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Civil Procedure Commons

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Articles 1 - 9 of 9

Full-Text Articles in Civil Procedure

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West Dec 2016

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West

Fordham Law Review

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger tort, because of …


"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz Oct 2015

"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz

Fordham Law Review

This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …


Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky Jan 2012

Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky

Faculty Scholarship

This Article utilizes civil recourse theory along with a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf v. Long Island Railroad Co., one on punitive damages (as seen in the Supreme Court’s struggles with Philip Morris v. Williams), and one on federal preemption (as seen in the Supreme Court’s 4-4 deadlock in Warner-Lambert Company v. Kent). Confusion has been generated by a failure to recognize that -- despite the many aspects of tort law that render it importantly public -- there is something distinctively private about the common law of torts. When one firmly rejects …


Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky Jan 2011

Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky

Faculty Scholarship

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …


Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky Jan 2010

Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky

Faculty Scholarship

Daniel Markovits’ recent book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, begins by articulating an ethical quandary common to litigators: how can I advocate zealously for a client whose story might not be true and whose causes might not be just? In Markovits’ hands, the dilemmas of the adversary advocate are transformed into a philosophical puzzle about the nature of integrity and the very idea of fidelity to a client. Lawyers face a far more onerous ethical burden than is sometimes recognized, Markovits argues, for the adversary advocate in our legal system is professionally obligated to lie …


Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky Jan 2010

Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …


The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg Jan 2010

The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg

Faculty Scholarship

In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …


Theory Of Punitive Damages, Benjamin C. Zipursky Jan 2005

Theory Of Punitive Damages, Benjamin C. Zipursky

Faculty Scholarship

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of …


Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky Jan 2003

Civil Recourse, Not Corrective Justice, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.