Law Commons^™

Substantially Prevailed Damages: Fee Shifting In West Virginia Insurance Law, Richard L. Costella

West Virginia Law Review

No abstract provided.

Smoke And Mirrors: Florida's Tobacco-Related Medicaid Costs May Turn Out To Be A Mirage, Christopher May

Vanderbilt Law Review

Since the 1950s, anti-tobacco forces and the United States government have widely publicized the harm that the consumption of cigarettes can cause to humans. Smoking causes diseases of the oral cavity, cardio-pulmonary system, larynx, and bladder. In addition, the use of tobacco may also be related to sterility, ulcers, cancers of several internal organs, and even blindness. The severity of the consequences increases with the amount of consumption.

Experts estimate that 400,000 Americans die each year from smokings almost one out of every five deaths. In addition, the Surgeon General reports that as many as 2,400 deaths occur annually because …

Rocky Boy's Indian Reservation Compact, Mt, Chippewa-Cree Tribe

Native American Water Rights Settlement Project

Settlement - State Legislation: There is no stand alone settlement agreement: Water Rights Compact - MT, Chippewa-Cree Tribe of Rocky Boy's Reservation & US of 1997 (MCA 85-20-601) This Compact arose out of a MT state court water rights adjudication. It serves both as settlement agreement and state legislation. The Compact sets forth the Tribe’s rights and involve Stoneman Reservoir, East Fork Reservoir, Gravel Coulee, Lower Big Sandy Creek, Ancestral Missouri River Channel Aquifer, Box Elder Creek, Beaver Creek, Camp Creek, Duck Creek, Gorman Creek, Lake Elwell, Bonneau Reservoir, Brown’s Reservoir, and new impoundments. It identifies rights in groundwater and …

Mass Tort Litigation: Congress's Silent, But Deadly, Reform Effort, Mary J. Davis

Law Faculty Scholarly Articles

This article explores the ways in which The Common Sense Product Liability and Legal

Reform Act (“Act”) treats mass tort litigation issues. The Act does so both directly and indirectly. The direct methods of reform are mostly industry-specific and, thus, almost inconsequential in contrast to the indirect treatment. The indirect, almost clandestine, methods of reform are the most insidious and provide the most cause for concern as Congress once again attempts to "reform" products liability by reintroducing the Act in 1997. Given the President's early indication that a reform measure could meet with his approval, but that this one in …

An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Chris Sagers

Law Faculty Articles and Essays

This Note contends that consumers should have a private damages action under section 10. Part I discusses the method federal courts currently employ to determine whether a private cause of action should be recognized under a given federal statute. Part II applies this standard to section 10, and it argues that, although the federal courts currently exhibit a fairly restrictive attitude toward implication of remedies, an action should be implied under section 10 because the Real Estate Settlement Procedures Act of 1974 (RESPA) was enacted at a time when Congress relied on a more permissive judicial implication doctrine. Finally, Part …

Gasperini In Line With Erie: New York Law Determines Excessiveness Of Verdict In Diversity Cases, Edie C. Grinblat

Touro Law Review

No abstract provided.

"Countering Stereotypes." Review Of Medical Malpractice And The American Jury: Confronting The Myths About Jury Incompetence, Deep Pockets, And Outrageous Damage Awards, By N. Vidmar, Samuel R. Gross

Reviews

The story of The Medical Malpractice Trial has a place in popular American legal culture, somewhere on the shelf with Killers Who Got Off on Technicalities. The plot is simple and tragic. The protagonist is the Doctor, a good man with a flaw: He tries too hard. In the process, he makes an innocent mistake or believes he can prevent the unpreventable. In any event, he fails and the Patient dies or is permanently injured. For this unintentional error the Doctor is crucified, by the vengeful anger of the Patient or her survivors, the avarice of the plaintiffs' lawyer, the …

Anderson V. St. Francis-St. George Hospital: Wrongful Living From An American And Jewish Legal Perspective , Daniel Pollack, Chaim Steinmetz, Vicki Lens

Cleveland State Law Review

As advances in medical technology have kept people alive longer, the right to refuse life-sustaining treatment has taken on an even more crucial and urgent significance to dying patients and their families. While modern medicine may have learned to save lives, the lives it has saved are often severely diminished and filled with pain and suffering. Although the right to refuse life saving medical treatment is firmly embedded in our nation's laws, what to do when this right is ignored has not been firmly settled. The Anderson court answered this question by "splitting the difference." It affirmed Winter's right to …

Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White

Articles

The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.

Tis Better To Give Than To Receive: Charitable Donations Of Medical Malpractice Punitive Damages, Nicholas M. Miller

Journal of Law and Health

The purpose of this Note is not to answer the question of how excessive medical malpractice and punitive damage awards are. Many highly respected scholars on different sides of the issue have spent large portions of their careers trying to resolve that issue without finding a common ground. This author does not boldly claim to provide an answer in this limited forum. This Note does, however, address a possible source of public frustration with the state of medical malpractice and punitive damages: the lack of a principled basis for the awards that juries give to the victims. The perception among …

Chance V. Bp Chemical, Inc.: Changing Ohio's Perception Of Stigma Damages , Heidi B. Eisman

Cleveland State Law Review

An increased public awareness of environmental hazards has filled the courts with plaintiffs seeking damages for the potential harm a contaminant may cause. Typically, the principle of damages is a simple one, requiring only that some type of harm or injury has occurred. When no such injury has occurred, plaintiffs still pursue claims under the theory of “stigma damages.” However, the majority of courts have held that stigma damages alone cannot be recovered, and instead, actual physical impact is required before a court will award damages. Ohio courts had previously reached conflicting conclusions on the issue of stigma damages. Recently …

An Insurance-Based Compensation System For Product-Related Injuries, Richard C. Ausness

Law Faculty Scholarly Articles

In recent years, an increasing number of commentators have begun to express doubts about the effectiveness of the tort system. According to these critics, tort law does not deter accidents, nor does it spread accident costs efficiently. Worst of all, the tort system is extremely expensive to operate. Some of this criticism has spilled over into the products liability area. Products liability law has been condemned as expensive, ineffective, and regressive; in addition, it has been blamed for higher product prices, foreign competition, problems within the liability insurance industry, corporate bankruptcies, lack of product development, and the removal of useful …

The Cathedral' At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Articles

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman

Articles

It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under …

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.

Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud

Articles

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …