Law Commons^™

Principled Adjudication: Tort Law And Beyond, Richard W. Wright

All Faculty Scholarship

The article briefly discusses the impossibility of a strict formalist or positivist approach to legal adjudication and the necessity and plausibility of a principled approach, according to which it is necessary to resort, explicitly or implicitly, to the principles underlying the positive expressions or sources of law to identify, interpret and apply the law, in easy as well as hard cases. The legitimacy of the principled approach crucially depends on resort to the community's moral principles as embedded in the existing law -- those moral principles which best explain as much as possible of the existing law -- rather than …

Torts, Deron R. Hicks, Mitchell M. Mckinney

Mercer Law Review

• Premises Liability
• Damages
• Products Liability
• Defamation
• Dog Bite

Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.

All Faculty Scholarship

No abstract provided.

How Many People Does It Take To Save A Drowning Baby?: A Good Samaritan Statute In Washington State, Sungeeta Jain

Washington Law Review

For the past three years, the Washington legislature has considered a Good Samaritan bill, nicknamed the "Joey Levick Bill," that would impose a duty to summon assistance for those known to be substantially injured. This Comment argues that the bill is minimally intrusive and should be acceptable to autonomous individuals, because it requires a bystander merely to notify the appropriate authorities is if the bystander sees someone who is substantially injured. The bill also addresses the concerns about sinister abuse of the law by criminals feigning injury, by not requiring an individual to attempt a physical rescue. In addition, the …

Tort Law—Tort Immunity For Non-Profits—Is The Charitable Immunity Defense Becoming An Offense For Arkansas Hospitals? George V. Jefferson Hospital Ass'n, 337 Ark. 206, 987 S.W.2d 710 (1999)., Christa S. Clark

University of Arkansas at Little Rock Law Review

No abstract provided.

Dr. "Zorro" Leaves His Mark, Amy Nyitrai

Buffalo Women's Law Journal

No abstract provided.

Civil Litigation Against Hate Groups Hitting The Wallets Of The Nation's Hate-Mongers, Damon Henderson Taylor

Buffalo Public Interest Law Journal

No abstract provided.

A Model For Enhanced Risk Recovery In Tort, Andrew R. Klein

Washington and Lee Law Review

No abstract provided.

Accountable Managed Care: Should We Be Careful What We Wish For?, David A. Hyman

University of Michigan Journal of Law Reform

Managed care is exceedingly unpopular of late. Many people believe that the problem is managed care organizations (MCOs) are unaccountable. Indeed, for many people, the creation of tort-based accountability for MCOs is the touchstone for assessing legislative "reform." The case for tort-based accountability is actually quite complex, and the merits of tort-based accountability cannot be resolved with sound bites and bad anecdotes. Tort-based accountability has both costs and benefits, and little attention has been paid to the extent to which alternatives to tort-based accountability are found in existing institutional arrangements.

This Article systematically considers the extent to which alternatives to …

Establishing New Legal Doctrine In Managed Care: A Model Of Judicial Response To Industrial Change, Peter D. Jacobson, Scott D. Pomfret

University of Michigan Journal of Law Reform

Courts are struggling with how to develop legal doctrine in challenges to the new managed care environment. In this Article, we examine how courts have responded in the past to new industries or radical transformations of existing industries. We analyze two historical antecedents, the emergence of railroads in the nineteenth century and mass production in the twentieth century, to explore how courts might react to the current transformation of the health care industry.

In doing so, we offer a model of how courts confront issues of developing legal doctrine, especially regarding liability, associated with nascent or dramatically transformed industries. Our …

Playing Doctor: Corporate Medical Practice And Medical Malpractice, E. Haavi Morreim

University of Michigan Journal of Law Reform

Although health plans once existed mainly to ensure that patients could pay for care, in recent years managed care organizations (MCOs) have attempted to limit expenditures by exercising significant influence over the kinds and levels of care provided. Some commentators argue that such influence constitutes the practice of medicine, and should subject MCOs to the same medical malpractice torts traditionally brought against physicians. Others hold that MCOs engage only in contract interpretation, and do not literally practice medicine.

This Article begins by arguing that traditional common law doctrines governing corporate practice of medicine do not precisely apply to the current …

Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer

Faculty Publications

Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property. Consider the following example: A wrongdoer shoots and instantly kills a person in the path of an avalanche that would have killed the person a few seconds later. The person's survivors bring a wrongful death action against the shooter, seeking compensation for the loss of support they would have received from the decedent if she had lived. Should the court require the shooter to pay for loss of support beyond the time that the …

Sex, Drugs, & The Restatement (Third) Of Torts, Section 6(C): Why Comment E Is The Answer To The Woman Question , Dolly M. Trompeter

American University Law Review

No abstract provided.

The Toyota Principle, Alex Kozinski

Washington and Lee Law Review

No abstract provided.

On Recovery In Tort For Pure Economic Loss, Eileen Silverstein

University of Michigan Journal of Law Reform

Pure economic loss is not considered a recoverable harm in tort law. Professor Silverstein asks, "Why not?"

Rights And Wrongs, John C.P. Goldberg

Michigan Law Review

If one were to ask an American lawyer or legal scholar for a definition of liberalism, her explanation would likely include mention of constitutional provisions such as the First and Fourth Amendments. This is because liberalism is today understood primarily as a theory of what government officials may not do to citizens. Its most immediate expression in law is thus taken to be those parts of the Bill of Rights that set limits on state action. This tendency to conceive of liberalism exclusively as a theory of rights against government is a twentieth century phenomenon. To be sure, liberalism has …

Information Liability: The Possible Chilling Effect Of Tort Claims Against Producers Of Geographic Information Systems Data, Jennifer L. Phillips

Florida State University Law Review

No abstract provided.

Why Constitutional Torts Deserve A Book Of Their Own, Michael Wells, Thomas A. Eaton, Sheldon H. Nahmod

Scholarly Works

Over thirty years ago, Marshall Shapo coined the term "constitutional tort" to denote a suit brought against an official, charging a constitutional violation and seeking damages. In the years since Shapo's pathbreaking article, the number of such suits has grown exponentially. The suits have generated a host of new substantive and remedial issues, yet conventional casebooks on constitutional law and federal courts give little attention to the area. That Professor Shapiro had four books to include in his review of "Civil Rights" casebooks in the Seattle University Law Review is some indication of a demand for teaching materials currently unmet …

Regulating In Foresight Versus Judging Liability In Hindsight: The Case Of Tobacco, Jeffrey J. Rachlinski

Cornell Law Faculty Publications

Potentially dangerous products, such as cigarettes, can be regulated through ex post liability or ex ante regulation. Both systems should reach the same result. In practice, however, cognitive biases that influence the liability system can produce incentives to take an excess of precautions. In particular, because people tend to see past events as more predictable than they really were, judges and juries will tend to find defendants who took reasonable care negligent or even reckless. As a consequence of these biases, a liability system can be more expensive than a regulatory system, both to potential defendants and to society. Cognitive …

Product Design Liability In Orgeon And The New Restatement, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Product Design Liability In Oregon And The New Restatement, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness

Law Faculty Scholarly Articles

In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned …

Tort Law—Tortious Interference With Contract: The Arkansas Supreme Court Clarifies Who Has The Burden And What They Have To Prove. Mason V. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998)., Odette Woods

University of Arkansas at Little Rock Law Review

No abstract provided.

The Bad News About Good Faith For Excess Um Carriers, Robert L. Tucker

Akron Law Faculty Publications

No abstract provided.

The Bad News About Good Faith For Excess Um Carriers, Robert L. Tucker

Robert L Tucker

No abstract provided.

Ogletree V. Navistar International Transportation Corp.: The Demise Of The "Open And Obvious Danger" Defense, Richard L. Sizemore

Mercer Law Review

After working its way through the appellate court system for almost a decade, the Supreme Court of Georgia made an important decision in Ogletree v. Navistar International Transportation Corp. by rejecting the "open and obvious" danger rule in products liability cases and the absolute defense it provided.

Robinson V. Kroger: A Leveling Of The Field Or Fatal Fall For Summary Judgment?, Morgan W. Shelton

Mercer Law Review

In Robinson v. Kroger, the Supreme Court of Georgia reaffirmed that an invitee can recover in a slip-and-fall action when (1) the owner/ occupier had actual or constructive knowledge of the hazard; and (2) plaintiff lacked knowledge of the hazard despite the exercise of ordinary care. However, in a drastic departure from existing case law, the court held that the evidentiary burden regarding plaintiff's knowledge of the hazard and exercise of reasonable care does not shift, for the purpose of summary judgment, until the defendant establishes negligence on the part of the plaintiff.

The Quality Of Mercy Is Not Strained: Interpreting The Notice Requirement Of The Federal Tort Claims Act, Ann Mcguire

Michigan Law Review

Under the Federal Tort Claims Act of 1946 {FfCA), the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." This limited waiver of sovereign immunity, subject to certain exceptions, grants federal district courts exclusive jurisdiction over civil tort actions against the United States for money damages. The Act requires a claimant suing the United States to file her claim first with the appropriate administrative agency. If the agency denies the claim, it mails a notice of final denial, and the claimant then has six months to …

What Europe, Japan And Other Countries Can Learn From The New American Restatement Of Products Liability, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

The New-Tort Centrifuge, Anita Bernstein

Faculty Scholarship

No abstract provided.