Law Commons^™

Justice And Reasonable Care In Negligence Law, Richard W. Wright

All Faculty Scholarship

The academic literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This aggregate-risk-utility test is a transparent implementation of the basic impartiality and aggregation principles of utilitarianism and the most popular (Kaldor-Hicks) interpretation of economic efficiency. Thus, the test's assumed prevalence as the criterion of reasonableness in negligence law has been highlighted by legal economists as confirmation of the utilitarian efficiency foundations of tort law, while those, including Ronald Dworkin, who think that the law, including tort law, is or should be grounded on principles of justice have sought to demonstrate that, …

Negligence In The Courts: Introduction And Commentary, In Symposium, Negligence In The Courts: The Actual Practice, Richard W. Wright

All Faculty Scholarship

This article is an introduction to and commentary on the contributions to a "Symposium on Negligence in the Courts: the Actual Practice." The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts. Patrick Kelley and Laurel Wendt's survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing …

Rethinking Tort Doctrine: Visions Of A Restatement (Fourth) Of Torts, Stephen D. Sugarman

Stephen D Sugarman

Although current work on the Restatment of Torts (Third) is bringing the state of tort law into the 21st century, I project forward into the future a possible (Fourth) that would radically simplify tort doctrine across what are still treated as quite separate fields (like product liability, medical malpractice, intentional torts). Under my vision, varying responsibiities would arise from differing social roles.

Justice And Reasonable Care In Negligence Law, Richard W. Wright

Richard W. Wright

The academic literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This aggregate-risk-utility test is a transparent implementation of the basic impartiality and aggregation principles of utilitarianism and the most popular (Kaldor-Hicks) interpretation of economic efficiency. Thus, the test's assumed prevalence as the criterion of reasonableness in negligence law has been highlighted by legal economists as confirmation of the utilitarian efficiency foundations of tort law, while those, including Ronald Dworkin, who think that the law, including tort law, is or should be grounded on principles of justice have sought to demonstrate that, …

Negligence In The Courts: Introduction And Commentary, In Symposium, Negligence In The Courts: The Actual Practice, Richard W. Wright

Richard W. Wright

This article is an introduction to and commentary on the contributions to a "Symposium on Negligence in the Courts: the Actual Practice." The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts. Patrick Kelley and Laurel Wendt's survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing …

Torts Liability Of Volunteers, Employees, Or Officers Of Nonprofit Association Conducting Or Sponsoring Sports Or Safety Program; Liability Of Association: Limiting Certified Child Passenger Safety Technicians' And Sponsoring Organizations' Liability For Providing Free Education And Assistance With Child Safety Seats, Plamen Russev

Georgia State University Law Review

The Act limits the liability of certified child passenger safety technicians and sponsoring organizations that provide information and free inspection, installation, and adjustment of child safety seats. The Act applies only when the child passenger safety technician acts in good faith, within the scope of training, and when the act or omission is not willful nor the result of wanton misconduct or gross negligence.

United States Tort Reform Wars, Stephen D. Sugarman

Stephen D Sugarman

Recent efforts to reform tort law in the U.S. are set in an international context. A broad review of the contending side in the American tort reform battle is provided.

Products At The Millennium: Traversing A Transverse Section, Marshall Shapo

South Carolina Law Review

No abstract provided.

Unmasking The Presumption In Favor Of Preemption, Mary J. Davis

Law Faculty Scholarly Articles

It is inescapable: there is a presumption in favor of preemption. Historically, the Supreme Court has said differently-that, rather, there is a presumption against preemption. There is no such presumption any longer, if, indeed, there ever really was one. Preemption doctrine has been exceedingly puzzling in the last decade, but when one recognizes that the Court's doctrine not only favors preemption, but presumes it, preemption doctrine is not a puzzle at all.

This Article argues that the Supreme Court's recent preemption decisions compel the conclusion that the Court's preemption analysis has, in effect, created a presumption in favor of preemption, …

Tort Liability For The Sale Of Non-Defective Products: An Anaylsis And Critque Of The Concept Of Negligent Marketing, Richard C. Ausness

South Carolina Law Review

No abstract provided.

Manufacturing Defect, David G. Owen

South Carolina Law Review

No abstract provided.

Remembering Gary, David G. Owen

South Carolina Law Review

No abstract provided.

Honoring A Friend And His Extraordinary Contributions To Understanding And Improving Tort Law, Robert E. Keeton

South Carolina Law Review

No abstract provided.

A Voice Of Reason: The Products Liability Scholarship Of Gary T. Schwartz, Joseph A. Page

South Carolina Law Review

No abstract provided.

The Unanticipated Ripples Of Comparative Negligence: Superseding Cause In Products Liability And Beyond, Michael D. Green

South Carolina Law Review

No abstract provided.

Proximate Cause, The Proposed Basic Principles Restatement, And Products Liability, Richard Lee Cupp Jr.

South Carolina Law Review

No abstract provided.

Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker

All Faculty Scholarship

No abstract provided.

Fraud-On-The-Fda &(And) Buckman - The Evolving Law Of Federal Preemption In Products Liability Litigation, Trent Kirk

South Carolina Law Review

No abstract provided.

Liability Of Design Professionals For Purely Economic Loss In South Carolina, Jody Bedenbaugh

South Carolina Law Review

No abstract provided.

When The “Machine That Goes ‘Ping’” Causes Harm: Default Torts Rules And Technologically-Mediated Health Care Injuries, Nicolas P. Terry

Saint Louis University Law Journal

No abstract provided.

Outlaws And Outlier Doctrines: The Serious Misconduct Bar In Tort Law, Joseph H. King Jr.

William & Mary Law Review

No abstract provided.

The Vitality Of Joint And Several Liability: Brief Amici Curiae Of American Law Professors In Support Of Respondents, Richard W. Wright

All Faculty Scholarship

Tort reform advocates hoped to use a recent case, Norfolk & Western Railway Co. v. Ayers, 123 S. Ct. 1210 (2003), as a vehicle for obtaining a Supreme Court opinion critical of the traditional doctrine of joint and several liability. Under this doctrine, each of the multiple responsible causes of an injury is potentially fully liable for that injury. The specific issue in Ayers was the availability of joint-and-several liability under the Federal Employers' Liability Act (FELA), which employs common-law tort doctrines while excluding some of the traditional defenses. The defendant claimed that the traditional common law used fractional apportionment …

International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris

Librarians' Articles

Last fall a Symposium at Chicago-Kent College of Law entitled "Constructing International Intellectual Property Law: The Role of National Courts," held on October 18-19, 2001, brought together scholars interested in a group of problems related to the relationship between harmonized rules of international civil procedure and diverse nationally-based rules of intellectual property. Subsequently, extensive discussions between the authors developed this Article into its present form.

Gender Matters: Teaching A Reasonable Woman Standard In Personal Injury Law, Margo Schlanger

Margo Schlanger

No abstract provided.

A Novel Approach To Mass Tort Class Actions: The Billion Dollar Settlement In The Sulzer Artificial Hip And Knee Litigation: A Symposium, Susan J. Becker

Law Faculty Articles and Essays

As you know our primary focus today is on the Sulzer knee and hip replacement class action. My remarks are intended to place this fascinating and innovative case in the larger context of the many issues that we all face as participants in our modern civil justice system. I am going to do this by briefly refreshing your recollection as to the procedural requirements for modern class actions, describing the ongoing controversy surrounding use of these procedures, and touching on reform efforts currently underway. I will then provide a short introduction to the Sulzer litigation and introduce each panelist.

A Reexamination Of Glanzer V. Shepard: Surveyors On The Tort- Contract Boundary, Victor P. Goldberg

Faculty Scholarship

In international commodity transactions, intermediary certifiers of quantity and quality play a crucial role. Sometimes they err, and when they do, the aggrieved party can pursue remedies against the counterparty or against the intermediary, either in contract or tort. The remedy against the intermediary has depended, at least in part, on whether the plaintiff was in privity. Even absent privity, the aggrieved party could possibly recover in tort (or perhaps as a third-party beneficiary). So held Cardozo in the leading New York case Glanzer v. Shepard. Section I of this paper reviews the Glanzer litigation, with special emphasis on how …

Product Liability: A Commentary On The Liability Of Suppliers Of Component Parts And Raw Materials, David A. Fischer

Faculty Publications

The liability of suppliers of raw materials and component parts for harm caused by the product into which the materials have been incorporated poses difficult questions. When the raw material or component part is clearly defective, there is no question that the supplier is liable. Thus, where an ingredient in processed food is contaminated or where a truck tire has a flaw that causes a blowout, the supplier of the ingredient or the tire is liable. The difficult questions arise where the components are not inherently defective, but the finished product is defective because it lacks a safety feature or …

A Voice Of Reason: The Products Liability Scholarship Of Gary T. Schwartz, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

Of my many fond personal memories of Gary Schwartz, the one that stands out most vividly summons from the mists of time an evening in June 1983 at Boston's Fenway Park. It was my last visit to a childhood haunt where I had seen my first professional baseball game in 1941, an occasion that marked the beginning of a lifelong passion for the national pastime. Settled into an excellent seat that faced the storied left-field wall (and brought to mind visions of the large advertisements that covered its surface before it became known as the "Green Monster”,), I began to …

Treating Physicians As Expert Witnesses In Compensation Systems: The Public Health Connection, Brian C. Murchison

Kentucky Law Journal

No abstract provided.

Gun Torts: Defining A Cause Of Action For Victims In Suits Against Gun Manufacturers, John G. Culhane, Jean M. Eggen

Jean M. Eggen

Although tens of thousands of Americans die from gun violence every year, the regulation of firearms remains inadequate. Those who are injured, or the survivors of those killed by guns, therefore have sought relief through tort law against those who manufacture these uniquely deadly products. With rare exceptions, however, these suits have been unsuccessful. Most courts have found that the conduct of gun manufacturers is not actionable under strict product liability doctrine, negligence, or the law of abnormally dangerous activities. This Article argues that courts have been too reluctant to apply tort liability to gun manufacturers. It is possible and …