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Articles 1 - 19 of 19
Full-Text Articles in Law
Sieracki Lives: A Portrait Of The Interplay Between Legislation And The Judicially Created General Maritime Law, Thomas C. Galligan Jr.
Sieracki Lives: A Portrait Of The Interplay Between Legislation And The Judicially Created General Maritime Law, Thomas C. Galligan Jr.
Journal Articles
In American maritime law, the interplay between the courts and Congress is complex and iterative. A significant body of American admiralty law, the general maritime law, has been judicially created and developed. But Congress has also enacted a number of important statutes governing maritime commerce and the rights of maritime workers, such as the Longshore and Harbor Worker’s Compensation Act (“LHWCA”). The back and forth between the courts and Congress in interpreting those statutes and gauging their impact on and consistency with the general maritime law is ongoing. One important area where the courts development of the general maritime law …
The Structure Of Torts, Thomas C. Galligan Jr.
The Structure Of Torts, Thomas C. Galligan Jr.
Journal Articles
Tort law consists of a number of different causes of action which are seemingly unrelated except that all involve civil wrongs, other than mere breaches of contract. The various torts have different elements; some, like the nominate or intentional torts, very specific; others, like negligence, more general and vague. There is no apparent, coherent, or consistent structure applicable to all torts. This Article articulates just such a unified structure for all torts: one that arises out of and is based upon the elements of negligence. All torts involve the judicial delineation of the defendant's duty or legal obligation. All torts …
Finding A Better Way Around Employment At Will: Protecting Employees' Autonomy Interests Through Tort Law, William Corbett
Finding A Better Way Around Employment At Will: Protecting Employees' Autonomy Interests Through Tort Law, William Corbett
Journal Articles
No abstract provided.
Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell
Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell
Journal Articles
This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …
Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French
Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French
Journal Articles
Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …
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 …
The Bp B1 Bundle Ruling: Federal Statutory Displacement Of General Maritime Law, John Costonis
The Bp B1 Bundle Ruling: Federal Statutory Displacement Of General Maritime Law, John Costonis
Journal Articles
Among the many unresolved legal questions posed by BP’s Gulf well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA or OPA 90). OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the United States District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (hereinafter B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by …
Perception And Decision At The Threshold Of Tort Law: Explaining The Infrequency Of Claims, David M. Engel
Perception And Decision At The Threshold Of Tort Law: Explaining The Infrequency Of Claims, David M. Engel
Journal Articles
Although numerous studies have confirmed that tort victims rarely litigate and that most simply "lump" their losses, we lack an understanding of why this should be so. Why do the vast majority of injured persons choose inaction over action? Explanations relying on rational actor theories on the one hand or cultural determinism on the other have been sharply challenged by recent studies of mind, culture, and cognition, particularly with respect to individual responses to physical trauma and disablement. This article, drawing on a broad interdisciplinary literature dealing with injury victims, proposes a new model of perception and decision by persons …
Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French
Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French
Journal Articles
In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …
Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, William R. Corbett
Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, William R. Corbett
Journal Articles
Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or “cat’s paw”) liability. Staub was not the first case in which the Court has suggested that a federal employment …
The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French
Journal Articles
As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French
Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French
Journal Articles
Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …
The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis
The Macondo Well Blowout: Taking The Outer Continental Shelf Lands Act Seriously, John J. Costonis
Journal Articles
Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, …
Construction Defects: Are They “Occurrences”?, Chris French
Construction Defects: Are They “Occurrences”?, Chris French
Journal Articles
An issue in the area of insurance law that has been litigated frequently in recent years is whether construction defects are “occurrences” under Commercial General Liability (“CGL”) insurance policies. The courts have been divided in deciding the issue and in their approaches to analyzing the issue. This article addresses how the issue should be analyzed and concludes that construction defects are “occurrences”. The relevant rules of insurance policy interpretation dictate that construction defects are “occurrences”. Policy language should be interpreted in such a way as to fulfill the reasonable expectations of the policyholder when the policy is construed as a …
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French
Journal Articles
How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …
Convergence In Contort: Landlord Liability For Defective Premises In Comparative Perspective, Melissa T. Lonegrass
Convergence In Contort: Landlord Liability For Defective Premises In Comparative Perspective, Melissa T. Lonegrass
Journal Articles
No abstract provided.
A Process Theory Of Torts, Jay Tidmarsh
A Process Theory Of Torts, Jay Tidmarsh
Journal Articles
This article is meant to reconcile two schools of intellectual thought regarding tort law, the conceptualist and the anti-conceptualist. It argues that torts must be understood as a system in perpetual process--forever indefinite and infinitely malleable in its precise theoretical, doctrinal and practical manifestations--yet ultimately bounded in its possibilities. It then defines the limits of torts law as a process that constantly regenerates the old face of tort theory, doctrine and practice into the new.
Manufacturers' Or Marketers' Liability For The Criminal Use Of Saturday Night Specials: A New Common Law Approach--Kelley V. R.G. Industries, 497 A.2d 1143 (Md. 1985), Matthew Steffey
Journal Articles
No abstract provided.
Probability Theory Meets Res Ipsa Loquitor, David H. Kaye
Probability Theory Meets Res Ipsa Loquitor, David H. Kaye
Journal Articles
Day in and day out, attorneys, judges, and jurors must estimate probabilities. To be sure, we rarely quantify such estimates of probability and almost never adopt the terminology and mathematics of probability theory to resolve matters. Nevertheless, the mathematical theory of probability can be applied to legal problems in various ways. This article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. While not urging that jurors be instructed in probability theory or be equipped with microprocessors, it does seek an accurate statement of the res ipsa doctrine …