Law Commons^™

Due Process And Punitive Damages: An Economic Approach, Keith N. Hylton

Faculty Scholarship

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower …

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

Omniveillance, Privacy In Public, And The Right To Your Digital Identity: A Tort For Recording And Disseminating An Individual’S Image Over The Internet, Josh Blackman

Josh Blackman

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The World Bank's Inspection Panel: Promoting True Accountability Through Arbitration, Enrique Carrasco

Enrique R Carrasco

In September 1993, the World Bank created the Inspection Panel. At the time, it was hailed as an unprecedented effort to increase the Bank’s accountability. Prior to the establishment of the Panel, the Bank had engaged in a number of projects that devastated local populations and caused significant environmental damage. After unrelenting pressure from environmental and human rights non-governmental organizations (“NGOs”), the World Bank established the Inspection Panel with hopes of bringing transparency to the Bank’s project lending. Generally, the Panel is charged with investigating complaints filed by parties in borrower countries who believe that the Bank is violating its …

Hungry For Victory: Why High School Wrestling Coaches Should Not Be Held Liable For Injuries Resulting From Weight Loss, Alexander J. Pal

Alex J Pal

The purpose of this Note is to advocate for the universal application of primary assumption of the risk as a defense to a negligence cause of action involving interscholastic wrestling. Primary assumption of the risk is a defense which infers that a participant in a particular activity knew or should have known of a risk inherent in that activity. If a court deems a plaintiff to have assumed such a risk, they will be barred from recovering in a lawsuit. Jurisdictions are not in agreement in applying this doctrine in a sports setting.

Application of the doctrine in the sport …

Why Pedestrian-Friendly Street Design Is Not Negligent, Michael E. Lewyn

Michael E Lewyn

In recent decades, American state and local highway officials have built wide streets and roads designed primarily to accommodate high-speed automobile traffic. However, such high-speed streets are more dangerous for pedestrians and bicyclists than streets with slower traffic, and thus fail to adequately accommodate nondrivers. Government officials design streets for high-speed traffic partially because of their fear of tort liability. An influential street engineering manual, the American Association of State Highway and Transportation Officials’ “Green Book”, has generally favored the construction of such high-speed streets, and transportation planners fear that if they fail to follow the Green Book’s recommendations, they …

The Use Of Litigation Screenings, Lester Brickman

Lester Brickman

No abstract provided.

Petition Without Prejudice: Against The Fraud Exception From The Toxic Tort Perspective, Jim M. Sabovich

Jim M Sabovich Jr.

While often thought of as a chemical sibling of the personal injury family, the modern toxic tort often implicates the Constitutional right to petition. Not with its core allegation that some misconduct by defendants caused plaintiffs to be exposed to a substance which then brought on some ailment, but with the marry of this to claims that defendant knew it was contaminating the air or the groundwater, but misrepresented that information to regulators, or allegations that it downplayed the danger of its substance to lawmakers resulting in less stringent regulation. Both types of allegations seek to impose tort liability for …

Chilling Effects: The Communications Decency Act And The Online Marketplace Of Ideas, Anthony M. Ciolli

Anthony M Ciolli

The popularization of the Internet has ensured that, for the first time in human history, speech is in a position where it can become truly free. In 1996 Congress, hoping to preserve and promote a vibrant and competitive free marketplace of ideas on the Internet, passed Section 230 of the Communications Decency Act, a controversial statute that grants the owners of private online forums and other Internet intermediaries unprecedented immunity from liability for defamation and related torts committed by third party users. Since then, a fierce debate has raged over how to strike the proper balance between the seemingly competing …

In The Arena: The Texas Supreme Court’S Steady Rein On Railroads And Big Business, 1880 – 1900, William J. Chriss

William J Chriss

Like the pre-Lochner United States Supreme Court, the late nineteenth century Texas Supreme Court did not see its role as one of protecting big business from government regulation. Texas courts did not, as a rule, use judicial activism to defend laissez-faire economics. Rather, like many other courts, state and federal, the Texas Supreme Court allowed the other two branches of government a relatively free hand in regulating business in general and railroads in particular. This is not to say that the Texas court was anemic or passive. In fact, the Texas Supreme Court went well beyond merely deferring to legislative …

Tort Made For Hire – Reconsidering The Ccnv Case, Assaf Jacob

Assaf Jacob

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on Tort Law principles, is clearly anomalous in the context of Copyright Law, which differs significantly from Tort Law …

Tort Made For Hire – Reconsidering The Ccnv Case, Assaf Jacob

Assaf Jacob

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on Tort Law principles, is clearly anomalous in the context of Copyright Law, which differs significantly from Tort Law …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline Lipton

Jacqueline D Lipton

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Regulation With Placebo Effects, Anup Malani

Anup Malani

There is a growing body of empirical evidence supporting the existence of placebo effects in medical contexts and is suggestive of nontrivial placebo effects in non-medical contexts. This paper reviews the literature on placebo effects, examines the implications for four fields of law (drug approval, informed consent law, consumer protection law, and torts) and suggests future areas for research on placebo effects. Specifically, it make the case for altering the drug approval process to account for, if not credit, placebo effects. It suggests allowing evidence of placebo effects as a defense in cases alleging violations of informed consent or false …

The Certainty Principle As Justification For The Group Defamation Rule, Nat S. Stern

Nat S Stern

Under the group defamation rule, a member of a defamed group may not recover unless the defamatory statement can be reasonably understood to refer specifically to that individual. The predominant approach in making the determination of whether a member has an actionable claim places heavy emphasis on the distinction between large and small groups. While that distinction is defensible, the imprecise underpinnings of the approach has left it vulnerable to criticism and to periodic proposals for other standards that do not serve the rule’s purposes as well. This article offers the certainty principle as a central justification of the prevailing …

Neither Saints Nor Devils: A Behavioral Analysis Of Attorneys' Contingent Fees, Eyal Zamir, Ilana Ritov

Eyal Zamir

The market for legal services, and particularly lawyers’ Contingent Fee (CF) arrangements, have been extensively studied from legal, economic and sociological standpoints, but curiously not from a behavioral perspective. Building on Kahneman and Tversky’s Prospect Theory, this paper presents a series of experiments designed to reveal people’s preferences regarding attorneys’ fees and their perceived fairness.

Contrary to common economic wisdom, we demonstrate that loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients’ preferences for CF. Facing a choice between a mixed “gamble” and a pure positive one, plaintiffs prefer …

When Theory Met Practice: Teaching Tort Law From A Practical Perspective, Prentice L. White

Prentice L White

WHEN THEORY MET PRACTICE: TEACHING TORT LAW FROM A PRACTICAL PERSPECTIVE ABSTRACT When I initially entered the world of academia, I did so with the intention of not only teaching my students the black letter law, but I also envision an opportunity to share with them my experiences in the practice. My philosophy has always been “How can you teach what you have not learned.” Learning is an on-going process and it is not limited to the classroom—especially in professional school. That’s why it was so important for me to share a practical experience with my students as much as …

Responsibility And Proximate Cause, Peter M. Gerhart

Peter M. Gerhart

This article solves the many puzzles of proximate cause by articulating a normative theory that explains why a person who acts unreasonably and causes harm is sometimes not responsible in negligence for that harm. The article first articulates a methodology of justification and explains how our understanding of proximate cause has lacked a justificational basis. The article then develops a theory of responsibility that explains proximate cause cases. Rather than seeing proximate cause as a device to cut off liability, this theory sees proximate cause as determining whether unreasonable conduct is the source of an obligation with respect to particular …

Tortious Interference With Expectancy Of Inheritance Or Gift--Suggestions For Resort To The Tort, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

This article examines the various factual circumstances in which a tort recovery for interference with the expectancy of inheritance or gift might be available, either as the only possible remedy for the disappointed expectant person or as an alternative to a remedy at equity or at probate, and determines, in regard to each circumstance, whether a cause of action in tort should be available. This tort has received recent attention, especially in light of the substantial awards, both compensatory and punitive, in a California Bankruptcy Court, 253 B.R. 550 (Bankr. C.D. Cal 2000), and, on appeal, in the U,S. District …

Pretexting Scandal At Hewlett-Packard, Debra J. Reed

Debra J Reed

In 2006 Hewlett-Packard Corporation, (H.P.) and Chairwoman Patricia Dunn committed the tort of intrusion and violated the right to privacy afforded to citizens by California’s Constitution when Patricia C. Dunn ordered the requisition of the phone records of H.P. directors and members of the media. H.P.’s agents masqueraded as the directors and journalists to the phone company in order to induce the phone company to hand over the private phone records. This practice, referred to as pretexting, became a criminal offense in 2007.

Someone in Hewlett-Packard’s, (H.P.) boardroom was covertly speaking to the media about confidential board business. As early …

If You Choose To Go Outside Without An Umbrella While It Is Raining, Expect To Get Wet: Why Insurance Indemnification Of The Tortious Transmission Of Sexually Transmitted Diseases Is Contrary To Public Policy, Megan L. Johnson

Megan L Johnson

As last reported by the Centers for Disease Control and Prevention in 2005, at least nineteen million people will contract a sexually transmitted disease (STD) annually, costing the United States $1.4 billion a year. Many victims will contract a disease from someone who knew or should have known that he or she was a disease-carrier, and thus the transmission could have been avoided with proper notification and protection or abstinence.

The STD epidemic has led to an increase in litigation over STD transmission and insurance indemnification of the damages. Insured tortfeasors who transmit STDs turn to their insurance policies for …

Peterson V. Balach, Obvious Dangers, And The Duty Of Possessors Of Land In Minnesota, Michael K. Steenson

Faculty Scholarship

The purpose of this article is to analyze Minnesota landowners law, with particular emphasis on the impact of Peterson v. Balach. Following a short history of Minnesota law governing possessors’ duties, including a discussion of pre-Peterson v. Balach and Adee v. Evanson cases, the article considers the question of why the courts, post-Peterson v. Balach/Adee v. Evanson, regularly return to pre-Peterson forms to resolve possessor liability issues, particularly in cases involving obvious dangers, and whether the phenomenon is a result of a wrong turn or is a reflection of a conscious policy choice intended to effectively repudiate the progressive position …

Democracy And Tort Law In America: The Counter-Revolution, Christopher J. Roederer

West Virginia Law Review

No abstract provided.

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

All Faculty Scholarship

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

Scuba Diving Buddies: Rights, Obligations, And Liabilities, Phyllis G. Coleman

Faculty Scholarship

A common misconception is that scuba diving is dangerous; the reality is that divers are more likely to be hurt in their cars driving to the dive site than in an underwater accident. Arguably one reason the sport is so safe is the widespread, and often mandatory, use of the buddy system.

A buddy expects his partner to perform a variety of tasks, which include assisting during an emergency. However, a glaring omission in the legal literature is the important issue of what happens when a diver's failure to act results in his buddy's death or serious injuries. This article …

The Liberalizing Effects Of Tort: How Corporate Complicity Liability Under The Alien Tort Statute Advances Constructive Engagement , Richard Herz

Richard Herz

Does allowing U.S. corporations to evade liability for abetting human rights abuses such as genocide or torture ultimately promote democratic reform in countries with repressive regimes? In suits recently filed under the Alien Tort Statute (ATS), the Bush Administration has claimed that it does. It has filed briefs opposing liability, asserting that liability would limit the U.S. government’s ability to adopt a “constructive engagement” policy of using U.S. private sector investment to promote democracy and human rights. This Article challenges the Administration’s position.

The Administration’s argument has inserted the long-running policy debate regarding the efficacy of “constructive engagement” into the …

Strict Liability And The Liberal-Justice Theory Of Torts, Alan Calnan

Alan Calnan

Abstract Tort scholars disagree about the relative priority of fault and strict liability. Economists prefer the clearer and more efficient theory of strict liability to the vaguer and more complicated concept of fault. Moralists, by contrast, prefer the deep moral or deontological idea of fault to the more sterile rule of strict liability. Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that tort law should interfere with free market transactions only rarely, and even then, only with clear rules that minimize accident costs. Not surprisingly, moralists rely …

Operationalizing Deterrence: Claims Management (In Hospitals, A Large Retailer, And Jails And Prisons), Margo Schlanger

Margo Schlanger

No abstract provided.

Climate Change And Carbon Sequestration: Assessing A Liability Regime For Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

As the nation struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is carbon capture and sequestration (“CCS”), which consists of capturing carbon dioxide emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention …