Law Commons^™

Duality In Contract And Tort, Tim Friehe, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort.

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

Articles

2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …

Concurrent Liability In Tort And Contract, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

This articleexamines the understanding of concurrent liability in tort and contract,through a detailed analysis of the interplay, intersection and independence of thelaw of torts and the law of contract. The central argument that will beadvanced is that the present understanding of the ‘incident rules’ inconcurrent liability in tort and contract, such as the applicable rules ofremoteness or limitation, is inconsistent with the rationale for concurrencelaid down in Henderson v MerrettSyndicates Ltd. Rather than analyse concurrence as a single situation, thatis, conceiving it as a contest between rules of tort or contract rules, we arguethat the better way forward is to …

Food For Thought: Genetically Modified Seeds As De Facto Standard Essential Patents, Benjamin M. Cole, Brent J. Horton, Ryan G. Vacca

Law Faculty Scholarship

For several years, courts have been improperly calculating damages in cases involving the unlicensed use of genetically-modified (GM) seed technology. In particular, when courts determine patent damages based on the hypothetical negotiation method, they err in exaggerating these damages to a point where no rational negotiator would agree. In response, we propose a limited affirmative defense of an implied license due to the patent’s status as a de facto standard essential patent. To be classified as a de facto standard essential patent, the farmer must prove three elements that reflect the peculiarities of GM seeds used in farming: (1) dominance, …

Attorney Referral, Negligence, And Vicarious Liability, Bruce Ching

Journal Articles

As a consequence of requests from clients or prospective clients, lawyers are often placed in a position of giving referrals, especially in situations of cross-specialty referrals (such as an estate planning attorney whose longtime client has become a party in a personal injury lawsuit) or cross-jurisdictional referrals (such as an attorney in Michigan who is contacted by a prospective client who must respond to a lawsuit that was filed in Ohio).

But if the lawyer who receives the referral commits malpractice in handling the case, can the lawyer who made the referral be held liable for the client's loss? This …

Common Law Disclosure Duties And The Sin Of Omission: Testing The Meta-Theories, Kimberly Krawiec, Kathryn Zeiler

Faculty Scholarship

Since ancient times, legal scholars have explored the vexing question of when and what a contracting party must disclose to her counterparty, even in the absence of explicit misleading statements. This fascination has culminated in a set of claims regarding which factors drive courts to impose disclosure duties on informed parties. Most of these claims are based on analysis of a small number of non-randomly selected cases and have not been tested systematically. This article represents the first attempt to systematically test a number of these claims using data coded from 466 case decisions spanning over a wide array of …

Replacing Strict Liability With A Contract-Based Products Liability Regime, Richard C. Ausness

Law Faculty Scholarly Articles

When strict products liability first appeared on the scene some thirty-five years ago, it was heralded as a boon to consumers whose claims to compensation had hitherto been frustrated by the law of sales. Warranty law, it was said, worked fairly well in purely "commercial" transactions, but tort law did a better job in cases where ordinary consumers suffered personal injuries or property damage from defective products. To be sure, defenders of warranty law pointed out that the newly-drafted Uniform Commercial Code (the "Code" or "U.C.C.") was much more consumer friendly than the old Uniform Sales Act. Nevertheless, the proponents …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in years 1998 and 1999.

Tort Liability For Asbestos Removal Costs, Richard C. Ausness

Law Faculty Scholarly Articles

During the past twenty years, Congress and the general public have become increasingly aware of the health hazards caused by exposure to toxic substances. Consequently, Congress has enacted statutes, such as CERCLA, requiring parties who are responsible for toxic waste to clean up the toxic waste sites and to reduce the level of toxic chemicals in the environment. Asbestos is one toxic substance that government has targeted in particular. The federal government and many states have enacted laws requiring asbestos-containing materials to be segregated or removed from schools and public buildings.

Even when government regulations do not mandate specific abatement …

Strict Liability For Chattel Leasing, Richard C. Ausness

Law Faculty Scholarly Articles

Leasing has become an increasingly popular substitute for outright purchases as a means of acquiring products for use. Few courts and commentators, however, have addressed the question of whether the principles of strict products liability which apply to sellers also apply to lessors. In this Article, Professor Ausness reviews the historical basis for imposing strict liability in tort on sellers and applies these rationales to five basic kinds of lease transactions. He concludes that strict liability should not apply when a product defect arises after the leased product is placed in the hands of the lessee (as contrasted with the …