Law Commons^™

Slavery And Tort Law, Keith N. Hylton

Faculty Scholarship

This paper evaluates the claim for slavery reparations from a torts perspective. I start with an examination of the injuries inflicted on slaves, and the extent to which tort law provides a vehicle for redressing these injuries. I then take up the question of derivative claims, claims brought by someone other than the direct victim, a category which covers the reparations complaint. Lastly, I discuss the accounting demand by the reparations plaintiffs. The derivative status of reparations claims presents special obstacles for plaintiffs. However, applying today's law to slavery should be viewed as bringing law to a regime from which …

A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg

Faculty Scholarship

In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how …

Punitive Damages By Juries In Florida: In Terrorem And In Reality, Neil Vidmar, Mary R. Rose

Faculty Scholarship

In recent years there have been numerous proposals for punitive damage reform. Proponents of such reform have often asserted that punitive damages are both common and exorbitant. In this Article, Professor Vidmar and Dr. Rose examine the validity of these and other empirical claims about punitive damages. They do so by studying punitive damage awards reported in the Florida Jury Verdict Reporter. Ultimately, they conclude that there is no empirical support for the claims made by proponents of tort refrom in Florida.

The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman

Faculty Scholarship

Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …

The Impact Of "Exceptional" Statutes On Civil Litigation In Minnesota, Michael K. Steenson

Faculty Scholarship

This article examines the treatment of “exceptional” statutes--statutes intended to protect a specific class of persons against their own inability to protect themselves--by the Minnesota appellate courts. After an analysis of the origins of the negligence per se doctrine in Minnesota, the article briefly examines the relationship between negligence per se and common law negligence. Then, following a brief historical background discussion of earlier cases involving exceptional statutes, the article focuses on individual cases in which the exceptional statutes are implicated. The goal of the article is to determine whether the law the supreme court developed has been consistently adhered …

The Tale Of A Tail, James F. Hogg

Faculty Scholarship

The commercial general liability insurance industry shifted, in 1986, from the use of an “occurrence-based” to a “claims-made” policy form. So-called “tail” or “long tail” claims have continued nevertheless, to be asserted under the older “occurrence” policies which required that injury occur during the term of the policy, but not that the claim for such injury be made or brought at any particular time. In seeking state approval to use the new “claims-made” form in 1985-86, the insurance industry represented that the new form would not affect coverage under the old “occurrence” form. Despite that representation, insurers are now asserting, …

Disability And Income Loss Benefits Under The Minnesota No-Fault Act, Michael K. Steenson

Faculty Scholarship

The Minnesota No-Fault Automobile Insurance Act was intended to ensure the “prompt payment of specific basic economic loss benefits to victims of automobile accidents without regard to whose fault caused the accident,” to prevent overcompensation of less seriously injured people by the interposition of tort thresholds, and to encourage appropriate medical and rehabilitation treatment by assuring prompt payment for that treatment. It seems clear that at least some of the initial promise of the Act has not been fulfilled. Payment of basic economic loss benefits, which the legislature intended to be paid promptly, has become bogged down in a quagmire …

Civil Liability For Pure Economic Loss Under American Tort Law, Herbert Bernstein

Faculty Scholarship

No abstract provided.

The Constitutional Limits Of Judicial Rulemaking: The Illegitimacy Of Mass-Tort Settlements Negotiated Under Federal Rule 23, Paul D. Carrington, Derek P. Apanovitch

Faculty Scholarship

No abstract provided.

On The Idea Of Private Law, Martin Stone

Faculty Scholarship

No abstract provided.

Utility And Community: Musings On The Tort/Crime Distinction, Stephen G. Marks

Faculty Scholarship

In this Paper, I propose the following two step procedure to explain both the inclusion and exclusion of criminal utility. As a first step, I posit a full compliance utility function. This utility function includes all utilities for all activities and incorporates an assumption that all members of society will forego prohibited activities. Aa s preliminary matter, I will also presuppose common information and shared values within the community. I suggest that maximization of full compliance social utility determines what society prohibits. As a second step, I strip the social utility function of the utility from prohibited activities and drop …

With The Legislature's Permission And The Supreme Court"S Consent, Common Law Social Host Liability Returns To Minnesota, Michael K. Steenson

Faculty Scholarship

In 1990, the Minnesota Legislature amended the Civil Damage Act to allow for common law tort claims against persons 21 years old or older who knowingly provide alcohol to a person under 21 years of age. The 1990 amendment is unique because the legislature in effect appears to be releasing its stranglehold on liquor liability law, permitting the courts to apply common law negligence principles under the defined circumstances, but without providing any guidelines as to how the common law remedy should be formulated. The interpretive problems the amendment creates will eventually have to be resolved by the courts. The …

Keeping The Pierringer Promise: Fair Settlements And Fair Trials, Peter B. Knapp

Faculty Scholarship

This article explores why Perringer releases have failed to promise fairness to the nonsettling defendant. For over thirty years, Pierringer releases have been part of the ebb and flow of civil litigation. In 1978, the Minnesota Supreme Court officially approved the use of Pierringer releases in Minnesota. When first adopted, the release seemed to promise something for everyone. The Pierringer release even offered a promise of fairness to the nonsettling defendant: Be assured that, no matter what the outcome of trial, you will pay no more than your “fair share” of the verdict. Unfortunately, however, largely because of the impact …

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

Separation Of Powers Conflicts In The "Reform" Of Arkansas Workers' Compensation Law, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Are Juries Competent To Decide Liability In Tort Cases Involving Scientific/Medical Issues? Some Data From Medical Malpractice, Neil Vidmar

Faculty Scholarship

No abstract provided.

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …

Reflections On The Historical Context Of Section 402a, Oscar S. Gray

Faculty Scholarship

No abstract provided.

Teaching Laws With Flaws: Adopting A Pluralistic Approach To Torts, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Is An Employment-Discrimination Award Taxable?, L. Scott Stafford

Faculty Scholarship

No abstract provided.

Sticks And Stones Can Break My Name: Nondefamatory Negligent Injury To Reputation, Katharine B. Silbaugh

Faculty Scholarship

If a reputation is injured, does it matter whether defamation is the cause? Injury to reputation differs from other items of damage a plaintiff enumerates. Tradition links it to particular tortious conduct-defamation-on the part of a defendant. This Comment examines ordinary negligent conduct as an alternative ground for recovery for injury to reputation.

Of Harms And Benefits: Torts, Restitution, And Intellectual Property, Wendy J. Gordon

Faculty Scholarship

Copyright and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.

Joint And Several Liability Minnesota Style, Michael K. Steenson

Faculty Scholarship

This article examines the rule of joint and several liability as it was adopted, modified, and applied in Minnesota circa 1989. The article first examines the judicial origins and applications of the rule in Minnesota. It then analyzes the impact of the comparative negligence and fault legislation on the rule of joint and several liability, including the limitations imposed on the rule in 1978, 1986, and 1988. Finally, it makes some suggestions for interpreting joint and several liability legislation that are consistent with the legislative history of the legislation as well as with Minnesota Supreme Court decisions concerning aggregation under …

Tort Liability In France For The Act Of Things: A Study Of Judicial Lawmaking, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

The Fault With Comparative Fault: The Problem Of Individual Comparisons In A Modified Comparative Fault Jurisdiction, Michael K. Steenson

Faculty Scholarship

Minnesota courts have interpreted the Minnesota Comparative Fault statute as requiring comparison of a plaintiff's negligence with the individual negligence of each defendant. Exceptions to this rule involve joint venture cases. This Article examines the individual comparison rule and explores an alternative rule which provides for a comparison of the plaintiff's negligence with the aggregate negligence of the defendants.

Note, Frye V. Frye: Maryland Sacrifices The Child For The Sake Of The Family, Kathryn Webb Bradley

Faculty Scholarship

No abstract provided.

Compensation For Victims Of Hazardous Substance Exposure, J. David Prince

Faculty Scholarship

Hazardous wastes, threatening environmental and human safety, are being generated at an alarming rate. In this Article, J. David Prince discusses the threats posed by hazardous wastes and the remedies that are available in Minnesota for dealing with those threats. Professor Prince analyzes a proposed compensation scheme for victims of hazardous waste exposure in Minnesota and suggests that a modification of that scheme be adopted by the Minnesota Legislature.

The Anatomy Of A Torts Class, James Boyle

Faculty Scholarship

No abstract provided.

A Primer On Minnesota No-Fault Automobile Insurance, Michael K. Steenson

Faculty Scholarship

The Minnesota No-Fault Act has undergone substantial change since its enactment in 1974. Recent legislative modifications and judicial constructions of the Act's provisions have served to correct earlier deficiencies, but have raised new and complex problems of interpretation. In light of these developments, Professor Steenson provides an overview that explains how the Act functions. After tracing the history of automobile insurance regulation in Minnesota, Professor Steenson examines in detail the various compulsory and optional insurance coverages under the Act, the proper sources of payment under those coverages, and the limitations imposed by the Act on the right to recover damages …

The Anatomy Of Products Liability In Minnesota: Principles Of Loss Allocation, Michael K. Steenson

Faculty Scholarship

In this article, Professor Steenson continues the discussion that began in The Anatomy of Products Liability in Minnesota: The Theories of Recovery, appearing in the last Issue of the William Mitchell Law Review, by shifting the analytical focus to the problems involved in allocating awards among the parties in Minnesota products liability cases. Professor Steenson analyzes defenses, contribution and indemnity, and the impact of Minnesota's comparative fault act on products liability law.