Law Commons^™

Using Tort Law To Secure Patient Dignity, Robin Fretwell Wilson

Faculty Scholarship

The practice of using anesthetized patients to teach pelvic exams on female patients in university hospitals has been well documented for years. A 1992 study showed that 37 percent of U.S. and Canadian medical schools allowed students to use anesthetized women without their consent to learn how to perform pelvic exams. Anecdotal accounts in the U.S. confirm that men are not immune from such indignities. Although patients have been unable, thus, far to enforce their own interests and protect their dignity, the tort system may yet succeed in securing the right of patients to decide who touches their bodies and …

Government Corruption And The Right Of Access To Courts, Una A. Kim

Michigan Law Review

This Note addresses the question left unanswered in Harbury: whether these denial of access-to-courts cases, which Justice Souter termed "backward-looking" access claims, are valid exercises of a constitutional right. Backward-looking access claims such as Harbury's differ from traditional denial of access-to-courts claims in that their aim is not to remove impediments to bringing causes of action in the future. Rather, backward-looking access claims allege that a suit that could have been filed in the past was not brought or was not litigated effectively, because access to the courts was at that time denied or obstructed by government officials. …

Torts, Deron R. Hicks

Mercer Law Review

In Music v. Steamco, Inc., the Georgia Court of Appeals affirmed the trial court's grant of summary judgment in favor of a restaurant in a slip and fall action. The action was filed by a patron of the restaurant who suffered injuries when she fell down a set of stairs while exiting the restaurant. Plaintiff, after having lunch with her friends at defendant's restaurant, prepared to leave the restaurant by way of the same stairs she used to enter the restaurant. As she stood at the top of the stairs, plaintiff noticed water on the steps; however, the steps …

Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Doing Good, Doing Well, Howard M. Erichson

Vanderbilt Law Review

On the fiftieth anniversary of Brown v. Board of Education,' it is fitting that we should take account not only of what has become of school desegregation but also of the heroic public interest lawyer figure embodied by Thurgood Marshall. For his role as "the chief litigator for the civil rights movement," Marshall is widely regarded as a preeminent role model for public interest lawyers. Descriptions of Marshall's career as a public interest advocate emphasize not only his ability to "use the legal system as a tool for social change," but also his personal sacrifice as a lawyer who persevered …

Identifying State Actors In Constitutional Litigation: Reviving The Role Of Substantive Context, Michael L. Wells

Scholarly Works

While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted "under color of state law" in violation of the plaintiffs' rights. They must establish that the defendants are nonetheless "state actors" in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state …

Soft Negligence And Cause In Fact: A Comment On Ganuza And Gomez, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer’s care reduces the magnitude of the accidental harm but not when the injurer’s care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the …

Summary Of Atkinson V. Mgm Grand Hotel, Inc., 120 Nev. Ad. Op. 71, Amanda Yen

Nevada Supreme Court Summaries

No abstract provided.

The Enterprise Of Liability, Anita Bernstein

Faculty Scholarship

No abstract provided.

Scienter, Causation, And Harm In Freedom Of Expression Analysis: The Right Hand Side Of The Constitutional Calculus, Wilson Huhn

William & Mary Bill of Rights Journal

No abstract provided.

Fear-Mongering Torts And The Exaggerated Death Of Diving, Carl Bogus

Law Faculty Scholarship

No abstract provided.

The Effects Of Malpractice Tort Reform On Defensive Medicine, Katherine D. Hennesy, Heather M. O'Neill

Business and Economics Faculty Publications

Positive defensive medicine occurs when physicians order additional tests or procedures primarily to avoid malpractice liability. This paper shows the degree of defensive medicine occurring across states is related to the malpractice environment in the states. As the environment changes due to malpractice tort reform, defensive medicine practices also change. This paper shows the existence of positive defensive medicine and how it adds to total health care expenditures for head trauma victims in 23 states in 2000. Moreover, given different malpractice environments across states, we witness variations in defensive medicine practices leading to differences in health care expenditures.

Proving Negligence In Products Liability Litigation, David G. Owen

Faculty Publications

No abstract provided.

The Role Of Opt-Outs And Objectors In Class Action Litigation: Theoretical And Empirical Issues, Theodore Eisenberg, Geoffrey Miller

Vanderbilt Law Review

We study 236 cases in which we could ascertain quantitative in- formation about the number of objectors, 159 cases with quantitative information about the number of opt-outs, 205 cases with both the size of the class and the number of objectors, and 143 cases with both the size of the class and the number of opt-outs. Opt-outs from class participation and objections to class action resolution are rare: on average, less than 1 percent of class members opt-out, and about 1 percent of class members object to class-wide settlements. Opt-out-rates and objectorrates can be partly explained by observable factors in …

The Muddled Duty To Disclose Under Rule 10b-5, Donald C. Langevoort, G. Mitu Gulati

Vanderbilt Law Review

Because the federal securities laws are, at heart, about disclosure, the question of whether and when there is a duty to disclose is often the central question in any given case. Certainly, the Securities & Exchange Commission (SEC) has broad powers to compel disclosures by issuers and certain others and has crafted a mandatory disclosure regime that creates many explicit duties. For a variety of reasons, however, this explicit regime falls short of a comprehensive answer to the duty question. For some sixty years now, the hardest duty questions have been addressed under the rubric of fraud, mainly under Rule …

The Inevitability Of Aggregate Settlement: An Institutional Account Of American Tort Law, Samuel Issacharoff, John F. Witt

Vanderbilt Law Review

For the past decade or so, important aspects of American tort law have sought to reaffirm tort's ostensible commitment to individualized justice. In the courts, "the elephantine mass of asbestos cases"' has produced a reaffirmation of what Justice Souter in Ortiz v. Fibreboard Corporation called the "day-in-court ideal": "our deep- rooted historic tradition that everyone should have his own day in court." The academy, in turn, appears to be in the midst of a sustained revival of the closely related idea that tort law consists in the reciprocal relationship between plaintiff and defendant, in which the bipolarity of the dispute …

Public Nuisance Claims Against Gun Sellers: New Insights And Challenges, Jean Macchiaroli Eggen, John G. Culhane

University of Michigan Journal of Law Reform

Gun violence continues unabated. Regulation of these deadly instruments is woefully inadequate, and legislatures are compounding the problem by barring or restricting access to the courts for the death and injuries that guns cause. In short, Congress and state legislators have repeatedly acquiesced to the demands of the gun lobby.

During the past several years, cities have struck back by filing public nuisance claims against those gun sellers whose practices pose a risk to the public's health and safety. After a slow start, public nuisance claims have recently gained traction in state appellate courts, which are increasingly coming to realize …

A Principled Solution For Negligent Infliction Of Emotional Distress Claims, Robert J. Rhee

UF Law Faculty Publications

This article examines negligent infliction of emotional distress, one of the most controversial and least uniform fields of tort law. A review of the judicial and scholarly literature has shown that traditional tort analysis fails. In its stead, the common law has not found an alternative theory of liability that balances the competing interests. Rather, the approach has been to create rules of law based on probabilistic templates. Its dual purpose is to preclude individualized analysis and to limit aggregate liability. This article rejects the current doctrines as inherently arbitrary and proposes a complete overhaul of the law. To find …

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

Muss Es Sein? Not Necessarily, Says Tort Law, Anita Bernstein

Faculty Scholarship

No abstract provided.

Does Plaintiff Exclusion Have A Role To Play In Twenty-First Century Negligence Litigation?, Giuseppe A. Ippolito

Buffalo Public Interest Law Journal

No abstract provided.

Childhood Vaccinations And Autism: Does The National Childhood Vaccine Injury Act Leave Parents Of Children With Autism Out In The Cold With Nowhere To Go?, Katherine Marie Bulfer

Campbell Law Review

No abstract provided.

This Land Is Your Land (Our Right To The Environment), Victor B. Flatt

West Virginia Law Review

No abstract provided.

Causation And Attenuation In The Slavery Reparations Debate, Kaimipono D. Wenger

ExpressO

Recent discussions of reparations have noted the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery.

This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and …

The Dangerous Allure Of The Issue Class Action, Laura J. Hines

Indiana Law Journal

No abstract provided.

Secret Police And The Mysterious Case Of The Missing Tort Claims, Marc L. Miller, Ronald F. Wright

Buffalo Law Review

No abstract provided.

Between 'Merit Inquiry' And 'Rigorous Analysis': Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth Chamblee Burch

Scholarly Works

In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions.

Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during …

The Puzzle Of Comment J, David G. Owen

Faculty Publications

No abstract provided.

Solving The Punitive Damage Mismatch, Ari Behar

ExpressO

There are several reasons underlying the system of punitive damages. Application of these reasons to cases yields differing results. The reasons fall into two categories: those that support awarding additional damages to the plaintiff and those that support extracting more damages from the defendant. When the reasons in favor of extraction exceed those in favor of award, the award should be split between the plaintiff and a fund. This fund should be used to supplement awards when the reasons favoring award exceed those favoring extraction.

Summary Of Olson V. Aztech Plastering Co., 120 Nev. Adv. Op. 28, Angela Morrison

Nevada Supreme Court Summaries

This case was an appeal from an order denying a new trial on a construction defects case brought under Chapter 40 of Nevada Revised Statutes. The district court held that under Calloway v. City of Reno,2 a plaintiff cannot bring a negligence action for economic loss arising from a construction defects claim.