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Articles 1 - 26 of 26
Full-Text Articles in Law
You As A Brand: A Legal History, Lyrissa Lidsky
You As A Brand: A Legal History, Lyrissa Lidsky
Faculty Publications
Dr. Samantha Barbas’ book, Laws of Image: Privacy and Publicity in America, makes an original, important, and engaging contribution to the history of the privacy law in the United States. In the process, the book illuminates how we became a culture obsessed with image management and how the law developed and continues to evolve to protect our rights to become our own personal brands.
Insufficient Causes, David A. Fischer
Insufficient Causes, David A. Fischer
Faculty Publications
This article analyzes a difficult causation question. If a force is not independently sufficient to bring about an injury, under what circumstances should a court find the force to be a cause of the injury? The question has practical importance. It frequently arises in litigation involving toxic torts and products liability failure to warn. The article includes a critique of the NESS test of causation as it pertains to this issue. This article explores this weakness of the NESS test in the context of insufficient causes, and offers important new insights with respect to the limitations of the NESS test. …
Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer
Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer
Faculty Publications
The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or …
Tort Recovery For Loss Of A Chance, David A. Fischer
Tort Recovery For Loss Of A Chance, David A. Fischer
Faculty Publications
Tort lawyers in the United States often think of “loss of a chance” as a theory of “probabilistic causation” that only applies to medical malpractice misdiagnosis cases. The theory is that if a physician negligently fails to diagnose a curable disease, and the patient is harmed by the disease, the physician should be liable for causing the “loss of a chance” of a cure. We shall see that if the chance of a cure is less than 50 percent, the plaintiff cannot prove by a preponderance of evidence that the negligence caused the harm, and would recover no damages under …
Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii
Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii
Faculty Publications
Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. Indeed, the assertion that tort law and insurance law are intertwined is utterly unremarkable; many commentators have observed that tort law cannot be understood if the business of insurance and the law regulating it is ignored, and that insurance law cannot be understood if tort law is ignored. Several generations of law students have read casebooks, which in varying degrees pay homage to the connections between torts and insurance. Many law review articles and noteworthy books (or portions thereof) have plumbed the tort-insurance relationship. Although one …
States Starting To Offer Legal Protection For Apology, Richard C. Reuben
States Starting To Offer Legal Protection For Apology, Richard C. Reuben
Faculty Publications
There is a small trend a-foot in the state legislatures, and a welcome one at that: Providing some legal protection for people who want to apologize for their role in a harm, but who are fearful because of the possibility that their apologies will later be used against them in legal proceedings.
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
Faculty Publications
According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …
Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer
Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer
Faculty Publications
Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property. Consider the following example: A wrongdoer shoots and instantly kills a person in the path of an avalanche that would have killed the person a few seconds later. The person's survivors bring a wrongful death action against the shooter, seeking compensation for the loss of support they would have received from the decedent if she had lived. Should the court require the shooter to pay for loss of support beyond the time that the …
Hindsight Bias And Tort Liability: Avoiding Premature Conclusions, Philip G. Peters Jr.
Hindsight Bias And Tort Liability: Avoiding Premature Conclusions, Philip G. Peters Jr.
Faculty Publications
Cognitive psychologists know that judgments made in hindsight are distorted by two cognitive heuristics-hindsight bias and outcome bias. Hindsight bias makes bad outcomes seem more predictable in hindsight than they were ex ante. Outcome bias induces us to assume that people who cause accidents have been careless. Because of these biases, individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome. In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome. Jurors are asked …
The Restatement's Rejection Of The Misappropriation Tort, Gary Myers
The Restatement's Rejection Of The Misappropriation Tort, Gary Myers
Faculty Publications
Some legal theories, like the proverbial vampire, refuse to die. The common law tort of misappropriation is one such legal theory, and the recent Restatement (Third) of Unfair Competition (Restatement) may finally lead to the demise of this outdated cause of action. Misappropriation began advisedly enough as a means of protecting certain intellectual property rights from unjust usurpation, often by direct competitors employing improper means. Arising before comprehensive copyright, patent, and trademark laws were fully developed, the tort may have played an important role in protecting intangible proprietary interests.The tort's high water mark was the 1918 Supreme Court decision in …
Dean John Wade And The Law Of Torts, Gary Myers
Dean John Wade And The Law Of Torts, Gary Myers
Faculty Publications
Dean John Wade's death last year ends the career of a great scholar, teacher, and administrator. His many accomplishments and his impressive personal traits have been duly praised and chronicled. His legacy includes an impressive body of scholarly work, many former students trained in the ways of the law, and institutions that are better for his walking their hallways. This article focuses on one particular aspect of Dean Wade's contribution--his impact on the law of torts.
Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer
Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer
Faculty Publications
Three major policies underlie tort liability: deterrence, compensation, and corrective justice. A primary justification for proportional liability is its alleged superiority in advancing the tort policy of deterrence. This Article demonstrates a significant flaw in this claim by showing that the use of tort liability in multiple cause cases involving statistical evidence in fact serves the policy of deterrence quite poorly.
The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers
The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers
Faculty Publications
During the last twenty years, there has been a revolution in antitrust law. As a result of extensive scholarly and judicial analysis, a new learning has developed concerning the content, role, and effect of antitrust doctrines. This trend has focused primarily on the primacy of consumer welfare and economic efficiency. Most commentators now assume that these two interrelated goals are the principal, if not exclusive, concerns of antitrust law. The United States Supreme Court has responded to these new approaches by modifying or altering antitrust law in a long series of cases. Similarly, the new learning has affected the focus …
Rethinking Wrongful Life: Bridging The Boundary Between Tort And Family Law, Philip G. Peters Jr.
Rethinking Wrongful Life: Bridging The Boundary Between Tort And Family Law, Philip G. Peters Jr.
Faculty Publications
Traditional tort law embraces an unduly narrow notion of corrective justice that fails to resolve wrongful life disputes satisfactorily. The unique circumstances associated with the creation of a new life bring into play another, broader paradigm of responsibility: one that resembles family law more than tort. From this perspective, children whose birth can be attributed to tortious conduct have a strong moral claim for supplemental child support whenever a tortfeasor's interference with the pro- creative rights of the parents foreseeably results in the birth of a child and that child's parents cannot provide adequate support. In such an instance, the …
Products Liability-Proximate Cause, Intervening Cause, And Duty, David A. Fischer
Products Liability-Proximate Cause, Intervening Cause, And Duty, David A. Fischer
Faculty Publications
The primary emphasis of this article will be on the application of proximate cause in strict liability cases involving physical harm to person or property. This includes breach of implied warranty cases causing physical harm as well as strict tort liability cases. For purposes of the matters discussed in this article, the two theories are essentially the same. The major difference between the theories is that warranty law may recognize some contract defenses that do not apply in strict tort cases. The article will also discuss negligence cases for purposes of comparison and contrast with the strict liability cases. This …
New Settlement Statute: Its History And Effect, David A. Fischer
New Settlement Statute: Its History And Effect, David A. Fischer
Faculty Publications
The statute concerning releases in multiple tortfeasor cases was amended to encourage settlements in two ways. It protects the settling tortfeasor from future liability for contribution, and it protects the settling claimant from having future judgments against non-settling tortfeasors reduced by more than an amount ascertainable at the time of the settlement. This article discusses the operation of the new statute and its relation to the law of contribution, indemnity, and comparative fault in Missouri.
Tort Law: Expanding The Scope Of Recovery Without Loss Of Jury Control, David A. Fischer
Tort Law: Expanding The Scope Of Recovery Without Loss Of Jury Control, David A. Fischer
Faculty Publications
This article will analyze the types of changes that are taking place by examining three expanding areas of tort law: liability for negligently inflicted mental distress, negligently inflicted pure pecuniary loss, and harm caused by defective products. This examination will demonstrate that the scope of liability can be increased in at least two ways. One is by formally expanding the scope of existing causes of action, e.g., relaxing arbitrary barriers to liability or expanding the type of damages which may be recovered. A second method is by relaxing judicial control over the jury. This relaxation of control can take place …
Role Of Misuse In Products Liability Litigation, David A. Fischer
Role Of Misuse In Products Liability Litigation, David A. Fischer
Faculty Publications
Misuse is puzzling. Sometimes it cuts off liability and sometimes it does not, but courts have failed to clarify exactly what sort of conduct qualifies as the type of misuse that bars recovery. Generally speaking misuse takes two forms, abnormal use and mishandling. Abnormal use comes about when a product is used for an improper purpose; mishandling comes about when a product is used for a proper purpose but in an improper manner. Under this definition defendants can claim that virtually any unusual handling or use of a product constitutes misuse. Yet courts will not always accept this characterization. They …
Products Liability--Functionally Imposed Strict Liability, David A. Fischer
Products Liability--Functionally Imposed Strict Liability, David A. Fischer
Faculty Publications
Many manufacturers and insurance companies claim that a products liability crisis exists. This is evidenced by soaring products liability insurance rates. They express the fear that as insurance becomes unavailable or prohibitively expensive, useful products will be withheld from the market and some manufacturers may even be forced out of business. Such critics of the tort system are calling for modifications of the common law in order to give greater protection to manufacturers. A more drastic approach, vigorously championed by Professor Jeffrey O'Connell, calls for total or partial abolition of the tort system and substitution with various forms of no-fault …
Products Liability--Applicability Of Comparative Negligence, David A. Fischer
Products Liability--Applicability Of Comparative Negligence, David A. Fischer
Faculty Publications
Products liability and comparative negligence are two very rapidly developing fields of tort law. In recent years, the vast majority of courts have adopted strict liability for harm caused by defective products. At the same time, the doctrine of comparative negligence has changed almost overnight from a doctrine that had been accepted by only a handful of jurisdictions into what is now the majority approach in this country.
Products Liability--Applicability Of Comparative Negligence To Misuse And Assumption Of The Risk, David A. Fischer
Products Liability--Applicability Of Comparative Negligence To Misuse And Assumption Of The Risk, David A. Fischer
Faculty Publications
A trend is emerging to apply comparative negligence in strict products liability actions. This creates two serious difficulties. First is the question of how to compare the negligence of one party with the strict liability of the other party.
Fraudulently Induced Consent To Intentional Torts, David A. Fischer
Fraudulently Induced Consent To Intentional Torts, David A. Fischer
Faculty Publications
This article will first proceed with a brief discussion of the nature of consent, the origin and application of the Restatement rule, and the exceptions to the rule which limit its application. A detailed analysis of the cases will follow.
Products Liability--The Meaning Of Defect, David A. Fischer
Products Liability--The Meaning Of Defect, David A. Fischer
Faculty Publications
In the products liability area the pendulum has now swung back to the imposition of strict liability. This transition, beginning with the elimination of the privity requirement in negligence actions, continuing with the imposition of strict liability under a warranty theory, and culminating in the development of a tort theory of recovery in strict liability, has been well-documented.
Ownership Of Automobile As Prima Facie Evidence Of Responsibility For Negligence Of Person Operating It, Conly Purcell
Ownership Of Automobile As Prima Facie Evidence Of Responsibility For Negligence Of Person Operating It, Conly Purcell
University of Missouri Bulletin Law Series
Generally speaking, absent statutory change, an owner of an automobile is responsible for injuries resulting from its negligent operation by another, only if it is shown that, at the time of the injury, the relationship of principal and agent or master and servant existed between the owner and the operator, and that the operator was then acting in the scope of his employment. Ordinary human experience and knowledge show clearly that in the great majority of cases automobiles are operated by their owners or by some servant or agent on the owner's business. It is equally apparent that in the …
Tort Liability For Negligence In Missouri, George L. Clark
Tort Liability For Negligence In Missouri, George L. Clark
University of Missouri Bulletin Law Series
It was stated, at the beginning of the first article in this series, that in order to make out a prima facie case in an action based upon a negligent tort of the defendant, the plaintiff must allege and prove not only that the defendant was negligent, but also that the defendant's negligent misconduct was at least a part of the legal or proximate cause of the plaintiff's damage. In this article will be discussed the subjects of legal or proximate cause and contributing misconduct of the plaintiff.
Tort Liability For Negligence In Missouri, George L. Clark
Tort Liability For Negligence In Missouri, George L. Clark
University of Missouri Bulletin Law Series
In order to make out a prima facie case in Missouri in an action based upon a negligent tort of the defendant, the plaintiff must allege and prove that the defendant was negligent and that his negligent act was at least a part of the proximate cause of the plaintiff's damage. In order to show that the defendant was negligent the plaintiff must show that there was a legal duty to use care resting upon the defendant and owed to the plaintiff, and that such duty was not fulfilled. The defendant may defeat this prima facie case by showing that …