Jurisprudence Commons^™

An Essay On Torts: States Of Argument, Marshall S. Shapo

Faculty Working Papers

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Liability Insurance At The Tort-Crime Boundary, Tom Baker

All Faculty Scholarship

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance …

Law, Society, And Medical Malpractice Litigation In Japan, Eric Feldman

All Faculty Scholarship

No abstract provided.

Roscoe Pound, Melvin Belli, And The Personal-Injury Bar: The Tale Of An Odd Coupling, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls "among the most startling and yet unremarked-upon relationships in the annals of American law." Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled "The King and the Dean," in reference to the media's coronation of Belli as the "King of …

Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato

Scholarly Articles

At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning …

Daubert And The Disappearing Jury Trial, Allan Kanner

ExpressO

Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Final Battle For Preemption: The Fda And Prescription Drug Labeling Product Liability Actions, Mary J. Davis

ExpressO

The Food and Drug Administration (FDA) has promulgated a new 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 the FDA’s 100 year history, it has not taken the position that federal prescription drug labeling regulations preempt common law tort claims until the last few years, beginning with Motus v. Pfizer in 2002. This position, radical to many and rational to others, places federal preemption of prescription drug …

Strict Liability And The Liberal Justice Theory Of Torts, Alan Calnan

ExpressO

Ask a group of tort scholars to explain the relationship between fault and strict liability and the responses are likely to be sharply split. An economist might reply that strict liability—assigned on the basis of efficiency—should be the rule and fault, if it is to apply at all, but a reluctant and occasional exception. A moralist, however, would likely give the opposite opinion—that fault, defined as deontological culpability, should be the rule and strict liability the exception.

Ironically, both economists and moralists often base their views on liberal principles. Economists rely on the political dimension of liberalism, arguing that government …

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.

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 …

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".

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

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 …

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

On The Genealogy Of Moral Hazard, Tom Baker

All Faculty Scholarship

No abstract provided.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

The Power Of Private Facts, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Corrective Justice From Aristotle To Second Order Liability: Who Should Pay When The Culpable Cannot?, Kathryn R. Heidt

Washington and Lee Law Review

No abstract provided.

The Enterprise Liability Theory Of Torts, Howard C. Klemme

Publications

No abstract provided.

Evidence, Roslyn M. Litman

Scholarship

This article is not intended to constitute a comprehensive review of all evidence cases decided in Pennsylvania in the past ten years. The cases selected, of necessity, have been limited. They have been chosen because they affect either a field of special interest or one of special confusion. Cases dealing with applications of the parol evi­dence rule and with constitutional issues in criminal prosecutions have been omitted entirely because they are covered elsewhere in this Survey.