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Articles 1 - 30 of 55
Full-Text Articles in Law
Public Policy And The Insurability Of Cyber Risk, Asaf Lubin
Public Policy And The Insurability Of Cyber Risk, Asaf Lubin
Articles by Maurer Faculty
In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, …
Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar
Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar
Dickinson Law Review (2017-Present)
Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …
Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White
Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White
Touro Law Review
No abstract provided.
Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin
Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …
Private Law In The Gaps, Jeffrey A. Pojanowski
Private Law In The Gaps, Jeffrey A. Pojanowski
Jeffrey A. Pojanowski
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
Discrimination Law: The New Franken-Tort, Sandra F. Sperino
Discrimination Law: The New Franken-Tort, Sandra F. Sperino
Faculty Articles and Other Publications
This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.
Medical Malpractice - Statute Of Limitations - Foreign Objects - The Adoption Of The Discovery Rule - Legislative Or Judicial Prerogative? Melnyk V. Cleveland Clinic, Alan J. Sobol
Akron Law Review
The rationale of the Court was that Melnyk could be distinguished with the recent case of Wyler v. Tripi, which held that a cause of action for medical malpractice accrues at the latest when the physician-patient relationship terminates, and which also recognized the legislature's authority to act in this area, on the basis that Wyler was not a foreign object case. Therefore, the Court felt it need not disturb the Wyler holding and could nevertheless hold the failure to remove the foreign objects in Melnyk was negligence as a matter of law and that equity and public policy require …
Minors Under The Age Of Seven; Incapable Of Primary Negligence Or Intentional Torts; Conclusive Presumption; Deluca V. Bowden, Robert Austin Cross
Minors Under The Age Of Seven; Incapable Of Primary Negligence Or Intentional Torts; Conclusive Presumption; Deluca V. Bowden, Robert Austin Cross
Akron Law Review
The only question considered by the supreme court was "whether a child under the age of seven is liable for primary negligence or for an intentional tort." The court noted the general incapacity of a child of this age to act with reason and foresight, and further expressed its own reluctance to attach blame to a child "in any sense comparable to the blame attachable to an adult." For these reasons it held that such a child shall be conclusively presumed incapable of both primary negligence and intentional tort.
In so holding, Ohio joins a distinct minority of states which …
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
Dualism And Doctrine, Alex Stein, Dov Fox
Dualism And Doctrine, Alex Stein, Dov Fox
Alex Stein
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …
Catalogs, Alex Stein, Gideon Parchomovsky
Catalogs, Alex Stein, Gideon Parchomovsky
Alex Stein
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Donald J. Kochan
Catalogs, Gideon Parchomovsky, Alex Stein
Catalogs, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …
What Is An Accident?, Daniel B. Yeager
What Is An Accident?, Daniel B. Yeager
Daniel B. Yeager
Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”
Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of Responsibility …
Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin
Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin
Bailey H. Kuklin
No abstract provided.
Private Law In The Gaps, Jeffrey A. Pojanowski
Private Law In The Gaps, Jeffrey A. Pojanowski
Journal Articles
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet
World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet
Pepperdine Law Review
World Wide Volkswagen Corporation v. Woodson considers the problem of modifying in personam jurisdiction to comply with the changing nature of the American economy. Several lower courts had adjusted the "minimum contacts" test of International Shoe Co. v. Washington to allow for the differences in modern economic lifestyle, but a uniformity amongst the various approaches was lacking. Rather than synthesize a contemporary test for the assertion of in personam jurisdiction, the World- Wide Court chose to place state sovereignty above modern commercial realities and adhere to a more rigid application of the minimum contacts analysis. The author takes issue with …
Doomed Steamers And Merged Fires: The Problem Of Preempted Innocent Threats In Torts, Anthony M. Dillof
Doomed Steamers And Merged Fires: The Problem Of Preempted Innocent Threats In Torts, Anthony M. Dillof
Anthony M. Dillof
This article addresses a classic question of tort theory: When a court assesses damages in a negligence action, it is relevant that the defendant’s negligence prevented the plaintiff from suffering a harm? For example, imagine that defendant Taxi Driver negligently crashes his taxi thereby injuring plaintiff Passenger. Is it relevant that because of the accident, Passenger did not reach the ocean liner he had been planning to sail on and, as a result, his life was saved because, as it turns out, the ocean liner sank, killing everyone aboard? Though this question has been recognized and addressed for almost a …
Defenseless Self-Defense: An Essay On Goldberg And Zipursky's Civil Recourse Defended, Alan Calnan
Defenseless Self-Defense: An Essay On Goldberg And Zipursky's Civil Recourse Defended, Alan Calnan
Alan Calnan
In a recent symposium published by the Indiana Law Journal, Professors John C.P. Goldberg and Benjamin C. Zipursky offer a spirited defense of their theory of civil recourse, which sees the tort system exclusively as a means of empowering victims of wrongs. This essay assails that defense, finding it curiously defenseless in three related respects. First, civil recourse’s key tenets are particularly vulnerable to criticism because they are quietly reductive, inscrutably vague, and highly unstable. Second, even in its most coherent form, civil recourse theory literally lacks any meaningful explanation of the defensive rights at play within the tort system. …
Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower
Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower
Richard Cameron Gower
Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
The Property Platform In Anglo-American Law And The Primacy Of The Property Concept, Donald J. Kochan
Donald J. Kochan
This Article proposes that the property concept, when reduced to its basic principles, is a foundational element and a useful lens for evaluating and understanding the whole of Anglo-American private law even though the discrete disciplines—property, tort, and contract—have their own separate and distinct existence. In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned—including the right to exclude, ownership, dominion, authority, …
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
All Faculty Scholarship
In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin
The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin
San Diego Law Review
Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a …
University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal
University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal
Zena Denise Crenshaw-Logal
On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
All Faculty Scholarship
No abstract provided.
Rights-Based Theories Of Accident Law, Gregory J. Hall
Rights-Based Theories Of Accident Law, Gregory J. Hall
All Faculty Scholarship
This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?
In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this …
An Essay On Torts: States Of Argument, Marshall S. Shapo
An Essay On Torts: States Of Argument, Marshall S. Shapo
Faculty Working Papers
This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …
Foreseeability And Copyright Incentives, Shyamkrishna Balganesh
Foreseeability And Copyright Incentives, Shyamkrishna Balganesh
All Faculty Scholarship
Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …