Law Commons^™

Duking It Out: Beating The Complete Preemption Of Erisa Under Dukes V. U.S. Healthcare, Inc., Natalie Zellner

Georgia State University Law Review

No abstract provided.

Identifying And Valuing The Injury In Lost Chance Cases, Todd S. Aagaard

Michigan Law Review

Any plaintiff seeking to recover in tort must prove that the defendant has breached the duty of care. Even after the plaintiff has established the defendant's breach of duty, however, issues of causation and damages remain. These two issues are frequently vexing, both conceptually and in terms of evidentiary demonstration. For example, if a plaintiff proves that a defendant acted negligently, it still may be unclear whether the plaintiff would have been injured even ip the absence of the defendant's negligence. Similarly, in assessing damages, factfinders often :find it difficult to attach a monetary value to a plaintiff's nonpecuniary losses …

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, …

Products Liability Law Restated, David G. Owen

Faculty Publications

No abstract provided.

What Should The Law Say About Disclosure Of Genetic Information To Relatives?, Ellen Wright Clayton

Journal of Health Care Law and Policy

No abstract provided.

Legal Malpractice And The Structure Of Negligence Law, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Torts: Kraszewski V. Baptist Medical Center Of Oklahoma, Inc.--The Oklahoma Supreme Court Recognizes The Tort Of Intentional Infliction Of Severe Emotional Distress In A New Context, Matthew B. Free

Oklahoma Law Review

No abstract provided.

Sports Torts In Wisconsin, Jay A. Urban

Marquette Sports Law Review

No abstract provided.

Rights, Wrongs, And Recourse In The Law Of Torts, Benjamin C. Zipursky

Vanderbilt Law Review

Cardozo's opinion in Palsgraf v. Long Island Railroad Co.' hinges on a stark assertion about rights and wrongs: A plaintiff has no right of action unless she can show "'a wrong' to herself; i.e., a violation of her own right." Cardozo himself made this principle the core of his analysis, yet scholars typically regard it as impenetrable, circular, vacuous, or, as Posner put it, "eloquent bluff." Small wonder, then, that readers typically turn to "reasonable foreseeability" as the essence of the case. Leading scholars treat Palsgraf as a proximate cause case, despite Cardozo's pronouncement that "W[the law of causation, remote …

The Government Contractor Defense: Breaking The Boyle Barrier, Charles E. Cantú, Randy W. Young

Faculty Articles

The government contract defense, known as the Boyle defense, shields those successfully invoking it from liability for injuries caused by defective products they manufactured. The contract specification defense is afforded to both private and government contractors when they follow the directions and specifications of a third party, usually the employer.

The first element of the Boyle defense requires that the government approve reasonably precise specifications for the equipment’s design. The contractor must show that a team-like effort existed in all communications between the contractor and the government, with the government providing general specifications and approval at various stages of project …

Juries Under Siege., Phil Hardberger

St. Mary's Law Journal

Beginning in the late 1980s, the Texas Supreme Court saw a slew of conservative judges elected to the bench. With this new Court, previous expansions of the law were stopped. Jury verdicts became highly suspect and were frequently overturned for a variety of reasons. Damages too did not go unnoticed. Juries’ assessments were wiped out by increasingly harsher standards. The ripple effect of the Court’s conservative philosophy on the judicial process was substantial. Jury verdicts, few as they may be, are not subject to harsh scrutiny by conscientious appellate judges sworn to follow the Texas Supreme Court’s precedent. And the …

Finding The Still Small Voice: The Liability Of Bankruptcy Trustees And The Work Of The National Bankruptcy Review Commission, Daniel Bogart

Daniel B. Bogart

This article examines section 3.3.2 of the Report of the National Bankruptcy Review Commission. That section proposed altering the Bankruptcy Code to clarify the law governing the liability and fiduciary obligations of trustees in bankruptcy. The article was prepared in connection with a symposium evaluating the Commission's Report held at Dickinson Law School. The Commission issued its Report on October 20, 1997, following many months of controversy, heated hearings and significant public debate. The article argues that section 3.3.2 represents a failure of the drafter to understand and delineate the two basic doctrines of fiduciary law and derived judicial immunity. …