Torts Commons^™

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 Conditional Effects Of Ideology And Institutional Structure On Judicial Voting In State Supreme Courts, Jeff L. Yates, Paul Brace, Brent Boyea

ExpressO

Two enormously influential perspectives on courts offer fundamentally different predictions about court outcomes and the effects of judge ideology on those outcomes. Well-known to political scientists studying courts, the ideological voting (IV) literature argues that judge ideology is a strong predictor of court outcomes and that those outcomes should be proximate to the policy preferences of courts. Less known to political scientists but highly influential, the law and economics perspective (LE) focuses on settlement behavior of litigants who try to minimize costs and thus estimate likely outcomes in court, and settle simpler cases pre-trial. In this case selection process litigants …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

Successor Liability For Defective Products: A Redesign Ongoing, Richard L. Cupp

ExpressO

Successor products liability – cases where an injured plaintiff sues a successor business for a defective product sold by a predecessor business -- is a doctrine still under development in the courts, and the doctrine’s unsettled nature seems destined to continue over the next several years. Jurisdictions may be roughly divided into three categories. Several take a restrictive approach toward liability in such cases (sometimes called the “traditional approach”), allowing it only when relatively rare exceptions to a general no-liability rule apply. Several other jurisdictions are less restrictive with successor products liability, allowing recovery under the “product line” or “continuity …

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 …

Democracy And Tort Reform In The U.S.A., Christopher J. Roederer

ExpressO

Democracy in the United States of America is in decline. In much the same way that progressive tort reform was made possible by democratic gains since the 1950s, the current tort retrenchment has been made possible by our democratic losses since the 1980s. Just as tort reform in the 1960s and 1970s helped consolidate and protect our democratic gains, the tort “reforms” from the 1980s to the present have helped further consolidate and protect our rising plutocracy. After a brief introduction setting the stage in broad stroke for the argument that follows, part II draws on recent literature in the …

Public Services Meet Private Law, Michael I. Krauss

ExpressO

Public services are provided at various levels, and for various reasons, by governments to corporate and private citizens. Recently, an important movement in tort theory has sought to allow governments to recoup the cost of public services as tort damages from wrongdoers, especially from wrongdoers of the corporate variety. Much of the latest thrust in tort law, which consists of attorneys-general's suits against corporations, relies implicitly on a challenge to the common law's "free public services doctrine."

Recently, scholarship emanating largely from plaintiff-oriented sources has sought to appeal to free-market and law-and-economics scholars (who are often defense-oriented) by emphasizing the …

Applying Tort Theory To Information Technology, Marvin L. Longabaugh

ExpressO

In this article, I discuss the issue of whether torts attributable to Information Systems products, both hardware and software, should be subject to litigation as a contract action, a tort action, or both. I further suggest a protocol for attorneys and courts to consider when attempting to discern whether a particular cause of action is appropriate. Last, I briefly discuss whether the advent of certification programs for computer professionals should result in the courts reconsideration of the concept of computer malpractice.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

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 …

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

ExpressO

No abstract provided.

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 …

Vioxx: How Strong Is The Case Against Merck?, Jason M. Weigand

ExpressO

The thousands of personal injury cases filed after Merck’s voluntary withdrawal of Vioxx appear difficult to prove. A large obstacle for plaintiffs is the admissibility of epidemiologic studies, which are required to prove specific causation. Pharmaceutical companies spend countless hours and resources developing and researching new drugs. Clinical research began to indicate that there may be an increase in adverse cardiovascular (“CV”) side effects associated with Vioxx. The reliability of this data and how it will work in our courts is a great concern.

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

ExpressO

No abstract provided.

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

ExpressO

The Risks of and Reactions to Underdeterrence in Torts posits that as our 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, it also may underdeter, especially in mass tort cases. The piece contends that the traditional (one-on-one) model of tort law may both cause and exacerbate the underdeterrence problems and, consequently, alternative models (class action, augmented awards, and public tort suits) must be considered and analyzed. The piece proceeds to compare and contrast the strengths and weaknesses of each of …

Mandatory Recall Authority: A Sensible And Minimalist Approach To Improving Food Safety, Michael T. Roberts

ExpressO

No abstract provided.

Developing Internationally Uniform Liability Principles For Harms From Genetically Modified Organisms , Ryan C. Hansen

ExpressO

This paper analyzes the current legal principles regarding liabillity for harms from genetically modified organisms (GMOs) in the U.S. and E.U., as well as the various international policies and mechanisms affecting GMOs

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …