Law Commons^™

Illinois Rejects Market Share Liability: A Policy Based Analysis Of Smith V. Eli Lilly & Co., Kurt M. Zitzer, Marc D. Ginsberg

Marc D. Ginsberg

No abstract provided.

Genetically Modified Plants Used For Food, Risk Assessment And Uncertainty Principles: Does The Transition From Ignorance To Indeterminacy Trigger The Need For Post-Market Surveillance?, Katharine Van Tassel

Katharine Van Tassel

In the context of GM foods, a genetic modification changes the biochemical cross-talk between genes, creating genetic material that has never existed before in nature. This novel genetic material can create unintended health risks, as seen with the case of the GM peas that contained a novel and unexpected allergenic protein and primed test mice to react to other allergens.6 The bottom line is that the scientific acceptance of the existence of the networked gene establishes that the FDA’s presumption that GM plant food is bioequivalent to traditional plant food is no longer scientifically supportable and that a new system …

Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel

Katharine Van Tassel

This Article starts with a history of the growth of hospital peer review and then examines the merits of the rationales that motivated the passage of the Health Care Quality Improvement Act of 1986 ('HCQIA'), which catapulted peer review into the national system that exists today. The Article next explains how the peer review hearing process works and how HCQIA turns private hospitals into small, individual quasi-regulatory agencies. The Article goes on to critique the 'bad apples' approach taken by hospital peer review in light of the growing body of empirical research that supports a systems improvement approach to dealing …

The Introduction Of Biotech Foods To The Tort System: Creating A New Duty To Identify, Katharine Van Tassel

Katharine Van Tassel

This Article examines the question of whether an unsuspecting consumer who dies from an allergic or toxic reaction to an undisclosed biotech ingredient in food can recover damages through the tort system. The surprising answer is that recovery is very unlikely. This Article outlines why this is the case, then evaluates the merits of several potential solutions to this problem including the possible creation of a common law 'duty to identify' biotech ingredients in food.

This Article is arranged as follows. First, a brief primer on the nature of biotech foods is provided. For the reader unfamiliar with the regulatory …

Tort Law's Devaluation Of Stillbirth, Jill W. Lens

Jill Wieber Lens

The Laws Of Image, Samantha Barbas

Samantha Barbas

We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others. The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution …

Defective Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen

Jean M. Eggen

The Jewel In The Crown: Can India’S Strict Liability Doctrine Deepen Our Understanding Of Tort Law Theory?, Deepa Badrinarayana

Deepa Badrinarayana

L'Ontologia Dei Danni Non Patrimoniali, Pier Giuseppe Monateri

Pier Giuseppe Monateri

L'autore esamina la nuova decisione della Cassazione che, dandogli ragione, ristabilisce in termini coerenti la 'ontologia' dei danni non patrimoniali, chiarendo che il danno esistenziale ha natura propria e differente da quella del danno morale e del danno biologico

西方侵权法中的多数人侵权：一种比较法的视角 (Multiple Tortfeasors In Western Tort Law: A Comparative Outline), Mauro Bussani, Marta Infantino

Marta Infantino

The aim of the paper (in Chinese) is to explore the state-of-the-art of principles and rules on multiple tortfeasors liability in Western tort laws. The survey mainlyes focus on a set of Western jurisdictions from Western Europe and North America – mostly on England, France, Germany, Italy, and the United States.

Invalid Testimony: Disability And Voice In The Criminal Procedure (Co-Authored With Osnat Ein-Dor) (Hebrew), Sagit Mor

Sagit Mor

This Article discuses the sociolegal reality that people with developmental and mental disabilities experience in their interaction with the criminal justice system and the challenges that the criminal system faces when it comes to deal with a case which involves a disabled person. It maintains that the barriers that disabled people face in criminal proceedings do not exist only in pre-trial stages, but also during the trial itself, since courts, too, are impacted by exclusionary legal rules and by cognitive schemas that express negative stereotypes. In 2005 a new law was introduced in Israel: Investigation and Testimony Proceedings (Accommodations for …

Lapses Of Attention In Medical Malpractice And Road Accidents, Robert D. Cooter, Ariel Porat

Robert Cooter

A doctor who lapses and injures her patient, and a driver who lapses and causes an accident, are liable under negligence law for the harm done. But lapse is not necessarily negligence, since reasonable people lapse from time to time. We show that tort liability for “reasonable” lapses distorts doctors’, drivers’, and manufacturers’ incentives to take care. Furthermore, such liability provides potential injurers with incentives to substitute activities which are less prone to lapses with activities which are more prone to lapses, even if such substitution is inefficient. We propose several solutions to the inefficiencies that result from liability for …

Tort Law: The Languages Of Duty, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

The Tort Foundation Of Duty Of Care And Business Judgment, Robert J. Rhee

Robert Rhee

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

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 …

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, 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 the ocean liner sank, killing everyone aboard? Though this question has been recognized and addressed for almost a century, there is no consensus among …

Il Diritto Comparato Della Causalità Aquiliana, Marta Infantino

Marta Infantino

The article (in Italian) offers an overview of the ways in which rules on causation in tort law are conceived of, made and applied by courts and scholars in selected Western jurisdictions.

Introduction, Perspectives On Mass Tort Litigation Symposium, Christopher J. Robinette

Christopher J Robinette

Ideological Conflict, African American Reparations, Tort Causation And The Case For Social Welfare Transformation, James R. Hackney Jr.

James R. Hackney Jr.

In this article the author applies a torts causation framework in order to examine the case for African American reparations. The focus is on group claims as opposed to individual claims for reparations. The causation analysis is undertaken drawing an analogy to mass toxic torts. The author concludes that the best case for reparations is that they be made in the form of social welfare programs delivered by the federal government.

The Intellectual Origins Of American Strict Products Liability: A Case Study In American Pragmatic Instrumentalism, James R. Hackney Jr.

James R. Hackney Jr.

This article examines the intellectual origins of strict products liability in America. The author traces the intellectual roots of strict products liability to the constellation of ideas referred to in the article as “pragmatic instrumentalism” (pragmatism, institutional economics, and legal realism). Pragmatic instrumentalism played a significant role in changing the way tort law is viewed in America—transforming it from an individualist focus to being concerned with broader policy implications. This new intellectual perspective, combined with Progressive Era politics, led to the shift away from negligence to strict liability in products liability.

Il Nesso Causale Nella Responsabilità Extracontrattuale: Note Comparatistiche, Marta Infantino

Marta Infantino

The article provides a brief overview of the main theories and rules of causation in tort law in selected Western jurisdictions.

Equal Rights For Disabled People In Employment Law – A Critical Assessment (Hebrew), Sagit Mor

Sagit Mor

This article presents a pioneering research project, which seeks to explore whether and to what extent the Equal Rights for People with Disability Law, 1998, had an impact on courts' rulings on matters related to disability employment discrimination. In particular, it seeks to examine (1) whether a consistent and instructive legal doctrine has evolved, one that reflects the principles that guided the framers of the legislation, and (2) whether the legal discourse on disability has changed. The article presents the emerging theory of disability legal studies and its unique and original contribution to legal scholarship. Disability legal studies seeks to …

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Diane Hoffmann

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky

Peter Zablotsky

No abstract provided.

The Market In Unmatured Tort Claims: Twenty Years Later, Stephen G. Marks

Stephen G Marks

In 1989, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. And yet it remains unadopted in all jurisdictions. There is a reason for this. In this paper I reexamine the proposal as to its likely intended and unintended effects. This article argues that, for such a market to work, three modifications must be made. First, the tort awards must be based on optimal-deterrence-damages rather than full-compensation damages. (The paper provides an explanation of full-compensation damages, optimal-deterrence damages, and optimal-insurance damages.) Second, potential tortfeasors must not be allowed …

Mctorts: The Social And Legal Impact Of Mcdonald's Role In Tort Suits, Caroline Forell

Caroline A Forell

This Article looks at the impact of McDonald’s on public policy and tort law from historical and social psychology perspectives, following McDonald’s from its beginnings in the mid-1950’s through today. By examining McDonald’s Corp. v. Steel and Morris (McLibel), Liebeck v. McDonald’s Restaurants (Hot Coffee), and Pelman v. McDonald’s Corp. (Childhood Obesity), I demonstrate that certain tort cases involving McDonald’s have had particularly important social and legal consequences that I attribute to McDonald’s special influence over the human psyche, beginning in childhood. In explaining McDonald’s extraordinary power over the public imagination and how this affects lawsuits involving it, I rely …

Punishing For The Injury: Tort Law’S Influence On The Constitutional Limitations Of Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

The Draft Ali Product Liability Proposals: Progress Or Anachronism?, Oscar S. Gray

Oscar S. Gray

No abstract provided.

On Sugarman On Tort-Chopping, Oscar S. Gray

Oscar S. Gray

No abstract provided.