Law Commons^™

Responders’ Responsibility: Liability And Immunity In Public Health Emergencies, Sharona Hoffman

Faculty Publications

Many experts predict the advent of a public health emergency resulting from a flu pandemic or bioterrorism attack in the foreseeable future. At the same time, many health care providers express significant concern about liability arising from emergency response activities, because it is unlikely that they would be able to provide optimal care in crisis conditions. They also state that this concern will likely influence their willingness to be involved in response activities. This article addresses issues that have received little attention in the legal literature: liability and immunity in public health emergencies. The article provides a first-of-its-kind comprehensive analysis …

Note, The Standard Of Proof Of Causation In Legal Malpractice Cases, Erik M. Jensen

Faculty Publications

This note argues that the use of a but for standard of causation in legal malpractice cases - i.e., that the plaintiff must show that but for the malpractice he or she would have prevailed in the underlying action - is too stringent, making recovery unreasonably difficult. The note therefore argues for implementation of a lost substantial possibility of recovery standard. This is just a student note, and an old one at that, but a lot of courts and commentators have cited it. In any event, modesty and self-restraint seem to play little role when authors are deciding what to …

Do Ask And Do Tell: Rethinking The Lawyer’S Duty To Warn In Domestic Violence Cases, Margaret B. Drew, Sarah Buel

Faculty Publications

Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers’ lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from …

Toxic Torts, Autism, And Bad Science: Why The Courts May Be Our Best Defense Against Scientific Relativism, Joelle A. Moreno

Faculty Publications

No abstract provided.

Cognitive Biases And Heuristics In Tort Litigation: A Proposal To Limit Their Effects Without Changing The World, John E. Montgomery

Faculty Publications

Behavioral studies indicate that individuals do not always make objective decisions about risk. Various cognitive biases and heuristics-- mental shortcuts everyone uses consciously or subconsciously to make decisions under conditions of uncertainty--introduce error and subjectivity. At one level, these studies merely confirm the obvious: individuals make decisions based on both reason and emotions. At another level, they may introduce serious complications into some types of legal analysis, which are based on the assumption that individuals are rational actors. The potential effects of erroneous decisions about risk are of particular concern in the area of tort law. Laboratory studies establish that …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron K. Perzanowski

Faculty Publications

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

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. …