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Full-Text Articles in Law

Secrets On The Texas-Mexico Border: Leiva Et Al. V. Ranch RescuE And Rodriguez Et Al. V. Ranch Rescue And The Right Of Undocumented Aliens To Bring Suit, Brooke H. Russ Mar 3004

Secrets On The Texas-Mexico Border: Leiva Et Al. V. Ranch RescuE And Rodriguez Et Al. V. Ranch Rescue And The Right Of Undocumented Aliens To Bring Suit, Brooke H. Russ

University of Miami Inter-American Law Review

No abstract provided.


Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins Oct 2017

Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins

Maine Law Review

The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in ...


When The Feds Have Taken The Field: Federal Field Preemption Of Claims Against Manufacturers Whose Medical Devices Have Received Premarket Approval By The Fda, Charles Warren Sep 2017

When The Feds Have Taken The Field: Federal Field Preemption Of Claims Against Manufacturers Whose Medical Devices Have Received Premarket Approval By The Fda, Charles Warren

Oklahoma Journal of Law and Technology

No abstract provided.


Mass Torts—Maturation Of Law And Practice, Paul D. Rheingold Sep 2017

Mass Torts—Maturation Of Law And Practice, Paul D. Rheingold

Pace Law Review

Mass tort litigation has been with us for about fifty years. This is dating the start from the MER/29 litigation in 1964. This field of law and practice has grown year after year, and it shows no sign of abating. At the same time, it can be said that this area of law and procedure has reached a mature stage; the practice is fairly standardized and earlier experiments have either become the model or have been abandoned.

The term “mass tort litigation” (MTL), as used in this article, confines itself to product liability personal injury cases involving similar injuries ...


Concurrent Liability In Tort And Contract, Yihan Goh, Man Yip Aug 2017

Concurrent Liability In Tort And Contract, Yihan Goh, Man Yip

Research Collection School Of Law

This articleexamines the understanding of concurrent liability in tort and contract,through a detailed analysis of the interplay, intersection and independence of thelaw of torts and the law of contract. The central argument that will beadvanced is that the present understanding of the ‘incident rules’ inconcurrent liability in tort and contract, such as the applicable rules ofremoteness or limitation, is inconsistent with the rationale for concurrencelaid down in Henderson v MerrettSyndicates Ltd. Rather than analyse concurrence as a single situation, thatis, conceiving it as a contest between rules of tort or contract rules, we arguethat the better way forward is ...


Delucchi V. Songer, 133 Nev. Adv. Op. 42 (June 29, 2017), Krystina Butchart Jun 2017

Delucchi V. Songer, 133 Nev. Adv. Op. 42 (June 29, 2017), Krystina Butchart

Nevada Supreme Court Summaries

No abstract provided.


Pizarro-Ortega V. Cervantes-Lopez, 133 Nev. Adv. Op. 37 (June 22, 2017), Andrew Hart Jun 2017

Pizarro-Ortega V. Cervantes-Lopez, 133 Nev. Adv. Op. 37 (June 22, 2017), Andrew Hart

Nevada Supreme Court Summaries

The court held that future medical expenses are a category of damages to which NRCP 16.1(a)(1)(C)’s computation requirement applies, and that a plaintiff is not absolved of complying with NRCP 16.1(a)(1)(C) simply because the plaintiff’s treating physician has indicated in medical records that future medical care is necessary.


Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon May 2017

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

In a recent article, Patrick Goold argues for five sub-torts to be recognized in copyright, including inter alia protections for privacy, reputation, and 'creative control.' See Patrick R. Goold, Unbundling the 'Tort' of Copyright Infringement, 102 VA. L. REV. 1833 (2016). He suggests that standards for both infringement and fair use might be profitably tailored to each sub-tort. In this Reply I explore Goold's arguments. I address issues such as: how copyright cases implicitly define cause-in-fact; potential relevance of the plagiarism/copyright distinction; and what implications (if any) for interpreting federal copyright law might flow from the statutory changes ...


“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk May 2017

“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk

Catherine Fisk

A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated ...


‘Relational Privacy’ & Tort, Stuart Hargreaves Apr 2017

‘Relational Privacy’ & Tort, Stuart Hargreaves

William & Mary Journal of Women and the Law

This Article argues that the current interpretation given to the four-part invasion of privacy framework by the courts is inadequate in the face of modern privacy challenges. In particular, it struggles with claims for privacy over public matters or other ‘non-secret’ matters that an individual may nonetheless have some ongoing privacy interest in. This Article suggests that this struggle is the result of the courts adopting a fixed, binary approach to privacy, which is itself grounded in a liberal-individualistic account of autonomy. While this may be a natural response to concerns about limiting the scope of the tort, it is ...


Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager Mar 2017

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Daniel B. Yeager

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships ...


Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens Feb 2017

Reason And Reasonableness: The Necessary Diversity Of The Common Law, Frederic G. Sourgens

Maine Law Review

This Article addresses the central concept of “reasonableness” in the common law and constitutional jurisprudence. On the basis of three examples, the common law of torts, the common law of contracts, and Fourth Amendment jurisprudence, the Article notes that different areas of the law follow fundamentally inconsistent utilitarian, pragmatic, and formalist reasonableness paradigms. The significance of this diversity of reasonableness paradigms remains largely under-theorized. This Article submits that the diversity of reasonableness paradigms is a necessary feature of the common law. It theorizes that the utilitarian, pragmatic and formalistic paradigms are structural elements driving the common law norm-generation process. This ...


12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards Jan 2017

12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards

Marquette Law Review

The Supreme Court has found in favor of preemption in tort liability cases involving matters of heavy federal regulation in which Congress has delegated implementation of a statute involving technical subject matter to the agency. It has not been the case, however, in matters concerning the labeling of prescription drugs, despite the fact that the FDA has exclusively regulated drug labeling for more than a century. In fact, the current state of affairs now allows a jury to substitute the judgment of the FDA in approving a label on a name-brand drug for their own in state law failure to ...


My Grandmother Was Mrs. Palsgraf: Ways To Rethink Legal Education To Help Students Become Lawyers, Rather Than Just Thinking Like Them, Ian Gallacher Jan 2017

My Grandmother Was Mrs. Palsgraf: Ways To Rethink Legal Education To Help Students Become Lawyers, Rather Than Just Thinking Like Them, Ian Gallacher

College of Law Faculty Scholarship

This article uses my family history, and its striking similarities to the Palsgraf case, as a starting point for a consideration of the ways law schools teach the law to their students, the problems that approach appears to cause, and some possible alternative, and potentially healthier, approaches to legal education.

My grandmother, grandfather, mother, and uncle were all in a house that was blown-up and destroyed by a bomb during the Second World War. And while the cause of the explosion was very different to that in Palsgraf, the fact of an explosion that drastically changed the lives of those ...


Negligence And Accommodation, Avihay Dorfman Dec 2016

Negligence And Accommodation, Avihay Dorfman

Avihay Dorfman

Whereas the Restatement of Torts and leading economic and justice-based approaches to explaining the standard of reasonable care advocate symmetric measurement of reasonable care across the defendant/plaintiff distinction, this article demonstrates that, in fact, the law applies this standard asymmetrically. Defendants are expected to discharge an objectively fixed amount of care, whereas plaintiffs are generally assessed using a subjective measurement of reasonable care. Normatively, I argue that an asymmetric assessment of care, because it combines an unfavorable assessment of defendant’s negligence with a favorable assessment of plaintiff’s negligence, means that the victim gets to fix the terms ...


It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen Dec 2016

It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen

Jean M. Eggen

Latent toxic illness typically does not become manifest until months, years, or decades after a person’s exposure to a toxic substance. The timing, extent, and characteristics of its physical manifestation are unpredictable and vary among individuals. Similarly, property damages associated with environmental contamination may not be detected for years, and the diseases caused by the contamination could take even longer to manifest. Accordingly, toxic harms present unique challenges for plaintiffs confronted with time limitations on their actions. Statutes of repose operate in conjunction with statutes of limitations to provide defendants with maximum protection from stale claims. Unlike statutes of ...


Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen Dec 2016

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply ...


Essay: Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron D. Twerski, Nina Farber Dec 2016

Essay: Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron D. Twerski, Nina Farber

Brooklyn Law Review

This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative responsibility principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This essay focuses on well-known cases and situations where both parties likely contributed to ...


The Economic Loss Rule, Ward Farnsworth Nov 2016

The Economic Loss Rule, Ward Farnsworth

Valparaiso University Law Review

No abstract provided.


Private Law In The Gaps, Jeffrey A. Pojanowski Oct 2016

Private Law In The Gaps, Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a ...


A Process Theory Of Torts, Jay Tidmarsh Oct 2016

A Process Theory Of Torts, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.


Trending @ Rwu Law: Tom Shaffer's Post: The 'Master Of Studies In Law' Takes Off!: September 27, 2016, Tom Shaffer Sep 2016

Trending @ Rwu Law: Tom Shaffer's Post: The 'Master Of Studies In Law' Takes Off!: September 27, 2016, Tom Shaffer

Law School Blogs

No abstract provided.


Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins Sep 2016

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Washington and Lee Law Review Online

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors ...


Resolving Dilemmas In Canadian Class Actions By Reconsidering Private Law Principles, Stephanie Sugar Jul 2016

Resolving Dilemmas In Canadian Class Actions By Reconsidering Private Law Principles, Stephanie Sugar

Electronic Thesis and Dissertation Repository

Class actions cases illuminate the theoretical underpinnings of private law in a way that traditional two-party litigation does not. Many class actions deal with plaintiffs who have not suffered a large loss (or a quantifiable monetary loss at all), or the defendant has made profits that are disproportionately greater than the plaintiffs’ compensable loss (if any). Applying orthodox principles of private law and negligence to these cases results in barring plaintiffs from recovery despite their rights being violated and defendants not disgorging profits made from wrongdoing. The solution resolving these dilemmas should not be to create separate law only applicable ...


Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell Jul 2016

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s ...


Tort Law [2015], Kumaralingam Amirthalingam, Gary Kok Yew Chan Jul 2016

Tort Law [2015], Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection School Of Law

No abstract provided.


Adding Insult To Death: Why Punitive Damages Should Not Be Imposed Against A Deceased Tortfeasor's Estate In Ohio, Alec A. Beech Jun 2016

Adding Insult To Death: Why Punitive Damages Should Not Be Imposed Against A Deceased Tortfeasor's Estate In Ohio, Alec A. Beech

Akron Law Review

A majority of jurisdictions in the United States have determined, either statutorily or judicially, that punitive damages cannot be imposed against deceased tortfeasors. However, a recent Ohio appellate court held to the contrary. In Whetstone v. Binner, the Ohio Fifth District Court of Appeals adopted the minority view when it held that punitive damages could be imposed against a decedent’s estate. This Comment takes the position that Whetstone was incorrectly decided. Specifically, this Comment argues that the longstanding purposes of punitive damages are not furthered when such damages are imposed against estates and that Ohio law supports this conclusion.


Honest Victim Scripting In The Twitterverse, Francine Banner Jun 2016

Honest Victim Scripting In The Twitterverse, Francine Banner

William & Mary Journal of Women and the Law

This Article critically analyzes Tweets regarding recent allegations of interpersonal violence against celebrities in order to explore societal perceptions of, and expectations about, alleged victims. The Article concludes that Twitter may be viewed as a micro-courtroom in which victims’ veracity and perpetrators’ responses are evaluated, interrogated, and assessed. A key, feminist critique of rape law is that the determination of the perpetrator’s guilt or innocence too often hinges on an assessment of the victim’s character. This is borne out on social networking sites, where terms such as “gold digger,” “slut,” and “ho” are engaged with regularity to describe ...


Understanding Legal Redundancies, Alex Stein Mar 2016

Understanding Legal Redundancies, Alex Stein

Alex Stein

This short essay responds to John M. Golden, Redundancy: When Law Repeats Itself, 94 Texas L. Rev. 629 (2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754266. I begin the essay with evaluating Professor Golden’s pioneering account that identifies, categorizes, and explains overlapping rules and institutional practices that pervade our legal system. I commend this account for its contributions to legal theory along a number of dimensions that include common law, statutory interpretation, and economics of legal rules. I then move on to supplement this account by identifying and analyzing puzzling redundancies in evidence law and in the ...


Rish V. Simao, 132 Nev. Adv. Op. 17 (Mar. 17, 2016), Heather Caliguire Mar 2016

Rish V. Simao, 132 Nev. Adv. Op. 17 (Mar. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that the District Court wrongly excluded evidence of low-impact defense when it required a biomechanical expert testify about the nature of the accident, erroneously interpreting Hallmark v. Eldgridge Instead, Hallmark requires sufficient foundation for admission of testimony and evidence, specifically excluding a biomechanical expert’s testimony under NRS 50.275. The Court additionally held that the District Court erred when it ultimately struck the defendant’s answer for violations of the pretrial order precluding defendant from raising a minor or low impact defense.