Law Commons^™

Discovering The Boundaries: Federal Preemption Of Pharmaceutical Labeling Product Liability Actions, Mary J. Davis

ExpressO

Federally approved prescription drug labeling has not been considered conclusive on the reasonableness or adequacy of the label for assessing tort liability on the manufacturer because federal regulations in this field set a minimum standard rather than an optimal one. That fundamental statement of black-letter tort law is under attack. The Food and Drug Administration (FDA) has promulgated a regulation which revises the format for prescription drug labeling, and, in the process, has taken the position that the regulation displaces, or preempts, state products liability laws that seek to assess liability on the manufacturer for a label’s warning adequacy. In …

Myth, Folklore And Ancient Justice, Stuart Madden

ExpressO

In primitive and civilized cultures alike, myth has served as a foundational component of social structure and societal cultural self-image. For peoples with limitation on their skills of scientific inquiry and/or detached social observation, myth has served purposes ranging from explanation of the natural world to early visions of civil justice and a moral ethos. Such application of myth has necessarily and simultaneously provided adherents with the means of rationalizing the caprice and harshness of the natural world, as well as giving a means of accepting, even a fatalism, concerning injustice.

In general terms, myths and mythic figures have provided …

Believing In Products Liability: Reflections On Daubert, Doctrinal Evolution, And David Owen's "Products Liability Law", Richard L. Cupp

ExpressO

No abstract provided.

Reverse Bifurcation, Dru Stevenson

ExpressO

Reverse bifurcation is a trial procedure in which the jury determines damages first, before determining liability. The liability phase of the trial rarely occurs, because the parties usually settle once they know the value of the case. This procedure is already being used in thousands of cases – nearly all the asbestos and Fen-phen cases – but this is the first academic article devoted to the subject. This article explains the history of the procedure and analyzes why it encourages settlements, simplifies jury instructions, and produces better outcomes for the parties.

Repressed Memory Evidence In Civil Sexual Abuse Cases, Lindsay R. Garrett

ExpressO

This article discusses the admissibility of repressed memory evidence in sexual abuse cases. It postures that current treatment of such evidence exemplifies the continued lack of understanding society has of how harshly sexual abuse impacts victims. Analysis focuses on whether discovery rules should toll statutes of limitations, whether or not “discovery” has occurred, whether or not courts should admit repressed memory evidence, and, if so, the applicable standard of proof needed to prove the abuse. These issues require careful scrutiny of a variety of competing concerns. Proponents of the use of repressed memory evidence focus on the need for victims …

The Overlapping Magisteria Of Law And Science: When Litigation And Science Collide, William G. Childs

ExpressO

The Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals transformed courts’ evaluation of expert testimony. Many courts, applying Daubert, focus extensively on whether the purported expert’s methodology has been published in a peer-reviewed journal.

This focus on peer review results in two unintended consequences that have triggered criticism: litigation-driven scholarship and litigants taking discovery into the peer review process. Critics contend that litigation-driven scholarship is irredeemably biased and that peer review discovery is too often an effort to intimidate scholars from speaking on subjects of public concern.

In this Article, I explore these phenomena and the criticisms of …

When All Else Fails: Regulating Risky Products Through Tort Litigation, Wendy E. Wagner

ExpressO

It is the prevailing wisdom among both the legal academy and the general public that the regulatory system is better able to ensure the safety of risky products than the tort system. In this article I argue that this is not always the case. Contrary to sharp criticisms of “regulation by litigation” propounded by leading academics such as Richard Epstein, Richard Reich, and Peter Shuck, tort litigation is sometimes the only way to encourage product safety, at least in settings where manufacturers conceal key information needed to evaluate product safety. Without this litigation, we might still be using products that …

Sex Torts, D A. Pollard

ExpressO

America has a serious sexual problem. The sexual practices of a small percentage of Americans has created an unprecedented disease rate that is costing the American public about $20 billion per year. Lawsuits seeking damages for sexual disease transmission are on the rise, yet current sex tort law is mired with anti-heartbalm sentiment, is unpredictable, and is failing as a tool of deterrence, compensation, and education. This Article discusses the gravity of the sexual disease crisis, part of which is the public’s incredible ignorance about the rate of sexual disease, and tort law’s failure to do its part to help …

The Judgment-Proof Society, Stephen G. Gilles

ExpressO

This article presents the first article-length treatment of the legal rules that enable uninsured and underinsured individuals to escape tort liability by sheltering their income and assets from collection. These legal barriers to collecting tort judgments include limits on wage garnishment, homestead exemptions, retirement-plan exemptions, discharge in bankruptcy, spendthrift trusts, offshore asset protection trusts, and more. Of course, indigent persons would be judgment-proof even without these rules, because they have so few assets and so little income. Contrary to the myth of personal tort liability that is standard in torts scholarship and teaching, however, these legal rules enable huge numbers …

A Theory Of Government Damages Liability: Torts, Constitutional Torts, And Takings, Lawrence Rosenthal

ExpressO

Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As …

“It’S The [Tort System], Stupid:” Consumer Deductibles; How To More Equitably Distribute The Risks Of Medical Malpractice And Adequately Compensate Victims Without Statutory Damage Caps., Bradford Luke Ledbetter

ExpressO

No abstract provided.

Paths Of Western Law After Justinian, Stuart Madden

ExpressO

Abstract

This article relates the story of the paths of Roman law from the periods immediately before the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through the several centuries thereafter. This period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that now occupied and ruled the former Roman territories, and the recitation of such new law in the form of new law codes promulgated by three major Gothic groupings: the Lombards, the Burgundians and the Salacian Franks.

In the main, the …

Explanation, Human Nature, And Tort Theory, Jeffery L. Johnson

ExpressO

The article argues that, as they are usually stated, corrective justice theories of torts and economic efficiency theories fail to contradict one another. Thus, although the literature typically sees these approaches as doing conceptual battle, it takes a good deal of philosophical analysis to discover a theoretical framework from which to assess one perspective as superior to the other. Indeed, in many cases the corrective justice scholar appears to be talking past the economic lawyer, and vice versa.

The article then goes on to suggest that the one perspective from which we can see a genuine conflict between the explanations …

Rediscovering The Economics Of Loss Causation , Richard Kaplan, Madge Thorsen, Scott Hakala

ExpressO

Abstract This article explores the economic principles and theories underlying loss causation in the context of securities fraud litigation. It explains the difference between “investment loss” and recoverable “inflationary loss” and posits that the latter consists of the difference between inflation in stock prices caused by the fraud at the time of purchase and inflation in the price at the time of sale. It reviews scenarios in which inflationary loss due to fraud may occur and would be recognized as a matter of economic theory as well as a matter of law. It urges that Dura v. Broudo Pharmaceuticals, 125 …

Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A "Blessed Event", Michael Thomas Murtaugh

ExpressO

My article deals with the tort of wrongful birth. It is an action in negligence against a physician who failed to properly perform a sterilization or abortion procedure, after which an unplanned or unwanted child was born. My focus is on the damages that the plaintiff parents should recover from the tortfeasor based on the parents' purpose not to have the child.

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Accident Law For Egalitarians, Ronen Avraham, Issa Kohler-Hausmann

ExpressO

This paper questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens which result from informed choice from those that result from fate or fortune. We argue that the theory of corrective justice, and its institutional embodiment of tort law, is at odds with an egalitarian …

The Graeco-Roman Antecedents Of Modern Tort Law, Stuart Madden

ExpressO

It was not very long ago that Western law was formed from the rib of Graeco-Roman law, and our modern Western legal systems, civil code-based and common law alike, demonstrate that lineage, and the contributions of both societies, to surcease. While other cultural influences, including those from even more ancient sources may be identifiable, this article segregates Greco-Roman law for separate analysis for purposes of manageability. This article tracks the law of early Greece and early Rome from their respective origins in myth and legend to their comprehensive codifications. For the disparities in form and content, there are nonetheless significant …

The Accuracy And Manipulability Of Lost Profits Damages Calculations: Should The Trier Of Fact Be "Reasonably Certain"?, Jonathan T. Tomlin, David Merrell

ExpressO

The accuracy and manipulability of calculations for lost profits damages are critical determinants of the ability of harmed parties to receive just compensation in a wide range of legal cases including antitrust, fraud, false advertising, intellectual property infringement, and breach of contract. They are also important determinants of the deterrent effects of the law. Using a sample of over 5,000 U.S. firms, we show that simple damages methods are capable of being substantially inaccurate. We also show that damages methods in general are highly susceptible to manipulation. In the absence of reasonable justifications for why particular data sets and methods …

A Moving Target: Property Owners' Duty To Prevent Criminal Acts On The Premises, Deborah J. La Fetra

ExpressO

When do a landowners owe a duty to protect an individual on their property from the criminal acts of a third party? The answer to this question usually turns on whether the type of criminal act that occurred was foreseeable. Courts determine whether an act was foreseeable either by examining the totality of the circumstances or by demanding evidence of prior similar acts or some method of analysis that borrows from both approaches. This article addresses a variety of duty-foreseeability cases from around the country, paying particular attention to the three major decisions issued by the California Supreme Court in …

Causation And Attenuation In The Slavery Reparations Debate, Kaimipono D. Wenger

ExpressO

The success or failure of slavery reparations will depend on causation. Many criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that harms suffered by modern Blacks cannot be connected to slavery. This Article examines these attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated arguments.

The Article then discusses how ideas about …

A Powers-Based Approach To Idea-Submission Law, Larissa Katz

ExpressO

This paper provides a unified account of idea-submission law in terms of legal powers. It argues that the duty upon a recipient of a novel and original idea results from the exercise of a legal power that the law confers on originators in order to enable them to share their ideas selectively. This paper contributes to our understanding of idea-submission law and to private law theory more generally in a number of ways that have not been addressed in the literature. First, it systematically reveals the lack of fit between the case law and conventional legal theories for the protection …

Accident Law For Egalitarians, Ronen Avraham, Issa Kohler-Hausmann

ExpressO

The article goes back to the basics. It questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory with its roots in Aristotelian thought, called corrective justice. We critique tort law and corrective justice from a standpoint of egalitarian fairness, inspired by distributive justice philosophers such as John Rawls and Ronald Dworkin. Our argument is that the strict theoretical and institutional insulation of tort law—and the normative theory underlying it, corrective justice—from other institutions and principles of justice, namely distributive and retributive justice, gives rise to deleterious consequences in terms of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley

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No abstract provided.

Cybersecurity, Identity Theft, And The Limits Of Tort Liability, Vincent R. Johnson

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This article considers to what extent database possessors (such as credit card companies and universities) can be held liable for harm caused to data subjects (such as consumers, applicants, and alumni) when information relating to those persons is hacked or otherwise subject to improper access. Addressing common-law and statutory sources (including new legislation in 17 states) the article clearly differentiates the duty to safeguard data from the duty to notify data subjects that the security of their information has been breached. By analogy to the “medical-monitoring damages” which some states award in toxic-exposure cases, the article argues that “security-monitoring damages” …

The Difficulty In Winning Restaurant Defamation Cases, Joshua A. Cash

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No abstract provided.

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

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U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

The Cultural Evolution Of Tort Law, Stuart Madden

ExpressO

THE CULTURAL EVOLUTION OF TORT LAW* Abstract The Institutes of Justinian and other Greco-Roman recitations of tort-type delicts and remedies are recognized as root stock of modern western tort law, common law or civil code-based alike. Long before these sources, however, both ancient and primitive cultures adopted norms and customs which defined permissible individual and group conduct, and which provided for remedies ranging from money damages to banishment. Among the surveyed examples of ancient cultural responses to tort-type delicts were numerous instances in which both the civil wrong identified and the remedy provided for can be harmonized readily with modern …

Experiments On The Effects Of Fee Shifting And Discovery On The Efficient Settlement Of Tort Claims, Laura Inglis, Kevin Mccabe, Steve Rassenti, Daniel R. Simmons, Erik Tallrot

ExpressO

In this paper, we apply the methods of experimental economics pioneered by 2002 Nobel Prize winner Vernon Smith to the study of the effects of several proposed tort reform options. Specifically, we study the effects of fee shifting and discovery on the efficient use of the courts. Because it is difficult, if not impossible, to measure efficiency in the real world, we believe that controlled experiments offer valuable contributions to the debate on tort reform.

The experiments presented in this paper point to the following main conclusions: First, a symmetric cost-shifting rule, as embodied in Section 998, California Code of …