Law Commons^™

The Overlapping Magisteria Of Law And Science: When Litigation And Science Collide, William G. Childs

ExpressO

The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.

This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.

In this Article, I explore these phenomena and the criticisms of …

When All Else Fails: Regulating Risky Products Through Tort Litigation, Wendy E. Wagner

ExpressO

It is the prevailing wisdom among both the legal academy and the general public that the regulatory system is better able to ensure the safety of risky products than the tort system. In this article I argue that this is not always the case. Contrary to sharp criticisms of “regulation by litigation” propounded by leading academics such as Richard Epstein, Richard Reich, and Peter Shuck, tort litigation is sometimes the only way to encourage product safety, at least in settings where manufacturers conceal key information needed to evaluate product safety. Without this litigation, we might still be using products that …

Sex Torts, D A. Pollard

ExpressO

America has a serious sexual problem. The sexual practices of a small percentage of Americans has created an unprecedented disease rate that is costing the American public about $20 billion per year. Lawsuits seeking damages for sexual disease transmission are on the rise, yet current sex tort law is mired with anti-heartbalm sentiment, is unpredictable, and is failing as a tool of deterrence, compensation, and education. This Article discusses the gravity of the sexual disease crisis, part of which is the public’s incredible ignorance about the rate of sexual disease, and tort law’s failure to do its part to help …

The Judgment-Proof Society, Stephen G. Gilles

ExpressO

This article presents the first article-length treatment of the legal rules that enable uninsured and underinsured individuals to escape tort liability by sheltering their income and assets from collection. These legal barriers to collecting tort judgments include limits on wage garnishment, homestead exemptions, retirement-plan exemptions, discharge in bankruptcy, spendthrift trusts, offshore asset protection trusts, and more. Of course, indigent persons would be judgment-proof even without these rules, because they have so few assets and so little income. Contrary to the myth of personal tort liability that is standard in torts scholarship and teaching, however, these legal rules enable huge numbers …

A Theory Of Government Damages Liability: Torts, Constitutional Torts, And Takings, Lawrence Rosenthal

ExpressO

Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As …

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Paths Of Western Law After Justinian, Stuart Madden

ExpressO

Abstract

This article relates the story of the paths of Roman law from the periods immediately before the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through the several centuries thereafter. This period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that now occupied and ruled the former Roman territories, and the recitation of such new law in the form of new law codes promulgated by three major Gothic groupings: the Lombards, the Burgundians and the Salacian Franks.

In the main, the …

Explanation, Human Nature, And Tort Theory, Jeffery L. Johnson

ExpressO

The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations …