Law Commons^™

The Illusive "Reasonable Person": Can Neuroscience Help The Mentally Disabled?, Ian J. Cosgrove

Notre Dame Law Review

This Note argues that the distinction between what constitutes a physical versus a mental disability can no longer rationally be sustained. Specifically, its purpose is to show that providing an exception to the “reasonable person” standard in negligence actions for the physically disabled while withholding it for those with mental infirmities is increasingly indefensible. Part I briefly tracks the origins of the current rule in tort law that holds the mentally and physically disabled to separate standards. This discussion is purposely left short because of the breadth of scholarship tracing the standard. Part II seeks to justify, through neuroscientific brain …

Victim Compensation Funds And Tort Litigation Following Incidents Of Mass Violence, Paul Heaton, Ivan Waggoner, Jamie Morikawa

Buffalo Law Review

No abstract provided.

Product Liability, Franklin P. Brannan Jr., P. Michael Freed, Jake C. Evans

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2013 and May 31, 2015. It covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Torts, Phillip Comer Griffeth, Cash V. Morris, Christopher R. Breault

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2014 and May 31, 2015.

Naquin V. Elevating Boats, Llc: The Fifth Circuit’S Improper Expansion Of Jones Act “Seaman Status” Qualification, Timothy M. O'Hara

Pace Law Review

The story began nearly a century ago, when Congress enacted the Jones Act and effectively made “seamen the most generously treated personal injury victims in American law.” But defining a Jones Act seaman has not come easy, as it took the United States Supreme Court seventy five years to arrive at the modern seaman status test. This commentary examines the “tortured history” of the Jones Act, how qualification for the statute’s protections has evolved, the modern seaman status test, and the implications of the Fifth Circuit’s recent application thereof. Section II gives a brief history and explanation of maritime law …

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

William & Mary Law Review

Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

William & Mary Environmental Law and Policy Review

No abstract provided.

What We Have Here Is A Failure To Compensate: The Case For A Federal Damages Remedy In Koontz "Failed Exactions", Christopher M. Kieser

William & Mary Environmental Law and Policy Review

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court held that an agency could not, consistent with the Takings Clause, condition a permit on a land exaction unless the exaction bears an “essential nexus” and “rough proportionality” to the harms the government seeks to mitigate. Then, in Koontz v. St. Johns Water Management District, 133 S. Ct. 2586 (2013), the Court extended Nollan and Dolan to exactions that were never completed because the property owner refused to acquiesce to the demand. Nevertheless, the Court held that …

Double Damages Or Nothing: Whether Medicare Advantage Organizations Have A Private Cause Of Action Under The Medicare Secondary Payer Act, Jennifer A. Prevete

St. John's Law Review

(Excerpt)

Part I of this Note outlines the history and purpose of the Medicare statute, Medicare Advantage, and the MSP Act. The MSP Act dictates that insured individuals pursue coverage from “primary plans” while Medicare makes conditional payments with the agreement that the primary plans will reimburse the costs. Part II provides the MSP Act’s spectrum of interpretations and why the United States Circuit Courts of Appeals have read the private cause of action with varying expansiveness. Part III concludes that the private cause of action should not be extended to MAOs, asserting that the extension ultimately results in harm …

For Every Wrong, A Remedy: A Narrow Interpretation Of The Locomotive Inspection Act's Preemptive Scope In Asbestos Cases, Andrew Malzahn

Hamline Law Review

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In Praise Of Ex Ante Regulation, Brian Galle

Vanderbilt Law Review

The plaintiffs' daughter was four years old when they brought her in to the local medical clinic. Clinic staff gave the girl a sedative to keep her calm while they examined her, but they miscalculated the dose, and she later died.' Tort liability, or the specter of it, is supposed to discourage these kinds of preventable tragedies. The clinic's owner, fearing a potential crippling award to bereaved families, should have trained his staff more carefully. As it happens, the owner instead had carefully scooped all the assets out of the firm. When the girl's parents won a $34.6 million award …

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael L. Wells

St. John's Law Review

(Excerpt)

Part I makes the crucial point that compensation is a tool and not a distinct goal of tort liability. With civil recourse theory as a guidepost, Part II argues that one of the aims of constitutional tort law is vindication of the plaintiffs rights. Civil recourse principles teach that vindication may be at least partly achieved even when immunity blocks compensation. Part III shows how the Court's failure to distinguish vindication from compensation has unnecessarily impeded the vindication of rights. Two important official immunity cases-Camreta v. Greene and Pearson v. Callahan -illustrate the missed opportunities and show how …

Reasonable Precaution For The Individual, Dov Waisman

St. John's Law Review

(Excerpt)

This Article has four parts. In Part I, I introduce the question to be explored and describe Barbara Fried's challenge to any attempt to answer that question without summing costs and benefits across persons. Part II responds directly to Fried's challenge, presenting the individualized feasibility principle as a viable, nonaggregative interpretation of reasonable precaution. In Part III, I explore the theoretical underpinnings of the IFP, drawing on a theory of normative ethics known as ex ante contractualism. Part IV concludes.

The Shortcomings Of New York's Long-Arm Statute: Defamation In The Age Of Technology, Robert D. Nussbaum

St. John's Law Review

(Excerpt)

This Note suggests that the New York legislature amend New York's long-arm statute so that it no longer excludes the tort of defamation as a basis for long-arm jurisdiction. Part I provides a brief background and history of jurisdiction and longarm statutes in general. It also focuses on New York's statute more specifically. Part II focuses on the arguments for excluding acts of defamation from long-arm jurisdiction and compares New York's statute to those of other states. Finally, Part III examines the different policy reasons for changing the statute and argues that such a change will not offend Due …

When They Don't Want Your Corn: The Most Effective Tort Claims For Plaintiffs Harmed By Seed Companies Whose Genetically Engineered Seeds Produced More Problems Than Profits, Sarah Holm

Hamline Law Review

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Uncapping Compensation In The Gore Punitive Damage Analysis, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

BMW of North America, Inc. v. Gore rests, in part, on the “understandable relationship” between a civil jury’s award of compensatory and punitive damages. Gore designates Due Process a protectant against excessive civil jury awards, in effect outmaneuvering the civil jury trial right. Gore identifies three guideposts to determine whether punitive damages are excessive: (1) the degree of reprehensibility of a defendant’s conduct; (2) the disparity between compensatory and punitive damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases.

This Article focuses on the second of Gore’s three guideposts, which examines the …

The Electronic Document Retention System Ate My Homework: Gross Negligence And The Rebuttable Presumption Of Prejudice Within The Doctrine Of Spoliation In Federal Courts, Tristan Evans-Wilent

St. John's Law Review

(Excerpt)

This Note argues against imposing such a rebuttable presumption where the spoliating party acted with gross negligence. Part I provides a general background of the doctrine of spoliation and its application to electronic information. Part II examines the three different approaches taken by the federal circuits to whether gross negligence should trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party. Finally, Part III argues that courts should not allow gross negligence to trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party.

"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz

Fordham Law Review

This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …

The Diffusion Of Doctrinal Innovations In Tort Law, Kyle Graham

Marquette Law Review

This Article examines the spread of “successful” common-law doctrinal innovations in the law of torts. Its analysis reveals recurring influences upon and tendencies within the diffusion of novel tort doctrines across the states. The studied diffusion patterns also document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered adoption dynamics associated with the ongoing shrinkage and fragmentation of the common-law tort dockets entertained by state supreme courts. Prevailing conditions will make it difficult, this Article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid …

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

Enduring Doctrine: The Collateral Source Rule In Wisconsin Injury Law, Joseph P. Poehlmann

Marquette Law Review

When the common law collateral source rule first arose in the area of tort law over one hundred years ago, only a minority of individuals maintained health insurance coverage to protect against loss in the event that a negligent actor injured them. Today, however, the vast majority of Americans are covered. Because of this change in the landscape of insurance coverage, many jurisdictions have abrogated or greatly eroded the collateral source rule under the belief that the rule no longer holds a justified role in personal injury litigation. Wisconsin, however, continues to follow the common law form of the rule …

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Catholic University Law Review

When parties enter into an illegal agreement and bring a dispute arising from the transaction before a court, the court finds itself in a difficult position. The court is faced with two competing interests: the importance of both upholding and protecting the dignity of the law and honoring inherent principles of U.S. contract law - freedom of contract and individual autonomy. There exists a common misconception that courts, when presented with illegal contracts, follow the rule of non-enforcement. However, an examination of case law indicates that courts are instead concerned with the consequences of their choices, and have consistently followed …

Medical Malpractice Limitations For New York Infants—Time For A Change Of Time, Eugene T. Maccarrone, Victor D. Lopez

Buffalo Public Interest Law Journal

No abstract provided.

Strict Product Liability - Blood As An Unavoidably Unsafe Product; Cunningham V. Macneal Memorial Hospital, Peter D. Oldham

Akron Law Review

In conclusion, this writer respectfully disagrees with the application of Section 402A to blood cases (assuming our present facts) and believes that blood should properly be considered an unavoidably unsafe product. Professor James agrees with this position when the defect or possibility of injury from an "unavoidably unsafe product," could not be detected prior to use of the product and occurrence of the injury. This point is strengthened, he continues, when the product is "socially desirable to put it out in spite of the inevitable risk." In other words, the decision in Cunningham could be sound only if the court …

The Product Liability Of Manufacturers: An Understanding And Exploration, Donald M. Jenkins

Akron Law Review

The beginning point will be an examination of the existing theories of manufacturer's liability namely, negligence, contract warranty and strict liability. For example purposes, Ohio law will be used to illustrate the interpretative development of the law and its application. Ohio is a legitimate jurisdiction for this purpose. It has been a pace-setting jurisdiction in the development of the law and has arrived at the point of accepting the concept of strict liability for defective products. Furthermore, the evolution of product liability law in Ohio typifies the pattern that has occurred or is occurring in a majority of the other …

Strict Product Liability - Blood As An Unavoidably Unsafe Product; Cunningham V. Macneal Memorial Hospital, Peter D. Oldham

Akron Law Review

In conclusion, this writer respectfully disagrees with the application of Section 402A to blood cases (assuming our present facts) and believes that blood should properly be considered an unavoidably unsafe product. Professor James agrees with this position when the defect or possibility of injury from an "unavoidably unsafe product," could not be detected prior to use of the product and occurrence of the injury. This point is strengthened, he continues, when the product is "socially desirable to put it out in spite of the inevitable risk." In other words, the decision in Cunningham could be sound only if the court …

The Product Liability Of Manufacturers: An Understanding And Exploration, Donald M. Jenkins

Akron Law Review

The evolution and application of product liability law in the past fifteen years represents one of the most dynamic developments in law.

The result of these rapid and violent developments has been to substantially increase the susceptibility of producers to suits by members of the public in direct actions. It was assumed the crest of the wave of expanded product liability was reached with the formulation of the legal principles set forth in Section 402A of the Restatement (Second) of the Law of Torts. However, subsequent court actions proved this assumption to be invalid.

Products Liability - Strict Liability In Tort - Measure Of Proof: Defectiveness Of Product - Unreasonably Dangerous Test Abandoned: Cronin V. J.B.E. Olson Corp., Stanley M. Schultz

Akron Law Review

Thus the issue facing the court was whether California's concept of strict liability necessarily requires a showing that the defective, injury causing product was also unreasonably dangerous." They held that it does not. In arriving at this decision the court relied heavily on the language used in its landmark decision in Greenman v. Yuba Power Products, Inc.

The Reach Of The Law: Sin, Crime And Poor Taste, Alexander B. Smith, Harriet Pollack

Akron Law Review

The past decade has been a period of intensive reevaluation of the law. The criminal law, in particular, has been subjected to an especially intensive criticism. These attacks fall largely into two categories: criticisms of the legitimacy of our penal codes, and criticisms of their efficiency.
Starting with the Civil Rights Movement of the Kennedy era with its heavy emphasis on civil disobedience as a tool of protest, the legitimacy of many of our laws was called into question. When Rosa Parks sat in the front of the bus in Montgomery, Alabama, she was not simply breaking the law; she …