Law Commons^™

Revising Section 402a: The Limits Of Tort As Social Insurance, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Texas Bucks The Trend - No Cause Of Action For Lost Chance Of Survival In The Medical Malpractice Context: Kramer V. Lewisville Memorial Hospital, Wayne Barnes

Faculty Scholarship

Jennie Kramer visited her gynecologist in August 1985 complaining of unusual discharges and intermittent bleeding. At that time, her doctor informed her that she tested negative for cancer. Her irregular bleeding continued, but on two subsequent visits to another doctor in November and December, Ms. Kramer was again informed that she did not have cancer. During February of 1986, after continued bleeding, Ms. Kramer detected a hard spot in her vagina. She returned to the second doctor a third time, at which time she was diagnosed with cancer. In spite of subsequent exploratory surgery and chemotherapy, Ms. Kramer died on …

Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer

Faculty Publications

Three major policies underlie tort liability: deterrence, compensation, and corrective justice. A primary justification for proportional liability is its alleged superiority in advancing the tort policy of deterrence. This Article demonstrates a significant flaw in this claim by showing that the use of tort liability in multiple cause cases involving statistical evidence in fact serves the policy of deterrence quite poorly.

A Model Of Products Liability Reform, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Constitutionality Of State Allocation Of Punitive Damage Awards, Paul F. Kirgis

Faculty Law Review Articles

This Note analyzes state allocation in light of these differing approaches. The constitutional analysis of Part II begins with a discussion of Takings Clause issues presented by the former "appropriation" approach. This section suggests some flaws in that approach and some reasons why courts might mistakenly adopt it. Part II then examines the criminal law protections embodied in the Excessive Fines and Double Jeopardy Clauses and evoked by the latter "civil penalty" approach. Next, Part III argues for specific statutory adoption of the civil penalty approach and discusses the practice and policy issues that that approach presents. Finally, an Appendix …

Introduction, The Congress, The Courts And Computer Based Communications Networks: Answering Questions About Access And Content Control, Symposium, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.

From A Reporter's Perspective: A Proposed Agenda, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Impact Of The Cipollone Case On Federal Preemption Law, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court handed down an opinion in the Cipollone case on June 24, 1992. Justice Stevens, writing for the majority, concluded that the Federal Cigarette Labeling and Advertising Act preempted all tort claims against cigarette manufacturers based on failure to provide adequate warnings about the health risks of smoking. However, the Court also held that claims based on breach of express warranty, misrepresentation, and conspiracy were not preempted by the Act. Thus, although Cipollone represents a clear victory for tobacco companies, it also leaves the door open for future litigation. The first part of this Article will …

Federal Preemption Of State Products Liability Doctrines, Richard C. Ausness

Law Faculty Scholarly Articles

Federal agencies now regulate the manufacture, design, and labeling of hundreds of consumer products. For example, the Consumer Product Safety Commission promulgates "consumer product safety standards" for a number of consumer products. Likewise, the National Traffic and Motor Vehicle Safety Act of 1966 authorizes the National Highway Transportation Safety Administration to develop safety standards for automobiles and other motor vehicles. Additionally, the Food and Drug Administration (FDA) exercises extensive control over prescription drugs, biologics, medical devices, and over-the-counter drugs. The FDA also regulates food labeling.6 Finally, Congress has established statutory labeling requirements for cigarettes, smokeless tobacco products, and alcoholic beverages. …

Will A New Restatement Help Settle Troubled Waters: Reflections, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky

Scholarly Works

No abstract provided.

Innocents And Experience: The Disturbing Record Of Legal Reform In Montana, Greg Munro

Faculty Journal Articles & Other Writings

This article provides a summary of the legacy of "tort reform" in Montana in the areas of medical negligence, workers' compensation, immunities, damages, and a miscellaneous grouping that includes product liability, joint and several liability, wrongful discharge, insurance consumers, arbitration, and collateral-source rule.

The Neumeier-Schultz Rules: How Logical A "Next Stage In The Evolution Of The Law" After Babcock?, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Products Liability Cases On Appeal: An Empirical Study, Theodore Eisenberg, James A. Henderson Jr.

Cornell Law Faculty Publications

This article analyzes 1,100 opinions to find the determinants of products liability cases on appeal in state and federal courts. The strongest predictor of plaintiff success on appeal is whether the plaintiff prevailed in a jury trial. Other important factors are the defendant's status as manufacturer, wholesaler, or successor corporation; the plaintiffs degree of injury; and whether the case involved a failure-to-warn claim. The existence of a comparative negligence regime increases the tendency of appellate courts to affirm lower courts. These results allow rejection of a simple model in which pre- and posttrial settlement behavior filters out cases in which …

Will A New Restatement Help Settle Troubled Waters: Reflections, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Interest Analysis, State Sovereignty, And Federally-Mandated Choice Of Law In "Mass Tort" Cases, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Survey Of Illinois Law: Tort Developments, 17 S. Ill. U. L.J. 961 (1993), Kenneth Kandaras

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Clinton Administration And Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Governor Bill Clinton was inaugurated as the President of the United States last month. The federal courts are one area of critical significance to the nation in which the Chief Executive can play a major role in important substantive and procedural policymaking. Moreover, President Clinton, as a former law professor and Arkansas Attorney General, may be particularly interested in issues involving the federal courts.

The Clinton Administration will have to address numerous issues that implicate the federal courts throughout its tenure, but especially during the first year in office. Some of these questions, such as the abolition of diversity jurisdiction, …

The Anatomy Of Emotional Distress Claims In Minnesota, Michael K. Steenson

Faculty Scholarship

This Article examines the right to recover damages for emotional distress in Minnesota, with emphasis on claims for negligent and intentional infliction of emotional distress. The recovery of damages for emotional distress is subject to varying and perhaps seemingly inconsistent standards. After a brief history of emotional distress law, the Article will discuss claims for emotional distress based on negligence, intentional torts, and statutory violations. These areas are examined in detail to determine the standards for the recovery of emotional harm in Minnesota and to evaluate whether the standards are applied consistently. The Article also examines the right to recover …

The Differing Treatment Of Efficiency And Competition In Antitrust And Tortious Interference Law, Gary Myers

Faculty Publications

During the last twenty years, there has been a revolution in antitrust law. As a result of extensive scholarly and judicial analysis, a new learning has developed concerning the content, role, and effect of antitrust doctrines. This trend has focused primarily on the primacy of consumer welfare and economic efficiency. Most commentators now assume that these two interrelated goals are the principal, if not exclusive, concerns of antitrust law. The United States Supreme Court has responded to these new approaches by modifying or altering antitrust law in a long series of cases. Similarly, the new learning has affected the focus …

Rethinking Wrongful Life: Bridging The Boundary Between Tort And Family Law, Philip G. Peters Jr.

Faculty Publications

Traditional tort law embraces an unduly narrow notion of corrective justice that fails to resolve wrongful life disputes satisfactorily. The unique circumstances associated with the creation of a new life bring into play another, broader paradigm of responsibility: one that resembles family law more than tort. From this perspective, children whose birth can be attributed to tortious conduct have a strong moral claim for supplemental child support whenever a tortfeasor's interference with the pro- creative rights of the parents foreseeably results in the birth of a child and that child's parents cannot provide adequate support. In such an instance, the …

The Moral Foundations Of Products Liability Law: Toward First Principles, David G. Owen

Faculty Publications

No abstract provided.

Strict Products Liability Under Restatement (Second) Of Torts § 402a: "Don't Throw Out The Baby With The Bathwater", M. Stuart Madden

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

A New Look At An Old Conundrum: The Determinative Test For The Hybrid Sales/Service Transaction Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

Historically, the concept of strict tort liability was confined to two areas: injuries resulting from dangerous activities, and harm inflicted by wild and/or dangerous animals. However, in 1963, the California Supreme Court held in Greenman v. Yuba Power Products that the theory of strict liability in tort also included products. Then, in 1965, The Restatement (Second) of Torts adopted Section 402A and endorsed the theory of Greenman that strict liability was available as a distinct cause of action in litigation involving injuries caused by defective products.

Though there was some initial confusion associated with the application of some of the …

Tort Claims In Counterinsurgency Operations: The British Experience In Ireland, 1919–21, Michael F. Noone Jr.

Scholarly Articles

No abstract provided.

Cigarette Warnings: The Perils Of The Cipollone Decision, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

In Cipollone v Liggett Group, Inc., a splintered Court concluded that cigarette smokers who are injured through their consumption of tobacco may bring some state law tort claims against the manufacturers of the cigarettes. Other claims, however, are preempted by federal legislation requiring cigarette packages and advertising to bear warning labels, the specific wording of which is dictated by statute. After a detailed examina- tion of the economics of hazard warning systems, Professor Viscusi argues that the most important economic issues in the Cipollone case were cor- rectly resolved in Justice Stevens'plurality opinion, which contained little overt economic reasoning. The …

World-Wide Volkswagen V. Woodson-The Rest Of The Story, Charles Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Product Liability, Research And Development, And Innovation, W. Kip Viscusi, Michael J. Moore

Vanderbilt Law School Faculty Publications

Product liability ideally should promote efficient levels of product safety, but misdirected liability efforts may depress beneficial innovations. This paper examines these competing effects of liability costs on product R & D intensity and new product introductions by manufacturing firms. At low to moderate levels of expected liability costs, there is a positive effect of liability costs on product innovation. At very high levels of liability costs, the effect is negative. At the sample mean, liability costs increase R & D intensity by 15 percent. The greater linkage of these effects to product R & D rather than process R …

Products Liability Tort Reform: Why Virginia Should Adopt The Henderson Twerski Proposed Revision Of Section 402a, Restatement (Second) Of Torts, Peter N. Swisher

Law Faculty Publications

The purpose of this Article is fourfold: first, to illustrate that there is currently a newer, more balanced consensus view in American products liability law today; second, to demonstrate that this current, realistically balanced, consensus in American products liability law is persuasively codified in a proposed revision to section 402A, Restatement (Second) of Torts, by Professors James Henderson and Aaron Twerski; third, to compare and contrast current Virginia products liability law with the Henderson- Twerski proposed revision of section 402A; fourth, to propose new legislation in Virginia that would incorporate the Henderson-Twerski proposal, and would realistically reform existing Virginia products …