Torts Commons^™

Understanding Joint And Several Liability, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Star Gazing: The Future Of American Products Liability Law, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Stargazing: The Future Of American Products Liability Law, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Closing The American Products Liability Frontier: The Rejection Of Liability Without Defect, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

For over one hundred years American courts expanded the rights of plaintiffs in products liability cases. First the courts eliminated the privity requirement, next the necessity of proving fault, and finally, the necessity of proving a production defect. The next logical step in this progression would be to eliminate the need to show any type of defect at all. In this Article, Professors Henderson and Twerski assert that this step cannot and will not be taken. They explore both the possibility of across-the-board liability without defect and the more limited idea of product-category liability without defect. They describe how a …

The Georgia Jury And Negligence: The View From The Bench, R. Perry Sentell Jr.

Scholarly Works

It is virtually impossible to think seriously about torts and not think of negligence; it is virtually impossible to think seriously about negligence and not think of the jury. The staples of the common-law negligence system--striking a liability profile, and assessing a causal loss--are the staples of the civil jury province. The historic inevitableness of the fact, however, has never put the matter beyond reflection, scrutiny, reconsideration, challenge, nor controversy. Assuredly, controversy.

Draft Of From Privacy To Publicity - 1991, Wendy J. Gordon

Scholarship Chronologically

In defense of a "right 'to be let alone'", Warren and Brandeis published their landmark article, The Right to Privacy, approximately one hundred years ago. Over seventy years later, the American Law Institute endorsed a tort right in defense of privacy, and also included in its section on privacy rights a cause of action to redress "appropriation" of one's "name or likeness". Since then courts have used various bases to grant celebrities rights to protect their commercial identities from commercial exploitation by others. Although most states now recognize a right of publicity either by judicial decision or statute, the cause …

Judicial Reliance On Public Policy: An Empirical Analysis Of Products Liability Decisions, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Wealth, Equity, And The Unitary Medical Malpractice Standard, John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

Right-Talk And Torts-Talk: A Commentary On The Road Not Taken In The Intellectual History Of Tort Law, Paul A. Lebel

Faculty Publications

No abstract provided.

Preserving Discretion Without Sacrificing Deterrence: Federal Governmental Liability In Tort, Harold J. Krent

All Faculty Scholarship

No abstract provided.

Historical Study Of Personal Injury Litigation: A Comment On Method, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

In this piece, Russell argues in favor of archival work in the trial-court records rather than appellate court reports in order to gain a more accurate historical view.

A Comparison Of Civil Procedure Practices In Products Liability Actions Between The United States And Japan: Underlying Reasons For Basic Differences, Akio Hayashi

LLM Theses and Essays

Both the U.S. and Japan are highly industrialized countries and many of the same products are used in both countries. So, why is there such a large difference in the number of products liability suits filed?

The present work explores the differences in the American and Japanese legal systems with a focus on products liability claims. The conclusion will show that it is the difference in the two countries applicable civil procedures that explain the disparity in suits.

The Quiet Revolution In Products Liability, James A. Henderson Jr., Theodore Eisenberg

Cornell Law Faculty Publications

Most revolutions are noisy, tumultuous affairs. This is as true of significant shifts in legal doctrine as it is of shifts of political power through force of arms. Indeed, the pro-plaintiff revolution in American products liability in the early 1960s will forever be associated with heroic, martial images, epitomized in Prosser's description of the assault upon, and fall of, the fortress citadel of privity. The same sort of terminology aptly could be used to describe the last five or ten years of legislative reform activity in the various states. Reacting to what many see as "crises" brought on by courts …

Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson

Publications

The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …

Illinois Rejects Market Share Liability: A Policy Based Analysis Of Smith V. Eli Lilly & Co., 79 Ky. L.J. 617 (1991), Kurt M. Zitzer, Marc Ginsberg

UIC Law Open Access Faculty Scholarship

No abstract provided.

How Privacy Got Its Gender, Anita L. Allen, Erin Mack

All Faculty Scholarship

No abstract provided.

Assumption Of Risk After Comparative Negligence: Integrating Contract Theory Into Tort Doctrine, John L. Diamond

Faculty Scholarship

No abstract provided.

The Price Of Beauty: An Economic Approach To Aesthetic Nuisance, George P. Smith Ii, Griffin W. Fernandez

Scholarly Articles

This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of …

Products Liability And Preemption: A Judicial Framework, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

Part I of this article examines the preemption doctrine while Part II explores the development of the law of products liability. Part III analyzes products liability cases in which the preemption defense has been raised—focusing on cases involving cigarettes and automobiles—and examines the approaches taken by the courts. Finally, Part IV articulates a framework for courts to use when the preemption defense is asserted in products liability cases.

Lender Liability: The Dilemma Of The Controlling Creditor, J. Dennis Hynes

Publications

No abstract provided.

Governmental Inaction As A Constitutional Tort: Deshaney And Its Aftermath, Thomas A. Eaton, Michael Wells

Scholarly Works

DeShaney v. Winnebago County Department of Social Services is the Supreme Court's first major effort to define the scope of state and local governments' affirmative obligations under the fourteenth amendment. The Court rejected liability against a county welfare agency and a caseworker for failing to prevent a father from severely beating his four-year-old son. The Court intimated that constitutional affirmative duties exist only where the plaintiff is in the state's custody. Scholarly commentary reads the case as announcing a sweeping prohibition against the imposition of affirmative duties in other contexts. Professors Eaton and Wells demonstrate that the DeShaney opinion is …

The Promissory Basis Of Section 90, Edward Yorio, Steve Thel

Faculty Scholarship

No abstract provided.

Getting To No: A Study Of Settlement Negotiations And The Selection Of Cases For Trial, Samuel R. Gross, Kent D. Syverud

Articles

A trial is a failure. Although we celebrate it as the centerpiece of our system of justice, we know that trial is not only an uncommon method of resolving disputes, but a disfavored one. With some notable exceptions, lawyers, judges, and commentators agree that pretrial settlement is almost always cheaper, faster, and better than trial. Much of our civil procedure is justified by the desire to promote settlement and avoid trial. More important, the nature of our civil process drives parties to settle so as to avoid the costs, delays, and uncertainties of trial, and, in many cases, to agree …

The Aftermath Of Injury: Cultural Factors In Compensation Seeking In Canada And The United States, Neil Vidmar, Herbert M. Kritzer, W. A. Bogart

Faculty Scholarship

Injury is common in all societies. Americans are perceived as quick to respond to injury by turning to the legal system. This article compares compensation seeking by Americans and Canadians, examining the degree to which cultural factors shape the response of injured parties in the two countries and the extent to which resources and experiences influence individual action. Drawing on two large-scale telephone surveys, one conducted in five federal judicial districts around the United States and one conducted in the Canadian province of Ontario, the article looks at the factors that influence claiming and seeking legal assistance. The overall patterns …

Educational Malpractice: A Tort Is Born, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Power Of Private Facts, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Limited Liability In Environmental Law, George W. Dent

Faculty Publications

The social importance and immense costs of pollution make environmental law an ideal arena for reconsidering theories of limited liability for tort. This article examines the question in the context of the Comprehensive Environmental Response, Compensation, and Liability Act (CER-CLA).1 Part I reviews the text and legislative history of the Act. Part II analyzes the CERCLA case law on the liability of controlling persons, especially those involving parent corporations. Part III discusses the general theory of limited liability and its exceptions. Part IV applies this general theory to CERCLA and finds that its special features call for distinctive approaches. Part …

Reducing The Recovery Of Avoidable Seat-Belt Damages: A Cure For The Defects Of Waterson V. General Motors Corporation, Paul A. Lebel

Faculty Publications

No abstract provided.

Does "Unlawful" Mean "Criminal"?: Reflections On The Disappearing Tort/Crime Distinction In American Law, John C. Coffee Jr.

Faculty Scholarship

What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?
—Professor Henry M. Hart, Jr.

My thesis is simple and can be reduced to four assertions. First, the dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. Second, this blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control. Third, …

Federal Statutory Review Under Section 1983 And The Apa, Henry Paul Monaghan

Faculty Scholarship

Following hard on the heels of two unanimous decisions sustaining the authority of state courts to enforce federal law, two more unanimous rulings at the end of the 1989 Supreme Court Term strongly emphasized their duty to do so. McKesson Corporation v. Division of Alcoholic Beverages & Tobacco, held that the states must provide meaningful postpayment remedies for parties forced to pay state taxes that had been extracted contrary to the commerce clause, and Howlett v. Rose affirmed the existence of a nearly inescapable duty in the state courts to entertain section 1983 actions. Additionally, three days after Howlett …