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Full-Text Articles in Law
The Welding Fume Case And The Preemptive Effect Of Osha’S Hazcom Standard On Common Law Failure-To-Warn Claims, Richard C. Ausness
The Welding Fume Case And The Preemptive Effect Of Osha’S Hazcom Standard On Common Law Failure-To-Warn Claims, Richard C. Ausness
Law Faculty Scholarly Articles
The Occupational Health and Safety Act (the OSH Act) affects more than ninety million workers in the United States. The OSH Act is administered by the Occupational Health and Safety Administration (OSHA), which promulgates health and safety standards for the workplace. Although OSHA standards do not regulate product manufacturers directly, they may affect liability when manufacturers are sued by workers who are injured by allegedly defective products provided by their employers. With increasing frequency, manufacturers are contending that the OSH Act or OSHA standards preempt these claims. In particular, manufacturers argue that the Hazard Communication Standard (HazCom Standard) should preempt …
“After You, My Dear Alphonse!”: Should The Courts Defer To The Fda’S New Interpretation Of § 360k(A) Of The Medical Device Amendments?, Richard C. Ausness
“After You, My Dear Alphonse!”: Should The Courts Defer To The Fda’S New Interpretation Of § 360k(A) Of The Medical Device Amendments?, Richard C. Ausness
Law Faculty Scholarly Articles
Under the provisions of the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act certain medical devices are subject to premarket approval of the Food and Drug Administration (FDA). Section 360k(a) of the MDA provides that states may not establish “any requirement” which relates to safety or effectiveness of a medical device and "which is different from, or in addition to" any requirement imposed by the FDA. Until recently, the FDA maintained that § 360k(a) did not preempt most common law tort claims; however, in recent amici briefs, the FDA has aggressively asserted that most, if not all, …
Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben
Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben
Scholarly Works
The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.
Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …
Do Ask And Do Tell: Rethinking The Lawyer’S Duty To Warn In Domestic Violence Cases, Margaret B. Drew, Sarah Buel
Do Ask And Do Tell: Rethinking The Lawyer’S Duty To Warn In Domestic Violence Cases, Margaret B. Drew, Sarah Buel
Faculty Publications
Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers’ lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from …
Insufficient Causes, David A. Fischer
Insufficient Causes, David A. Fischer
Faculty Publications
This article analyzes a difficult causation question. If a force is not independently sufficient to bring about an injury, under what circumstances should a court find the force to be a cause of the injury? The question has practical importance. It frequently arises in litigation involving toxic torts and products liability failure to warn. The article includes a critique of the NESS test of causation as it pertains to this issue. This article explores this weakness of the NESS test in the context of insufficient causes, and offers important new insights with respect to the limitations of the NESS test. …
A Restatement (Third) Of Intentional Torts?, Kenneth Simons
A Restatement (Third) Of Intentional Torts?, Kenneth Simons
Faculty Scholarship
Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent. …
Torts And Choice Of Law: Searching For Principles, Keith N. Hylton
Torts And Choice Of Law: Searching For Principles, Keith N. Hylton
Faculty Scholarship
If a tortious act (e.g., negligently firing a rifle) occurs in state X and the harm (e.g., killing a bystander) occurs in state Y, which state's law should apply? This is a simple example of the choice of law problem in torts. The problem arises between states or provinces with different laws within one nation and between different nations. In this article I discuss this problem largely in terms of incentive effects and also consider where this topic might be addressed in a torts course.
Products Liability In The Twenty-First Century: A Review Of Owen’S Products Liability Law, Richard C. Ausness
Products Liability In The Twenty-First Century: A Review Of Owen’S Products Liability Law, Richard C. Ausness
Law Faculty Scholarly Articles
Professor Richard C. Ausness reviews Products Liability Law, a treatise by David Owen.