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Articles 1 - 30 of 66
Full-Text Articles in Torts
Radiation Injury And The Law, David S. Gooden
Tort Law—General Release Forms—The Free Ride For Joint Tortfeasors Is Over. Moore V. Missouri Pacific Railroad, 299 Ark. 232, 773 S.W.2d 78 (1989)., Marshall S. Ney
Tort Law—General Release Forms—The Free Ride For Joint Tortfeasors Is Over. Moore V. Missouri Pacific Railroad, 299 Ark. 232, 773 S.W.2d 78 (1989)., Marshall S. Ney
University of Arkansas at Little Rock Law Review
No abstract provided.
Liability For Discretionary Decisions Of State Officers And Employees Under The North Carolina Tort Claims Act: A Critical Analysis Of Hochheiser V. North Carolina Department Of Transportation, Mark W. Morris
North Carolina Central Law Review
No abstract provided.
Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.
Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.
Michigan Law Review
This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …
Corporate Life After Death: Cercla Preemption Of State Corporate Dissolution Law, Audrey J. Anderson
Corporate Life After Death: Cercla Preemption Of State Corporate Dissolution Law, Audrey J. Anderson
Michigan Law Review
This Note discusses CERCLA's preemption of state corporate dissolution law. Although CERCLA contains a preemption clause intended to specify CERCLA's relationship with other laws, this clause addresses only state laws that impose stricter standards than those contained in CERCLA, and does not address state laws that, like dissolution laws, remove liability from a party otherwise liable under CERCLA. Courts, therefore, have also looked to section 107 of CERCLA, which imposes liability against specified parties "[n]notwithstanding any other provision or rule of law," to determine CERCLA's general relationship with state law. Through such an analysis, courts have agreed that CERCLA does …
Structured Settlements And Structured Judgements: Do They Work And Do We Want Them?, Leanne Todd
Structured Settlements And Structured Judgements: Do They Work And Do We Want Them?, Leanne Todd
Dalhousie Law Journal
Structured settlements are an alternative to traditional lump sum settlements for personal and fatal injuries claims. Under a structured settlement the defendant, generally a casualty insurer, satisfies all or part of the claim via periodic payments to the plaintiff.
A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie
A Fault-Based Administrative Alternative For Resolving Medical Malpractice Claims, Kirk B. Johnson, Carter G. Phillips, David Orentlicher Orentlicher M.D., Martin S. Hatlie
Vanderbilt Law Review
The recurring crises in medical malpractice litigation have been widely discussed and documented over the past two decades.' In response to these crises, a growing consensus has emerged among legislatures, government agencies, and scholars in favor of tort reform. Indeed, virtually every state has passed some tort reform legislation.'Despite the reforms, several serious problems persist in medical malpractice. The current tort system does not compensate injured patients adequately or equitably, nor does it deter negligent practices sufficiently. These failings occur despite the increasingly high costs to society of the tort system. Particularly troublesome is the impact of these crises on …
Foreward: Choosing Among Systems Of Auto Insurance For Personal Injury, Stephen D. Sugarman
Foreward: Choosing Among Systems Of Auto Insurance For Personal Injury, Stephen D. Sugarman
San Diego Law Review
In his Forward to this volume's Tort Law - No-Fault Insurance Symposium, Mr. Sugarman briefly notes the key issues regarding the system of auto insurance for personal injury and highlights the issues raised by the contributing authors. After discussing the no-fault auto insurance movement of the 1960s and 1970s, its adoption in New York and Michigan, and a system that gives motorists a choice between Fault and No-Fault insurance, the author puts forth his own proposal. The author proposes that the state assure the universal availability of first party (no-fault) benefits for auto accident victims, but that these benefits not …
No-Fault Auto Insurance: Back By Popular (Market) Demand, Jeffrey O'Connell
No-Fault Auto Insurance: Back By Popular (Market) Demand, Jeffrey O'Connell
San Diego Law Review
In this Article, Professor O'Connell discusses the inadequacies behind auto insurance and the system of no-fault auto insurance. Picking up where a California Senator left off with the provocative question, "Why not offer consumers a choice in the marketplace?," the author sets forth a proposal whereby consumers would have a choice. Consumers would be allowed to choose between fault-based and no-fault insurance. Such a choice would insulate the costs of no-fault coverage from those of tort liability. The latter part of the Article is spent rebutting the proposals and ideas put forth by the other contributing authors.
Reducing Noneconomic Damages By Trick, Joseph W. Little
Reducing Noneconomic Damages By Trick, Joseph W. Little
San Diego Law Review
In this Article, Professor Little takes issue with the Jeffrey O'Connell and Robert Joost "freedom to choose" no-fault plan. The author demonstrates why presenting this plan in the guise of freedom of choice is a charlatan's trick that would not fool most lawyers and judges. In effect, it benefits the rich at the expense of the ppor. He then presents some different approaches for solving the problem O'Connell and Joost want solved. His plans would induce early settlement attempts that would be beneficial both in bringing tort litigation under control and in reducing costs.
Choosing The Best Auto Insurance Choice System, Robert H. Joost
Choosing The Best Auto Insurance Choice System, Robert H. Joost
San Diego Law Review
In this Article, Mr. Joost reviews the auto insurance choice system and highlights recent legislative history in various states pertinent to the choice system. Acknowledging that there is growing interest in the concept of choice in auto insurance, the author recognizes that there is a lack of any consensus as to the best mechanism to use to assure that consumers can make an informed and rational choice. The author examines eight different possible choice mechanisms. He next summarizes the issues and problems that ought to be addressed in any choice system. In conclusion, any auto insurance reform proposal must be …
Whither No-Fault In California: Is There Salvation After Proposition 103, William C. George
Whither No-Fault In California: Is There Salvation After Proposition 103, William C. George
San Diego Law Review
In this Article, Mr. George, offers some suggestions for the solution of the automobile insurance problem. Recognizing that the biggest problem is cost, the author suggest that one way of reducing cost would be to repeal the financial responsibility laws. People concerned with protecting themselves and their assets would purchase first party and third party coverages. The irresponsible party would be left to their own devices and subject to legal sanctions for failure to pay for damage they caused. The author draws a parallel between the amount paid in premiums to amount of benefits available. Assuming financial responsibility laws are …
Giving Motorists A Choice Between Fault And No-Fault Insurance: An Economic Critique, Jack L. Carr
Giving Motorists A Choice Between Fault And No-Fault Insurance: An Economic Critique, Jack L. Carr
San Diego Law Review
In this Article, Professor Carr responds to the proposal by O'Connell and Joost whereby motorists are given a choice between fault and no-fault insurance. Though appealing, there are situations where free choice is inappropriate. This Article examines those situations and argues that free choice of liability rules and insurance regimes will be socially harmful due to the phenomenon of externalities.
A Choice Of Choice: Adding Postaccident Choice To The Menu Of No-Fault Models, Craig Brown
A Choice Of Choice: Adding Postaccident Choice To The Menu Of No-Fault Models, Craig Brown
San Diego Law Review
In this Article, Professor Brown tackles the concept of no-fault auto insurance from the perspective of auto insurance premiums. The author believes that the promise of lower premiums will allow no-fault insurance to succeed where other arguments have failed. There are two models developed for integrating tort and no-fault. In this article, the author proposes a third model: a scheme which allows an accident victim to choose between tort and no-fault after the accident has occurred. Similar to the other two models, this third model would reduce and stabilize costs. Whichever model is chosen, opportunities exist for considerable improvement both …
Legislating Reversions: A Mistken Path Leading To Drastic Results, John H. Abbott
Legislating Reversions: A Mistken Path Leading To Drastic Results, John H. Abbott
San Diego Law Review
This Comment addresses the debate within Congress and the pension community over the disposition of any excess assets remaining after a pension plan is terminated and all its liabilities are paid. Congress is reviewing the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code in the hopes of clarifying alleged problems with asset reversion. The author sees Congress leaning toward either severely restricting future reversions or disallowing them altogether. Any significant changes in the law regarding reversions will be highly detrimental to all concerned in the private pension system. The Comment outlines the unique nature of defined …
Right To Counsel: Balancing The Burden Of Persuasion On The Adversarial Scales Of Criminal Justice, Loretta A. Neary-West
Right To Counsel: Balancing The Burden Of Persuasion On The Adversarial Scales Of Criminal Justice, Loretta A. Neary-West
San Diego Law Review
How much is society willing to pay to protect constitutional rights from government infringement? How much constitutional protection is society allowed to forfeit in exchange for more effective law enforcement? The criminal justice system's allocation of the burdens of proof ultimately decides these questions. When do effective law enforcement tactics, such as undercover agent investigations, violate a defendant's sixth amendment right to the effective assistance of counsel? When does the sixth amendment violation warrant judicial remedies? Only the government knows when and how improperly obtained information is ultimately utilized. The adversarial context of American criminal justice dictates allocating to the …
Alleghany Pittsburgh Coal Co. V. County Commission Of Webster County: Equal Protection In Property Taxation, A New Challenge To Proposition 13, Marian Adams Harvey
Alleghany Pittsburgh Coal Co. V. County Commission Of Webster County: Equal Protection In Property Taxation, A New Challenge To Proposition 13, Marian Adams Harvey
San Diego Law Review
In Allegheny Pittsburgh Coal Co. v. County Comm'n the United States Supreme Court held that it was an unconstitutional violation of equal protection for the assessor of Webster County to subject similarly situated properties to different tax burdens depending on when they were purchased. The Court stated it "need not" and did not decide whether the California Constitution, enacted as Proposition 13, would "stand on a different footing." The Court's collateral reference has inspired recent challenges to Proposition 13. This Note addresses the United States Supreme Court's equal protection analysis and its possible application to California's Article XIII A.
Nally V. Grace Community Church Of The Valley: Absolution For Clergy Malpractice?, Greg Slater
Nally V. Grace Community Church Of The Valley: Absolution For Clergy Malpractice?, Greg Slater
BYU Law Review
No abstract provided.
Manufacturers Of Inherently Dangerous Products: Should They Have A Continuing Duty To Make Their Previously Sold Products Conform To State Of The Art Safety Features, Tamara J. Defazio
Manufacturers Of Inherently Dangerous Products: Should They Have A Continuing Duty To Make Their Previously Sold Products Conform To State Of The Art Safety Features, Tamara J. Defazio
West Virginia Law Review
No abstract provided.
Elden V. Sheldon-Should Policy Outweigh Foreseeability?, Dean H. Lefler
Elden V. Sheldon-Should Policy Outweigh Foreseeability?, Dean H. Lefler
BYU Law Review
No abstract provided.
Schlemmer V. Fireman's Fund Insurance Co.: A Case For Rethinking Arkansas' Choice-Of-Law Rule For Interstate Torts, L. Lynn Hogue
Schlemmer V. Fireman's Fund Insurance Co.: A Case For Rethinking Arkansas' Choice-Of-Law Rule For Interstate Torts, L. Lynn Hogue
University of Arkansas at Little Rock Law Review
No abstract provided.
Sexual Molestation Within America's Parishes And Congregations; Should The Church Be Thy Priest's Keeper, Stephanie D. Young
Sexual Molestation Within America's Parishes And Congregations; Should The Church Be Thy Priest's Keeper, Stephanie D. Young
West Virginia Law Review
No abstract provided.
Products Liability: Breaking Through The Cocoon Of The Cigarette Industry, Emmanuel C. Nneji
Products Liability: Breaking Through The Cocoon Of The Cigarette Industry, Emmanuel C. Nneji
In the Public Interest
No abstract provided.
Punishing The Dead: Whether The Estates Of Dead Tortfeasors Should Be Responsible For Punitive Damages, Charles William Burton
Punishing The Dead: Whether The Estates Of Dead Tortfeasors Should Be Responsible For Punitive Damages, Charles William Burton
University of Arkansas at Little Rock Law Review
No abstract provided.
Washington's Special Relationship Exception To The Public Duty Doctrine, Jenifer Kay Marcus
Washington's Special Relationship Exception To The Public Duty Doctrine, Jenifer Kay Marcus
Washington Law Review
The public duty doctrine states that in order for a person to recover tort damages from a governmental entity, the individual must prove that the governmental entity breached a duty owed to him or her particularly, and not just a breach of a duty owed to the public. The "special relationship" exception to the doctrine provides a mechanism for proving a particularized duty. The Washington Supreme Court has now restricted this exception. By restricting the exception, the court may inappropriately bar certain injured plaintiffs from recovery. The restriction may also violate Washington statutes abrogating governmental immunity by giving government defendants …
The Implications Of 42 U.S.C. § 1983 For The Privatization Of Prisons, Charles W. Thomas, Linda S. Calvert Hanson
The Implications Of 42 U.S.C. § 1983 For The Privatization Of Prisons, Charles W. Thomas, Linda S. Calvert Hanson
Florida State University Law Review
No abstract provided.
Using Statistical Techniques To Predict Non-Pecuniary Damage Awards In Personal Injury Cases, Jack Effron, John Forster
Using Statistical Techniques To Predict Non-Pecuniary Damage Awards In Personal Injury Cases, Jack Effron, John Forster
Dalhousie Law Journal
The real issue in personal injury cases is often damages. Our concepts and law relating to negligence and other aspects of personal injury are sufficiently developed that parties can often agree upon who is at fault. Yet damages law, for all the cases and principles which have been decided, remains the least intelligible and thus the least predictable for parties and their counsel. When parties have to go to trial in a personal injury case, it is often primarily to decide who should pay what.
"Respondent Inferior": The Rule Of Vanderpool V. Grange Insurance Association, 110 Wash. 2d 483, 756 P.2d 111 (1998)?, Karen P. Clark
"Respondent Inferior": The Rule Of Vanderpool V. Grange Insurance Association, 110 Wash. 2d 483, 756 P.2d 111 (1998)?, Karen P. Clark
Washington Law Review
At common law, the majority of states held that a tort claimant's release of either an employer whose sole liability was vicarious or the employee who had committed the tort operated to release the other. Washington follows this position for releases of an employee, but Vanderpool v. Grange Insurance Association announces a different rule for releases of an employer. This Note examines Vanderpool in view of relevant public policies, statutes, and prior case law and recommends adopting a rule that the release of a solvent employer operate to release its employee-tortfeasor.
Strict Liability For Defective Ideas In Publications, Andrew T. Bayman
Strict Liability For Defective Ideas In Publications, Andrew T. Bayman
Vanderbilt Law Review
In 1963 the Supreme Court of California revolutionized the law of torts by adopting the theory of strict liability in products liability cases.' The American Law Institute subsequently promulgated section 402A of the Restatement (Second) of Torts in 1965. Section 402A provides that the seller of a "product in a defective condition unreasonably dangerous" may be held liable even though he has "exercised all possible care."' Today, nearly every state has adopted some form of section 402A.' Moreover, the list of modern products to which section 402A applies is virtually limitless. Yet, despite the unprecedented expansion of strict liability into …
Punitive Damages In Utah-Time For A Clear Standard, David J. Tuckfield
Punitive Damages In Utah-Time For A Clear Standard, David J. Tuckfield
BYU Law Review
No abstract provided.