Law Commons^™

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, In Symposium, The John W. Wade Conference On The Third Restatement Of Torts, Richard W. Wright

All Faculty Scholarship

Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying …

Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan

Faculty Publications By Year

No abstract provided.

Trade Secrets, Non-Competes, And Unfair Competition, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Trade Secrets, Non-Competes, and Unfair Competition held by UK/CLE in October 2001.

Drug Designs Are Different, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

The Externality Of Victim Care, Alan J. Meese

Faculty Publications

No abstract provided.

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 …

Freedom Of Speech And True Threats, Jennifer E. Rothman

All Faculty Scholarship

This article proposes a new test for determining what is a true threat - speech not protected by the First Amendment. Despite the importance of the true threats exception to the First Amendment, this is an underexplored area of constitutional law.

Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. To make this determination circuit courts have adopted inconsistent and inadequate tests including a reasonable listener test. The Supreme Court has never granted certiorari to resolve the issue.

The law surrounding threats has gained recent …

Revisiting The Taxation Of Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

In our recent article, Taxing Punitive Damages, available at http://ssrn.com/abstract=1421879, we argued (1) that plaintiffs in punitive damages cases should be allowed to introduce to the jury evidence regarding the deductibility of those damages by defendants, and (2) that this jury tax-awareness approach is better than the Obama Administration’s suggested alternative of disallowing those deductions.

To our delight, Professor Larry Zelenak and Paul Mogin have each provided published comments to our piece on Virginia Law Review's In Brief companion website. Professor Zelenak’s thoughtful response focuses on our prescriptive claim that jury tax-awareness is better than nondeductibility, while Mr. Mogin disputes …

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 …

Apportioning Tort Damages In New York: A Method To The Madness, Paul F. Kirgis

Faculty Law Review Articles

This Article proposes a unified formula for calculating damages in complex, multiparty tort cases. While the formula is my own, it incorporates the available case law and rests on the judgments of New York's most prominent civil practice scholars where no judicial guidance exists. Perhaps the most convincing claim to legitimacy I can offer, however, is the fact that my methodology produces results consistent with the principles motivating the statutory provisions at issue.

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

UF Law Faculty Publications

Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. The authors examine how the study of torts is enriched when insurance concepts play a role in students' analysis. The discussion is divided into two parts. Part I offers a "macro" perspective on the connections between tort and insurance, summarizing the principal issues in play when the purposes of tort law are analyzed against the backdrop of first-party and third-party insurance compensation mechanisms. Part II provides a "micro" perspective on tort-insurance connections, taking a sample of discrete tort law principles, representative of those discussed in a …

Intent And Recklessness In Tort: The Practical Craft Of Restating Law, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Intent And Recklessness In Tort: The Practical Craft Of Restating Law, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Duty Rules, David G. Owen

Faculty Publications

No abstract provided.

Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton

Scholarly Works

This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice.

Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells

Scholarly Works

Tort liability in the private realm may be understood as "an instrument aimed...at deterrence...[and] a way of achieving corrective justice between the parties." Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue with this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point of his article, …

In Defense Of Making Government Pay: The Deterrent Effect Of Constitutional Tort Remedies, Myriam E. Gilles

Articles

Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist's information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits.

Restatement (Third) Of Torts: General Principles And The Prescription Of Masculine Order, Anita Bernstein

Faculty Scholarship

No abstract provided.

Conjoining International Human Rights Law With Enterprise Liability For Accidents, Anita Bernstein

Faculty Scholarship

No abstract provided.

Don't Train Your Employees And Cancel Your "1-800" Harassment Hotline: An Empirical Examination And Correction Of The Flaws In The Affirmative Defense To Sexual Harassment Charges, David Sherwyn, Michael Heise, Zev J. Eigen

Cornell Law Faculty Publications

The Supreme Court's two-pronged affirmative defense limiting employer liability for sexual harassment, articulated in the Faragher and Ellerth decisions, generated substantial scholarly commentary. Many scholars were quick to predict how lower courts would apply the affirmative defense. However, many predictions about the affirmative defense were advanced prior to the emergence of a sufficient number of judicial opinions applying it.

In this article we report results of our empirical study of the first 72 post-Ellerth and Faragher opinions involving employers' summary judgment motions that include affirmative defenses in response to allegations of sexual harassment in the workplace. We find that employer-related …

Coverage For Unfair Competition Torts Under General Liability Policies: Will The "Intellectual Property" Tail Wag The Coverage Dog?, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

A Somewhat Modest Proposal To Prevent Adultery And Save Families: Two Old Torts Looking For A New Career, William R. Corbett

Journal Articles

No abstract provided.

Interest Analysis, Multistate Policies, And Considerations Of Fairness In Conflicts Torts Cases, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.

What's In A Name? Law's Identity Under The Tort Of Appropriation, Jonathan Kahn

Faculty Scholarship

This article is divided into three parts. In Part I, the article explores the notion that under the tort of appropriation, a person’s name is understood to implicate critical aspects of her identity. This notion is explored in relation to specific historical cases raising the issues of whether a woman who adopts her husband’s name has a property right in that name and whether a person who adopts a professional or stage name has separate rights in that name apart from his legal name. Second, Part II focuses on a person’s right to maintain the integrity of his physical image. …

Jurors, Judges, And The Mistreatment Of Risk By The Courts, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

A sample of almost 500 jury-eligible citizens considered a series of experimental situations involving accidents. The juror sample did not properly apply negligence rules, as their errors were particularly great for low-probability, large-loss cases. They also penalized corporations for undertaking corporate risk analyses that seek to trade off cost versus risk reduction benefits. Jurors' damages assessments were also more prone to error than were responses by a sample of state judges. Judges were less prone to erroneous risk beliefs and less subject to the zero-risk mentality.

Federal Preemption Of State Tort Claims, Marin Roger Scordato

Scholarly Articles

This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions.

Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court's docket for many …

Berne Without Borders: Geographic Indiscretion And Digital Communications, Jane C. Ginsburg

Faculty Scholarship

This lecture examines the role of borders in the Berne Convention at the time of the treaty's first passage in 1886, and today. The later 19th century was an era of increasing commerce and communication among countries whose domestic production and reproduction of works of authorship had vastly increased, thanks in part to new technologies, such as photography, lithography, and high-speed printing. But at that time, the frontiers between nations often frustrated authors' hopes for control over, or at least compensation for, the international exploitation of their works. Authors' rights ceased at their national boundaries; the world beyond foreboded not …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in the years 2000 and 2001.

Ohio: A Microcosm Of Tort Reform Versus State Constitutional Mandates, Stephen J. Werber

Law Faculty Articles and Essays

Tort reform emanates, for our purposes, from two primary bodies: state judicial and legislative branches. The vast panoply of congressional and regulatory federal action that bears on the protections afforded and rights to recover for persons within their ambit is a subject for another day. Similarly, the rare areas in which the Supreme Court of the United States establishes federal common law are subjects for another day. On a national scale, the impetus for state legislative reform action can be found in a series of landmark decisions that were soon adopted, in largely similar form, by almost all state supreme …

Introduction To Torture As Tort: From Sudan To Canada To Somalia, Craig M. Scott

Articles & Book Chapters

The present work is chapter 1 of the edited volume, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Hart Publishing, Oxford, 2001). At the time the book was generated, the controversial nature of seeking globalised justice through national courts had become starkly apparent in the wake of the Pinochet case in which the Spanish legal system sought extradition of the former President of Chile from the United Kingdom in order to bring him to account under Spanish criminal law for a variety of alleged violations in Chile of human rights, most notably involving torture. Yet, …