conference committees, including the Advisory Committee on the Federal Rules of Civil Procedure, …

An Essay On Texas V. Lesage, Christina B. Whitman

Articles

When I was invited to participate in this symposium, I was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage. But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus …

Lawsuits Against The Gun Industry: A Comparative Institutional Analysis, Timothy D. Lytton

Faculty Publications By Year

I argue that the tort system can complement the efforts of either institutions such as markets, legislatures and administrative agencies to make public policy. Solving complex social problems typically requires the cooperation of several policymaking institutions, each with its own strengths and weaknesses. My examination of lawsuits against the gun industry reveals that the tort system can and should play an active policymaking role in reducing gun violence.

The Futures Problem, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Products Liability Restatement In The Courts: An Initial Assessment, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Three Arguments Against Mt. Healthy: Tort Theory, Constitutional Torts, And Freedom Of Speech, Michael L. Wells

Scholarly Works

Mt. Healthy City School District Board of Education v. Doyle is among the most important, and least discussed, cases in constitutional tort law. It stands for the abstract principle that the "but-for" rule of causation, which is the usual test in common-law torts, applies in constitutional torts as well. Doyle, a nontenured school teacher, quarreled with another teacher, with school employees, and with students. Two specific incidents deserve mention. First, on one occasion he "made an obscene gesture to two girls in connection with their failure to obey commands made in his capacity as cafeteria supervisor." Second, after the principal …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 1999 and 2000.

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model," while the second is a draft of settlement-class provisions for Federal Rule of Civil …

Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White

Articles

In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments' entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens' injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments' …

Introduction, Anthony J. Scirica

All Faculty Scholarship

No abstract provided.

Fashionable Genetic Explanations In The Courtroom: Litigating Personal Injuries Based On Genetic Risk, Jennifer Wriggins

Faculty Publications

New developments in molecular genetics hold much promise for society. Gene therapy research is underway with the aim of helping to fight, and perhaps even eliminate some diseases. DNA data can be used as evidence to help free innocent people and put guilty ones in jail. Agricultural biotechnology can make crops and pesticides more productive. And cloning may offer exciting potential. There is little doubt that further· developments in the areas of genetics and biotechnology will change our lives in unanticipated ways.

Despite the potential benefits to society, there exist valid and serious I concerns about the potential for misuse …

Without Fear Or Favor: Judge James Edwin Horton And The Trial Of The Scottsboro Boys, Douglas O. Linder

Faculty Works

No abstract provided.

The Futures Problem, Geoffrey C. Hazard Jr.

All Faculty Scholarship

Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem and Ortiz appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about …

Foreword: Causes And Limits Of Pessimism, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Biotechnology And The Legal Constitution Of The Self: Managing Identity In Science, The Market, And Society, Jonathan Kahn

Faculty Scholarship

This article considers how certain ideas underlying the tort of appropriation may enable use more effectively to deal with the problems presented by a case such Moore v. Regents of the University of California which dealt with property rights of Moore’s spleen cells. First, the author explores how the tort of appropriation of identity opens up new approaches to inform and perhaps supplement principles of property law as a guide to managing genetic information or other materials that seem intimately bound up with a particular human subject. Secondly, the author analyzes how the various opinions produced by the Supreme Court …

On Causation, Mari J. Matsuda

Georgetown Law Faculty Publications and Other Works

In this Essay, Professor Matsuda argues that the narrow dyadic focus of tort law perpetuates very real, and remediable, social harms. Using tort causation doctrine as her starting point, Professor Matsuda demonstrates how the tort system sacrifices human bodies to maintain the smooth flow of the economic system. Time after time, tragedies occur: school systems fail, first graders shoot each other, women live in constant fear of rape. Yet each tragedy is met with the same systematic response: those without resources, those least able to correct the harm, are considered the legal cause of the harm. The economic and corporate …

A Reexamination Of The Distinction Between "Loss-Allocating" And "Conduct-Regulating Rules", Wendy Collins Perdue

Georgetown Law Faculty Publications and Other Works

In this paper, I disagree with the premise that all tort rules can be meaningfully classified as either compensatory or deterrent. I argue that most tort rules are both and that "the compensation and deterrence goals ascribed to the tort system cannot be separated.” I then explore the impact on the Louisiana tort choice of law code of this alternative understanding of tort law. My analysis begins with the proposition that all tort rules are loss-allocating. A liability rule shifts the loss from the injured victim to the tortfeasor; conversely a rule of no liability means that the loss, no …

Prudence, Benevolence, And Negligence: Virtue Ethics And Tort Law, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Tort law assesses negligence according to the conduct of a reasonable person of ordinary prudence who acts with due care for the safety of others. This standard assigns three traits to the person whose conduct sets the bar for measuring negligence: reasonableness, ordinary prudence, and due care for the safety of others. Yet contemporary tort scholars have almost exclusively examined only one of these attributes, reasonableness, and have wholly neglected to carefully examine the other elements key to the negligence standard: prudence and due care for the safety of others. It is mistaken to reduce negligence to reasonableness or to …

Class Action Accountability: Reconciling Exit, Voice, And Loyalty In Representative Litigation, John C. Coffee Jr.

Faculty Scholarship

In two recent and highly technical decisions – Amchem Products v. Windsor and Ortiz v. Fibreboard Corp. – the Supreme Court has recognized that a serious potential for collusion exists in class actions and has outlined a concept of "class cohesion" as the rationale that legitimizes representative litigation. Although agreeing that a legitimacy principle is needed, Professor Coffee doubts that "class cohesion" can bear that weight, either as a normative theory of representation or as an economic solution for the agency cost and collective action problems that arise in representative litigation. He warns that an expansive interpretation of "class cohesion" …