Law Commons^™

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 …

Small Hope Floats: How The Lower Courts Have Sunk The Right Of Privacy, Stephanie D. Taylor

West Virginia Law Review

No abstract provided.

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 …

Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman

All Faculty Scholarship

While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …

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 …

A Law And Economics Perspective On Terrorism, Nuno M. Garoupa , Jonathan Klick, Francesco Parisi

George Mason University School of Law Working Papers Series

This paper reviews the existing law and economics literature on crime, noting where various models might apply to the terror context. Specifically, it focuses on two strands of the literature, deterrence and incapacitation. Challenging the conventional application of the basic rational agent model of crime in the context of terrorism, it considers anti-terror measures enacted by different countries, highlighting how the details of the laws correspond to the insights from economic models of crime. In conclusion, the paper proposes an efficient sorting mechanism in which individuals will be provided with adequate incentives to reveal their type to law enforcement authorities.

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

ExpressO

No abstract provided.

Tort Reform Through Damages Law Reform, Stephen D. Sugarman

Stephen D Sugarman

In this article I compare tort damages law in Australia (most expecially recent reforms in New South Wales) with that of the US, and I propose changes in the US rules based on Australian experience (and that of some other nations).

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

ExpressO

No abstract provided.

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

ExpressO

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

ExpressO

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

ExpressO

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 …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

Risks Of And Reactions To Underdeterrence In Torts, The, Thomas C. Galligan Jr.

Missouri Law Review

As the nation considers tort reform at both the state and federal levels, it should not be blinded to the fact that while tort law may, in some cases, overdeter beneficial activity or conduct, it also may underdeter dangerous activity or conduct, especially in mass tort cases. The idea that liability or the prospect of liability can shape human behavior through deterrence has become one of the practical and theoretical foundations of tort law.2 Judges and scholars regularly state that deterrence - the prospect that liability can influence behavior - is one of the purposes of tort law. 3 The …

Let's Try Performance-Based Regulation To Attack Our Smoking And Obesity Problems, Stephen D. Sugarman

Stephen D Sugarman

Instead of "command and control" regulation, and instead of litigation, let's try "performance-based regulation" as a way to force enterprises that are responsible for our obesity and smoking problems to solve them.

Civil Rights In Ordinary Tort Cases: Race, Gender, And The Calculation Of Economic Loss, Martha Chamallas

The Ohio State University Moritz College of Law Working Paper Series

This article explores race and sex bias in the computation of damages for loss of future earning capacity, an important component of economic loss in personal injury cases. It analyzes recent cases in the United States and in Canada which reject the use of race and sex-based tables to determine awards for female and minority plaintiffs and explains the method used by the special master in the September 11th Compensation Fund. Chamallas explores objections to reform -- from both the “right” and the “left” –- and makes the case for connecting civil rights principles to civil litigation.

The Challenge To The Individual Causation Requirement In Mass Products Torts, Donald G. Gifford

Faculty Scholarship

This article uses the example of mass products torts to test the traditional principle that requires a specific victim to prove that a particular injurer caused her harm in order to establish tort liability. Proponents of the instrumentalist conception of torts, notably those identified with law and economics such as Calabresi and Posner, view any requirement of individualized causation as “old-fashioned” and inconsistent with their goals of achieving loss minimization and loss distribution or wealth maximization. In contrast, corrective justice theorists, such as Ernest Weinrib, argue that particularized causation is intrinsic to the entire notion of tort liability. The judicial …

Re-Enchanting Torts, Robert F. Blomquist

South Carolina Law Review

No abstract provided.

Air Travel, Accidents And Injuries: Why The New Montreal Convention Is Already Outdated, Andrew Field

Dalhousie Law Journal

The 1999 Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention") came into force in 2003. It is the latest in a series of attempts to replace a number of variations on the 1929 Warsaw Convention with a single agreement which regulates the rights and liabilities of international air carriers, their passengers and shippers. At the time, the Montreal Convention was hailed as providing better protection and compensation for victims of air accidents. However despite its recent adoption, in relation to claims for death and personal injuries the Montreal Convention is still firmly planted …

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 …

Soft Regulators, Tough Judges, Gerrit De Geest, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Judges have a tendency to be more demanding than regulators. In the United States, a majority of the courts has adopted the rule that the unexcused violation of a statutory standard is negligence per se. However, the converse does not hold: compliance with regulation does not relieve the injurer of tort liability. In most European legal systems, the outcome is similar. We use a framework in which, on the one hand, the effects of tort law are undermined by insolvency and evidence problems and, on the other hand, regulation is expensive in terms of monitoring and information gathering. We show …