Torts Commons^™

Justice And Reasonable Care In Negligence Law, Richard W. Wright

All Faculty Scholarship

The academic literature generally assumes that an aggregate-risk-utility test is employed to determine whether conduct was reasonable or negligent. This aggregate-risk-utility test is a transparent implementation of the basic impartiality and aggregation principles of utilitarianism and the most popular (Kaldor-Hicks) interpretation of economic efficiency. Thus, the test's assumed prevalence as the criterion of reasonableness in negligence law has been highlighted by legal economists as confirmation of the utilitarian efficiency foundations of tort law, while those, including Ronald Dworkin, who think that the law, including tort law, is or should be grounded on principles of justice have sought to demonstrate that, …

Negligence In The Courts: Introduction And Commentary, In Symposium, Negligence In The Courts: The Actual Practice, Richard W. Wright

All Faculty Scholarship

This article is an introduction to and commentary on the contributions to a "Symposium on Negligence in the Courts: the Actual Practice." The contributors all conclude that the tests of negligence that are actually employed by the courts differ from the aggregate-risk-utility test that is generally assumed in the academic literature, including the Restatement of Torts. Patrick Kelley and Laurel Wendt's survey of all the standard jury instructions on negligence in the United States finds only one instruction, in Louisiana, that mentions a risk-utility or cost-benefit test of negligence, and that instruction merely suggests, as a discretionary option, the weighing …

Putting The Plaintiff Class' Needs In The Lead: Reforming Class Action Litigation By Extending The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Kendra S. Langlois

William & Mary Law Review

No abstract provided.

Labor And Employment Law, Thomas M. Winn Iii

University of Richmond Law Review

No abstract provided.

Product Liabiity And Game Theory: One More Trip To The Choice-Of-Law Well, Michael I. Krauss

BYU Law Review

No abstract provided.

Appellate Malpractice, Steven Wisotsky

The Journal of Appellate Practice and Process

No abstract provided.

Products Liability - Emerging Consensus And Persisting Problems: An Analytical Review Presenting Some Options, Dr. J. Stanley Mcquade

Campbell Law Review

No abstract provided.

A Right Without A Potent Remedy: Indiana's Bad Faith Insurance Doctrine Leaves Injured Third Parties Without Full Redress, Gregory A. Bullman

Indiana Law Journal

No abstract provided.

"United We Stand": Managing Choice-Of- Law Problems In September-11-Based Toxic Torts Through Federal Substantive Mass- Tort Law, Kenneth G. Kubes

Indiana Law Journal

No abstract provided.

Misclassifying Monetary Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

Unloved: Tort In The Modern Legal Academy, John C.P. Goldberg

Vanderbilt Law Review

In The Idea of Private Law, Ernest Weinrib makes an arresting claim. He says that private law-by which he means primarily the law of contract, restitution, and especially tort-is "just like love."'

Even members of a discipline devoted to analogies may be forgiven for not immediately perceiving the point of this one, particularly if we focus on the private law of tort. Few law students would mistake negligence, defamation, or battery for love, and if they did, their professors might be concerned for their well-being. Likewise, it is difficult to recall another law professor writing of love and tort in …

Modern Tort Law Demystified, Carl Tobias

Nevada Law Journal

No abstract provided.

Replacing A Solid Wall With A Chain-Link Fence: Special Relationship Analysis For Tort Recovery Of Purely Economic Loss, Robert M. Stonestreet

West Virginia Law Review

No abstract provided.

Brief Of Respondents, Norfolk & Western Railway Co. V. Ayers, No. 01-963 (U.S. Aug. 19, 2002), Richard J. Lazarus

U.S. Supreme Court Briefs

No abstract provided.

Brief Of Amici Curiae Of American Law Professors In Support Of Respondents, Norfolk & Western Ry. Co. V. Ayers, No. 01-963 (U.S. Aug. 19, 2002), ., Paul F. Rothstein

U.S. Supreme Court Briefs

No abstract provided.

Tort Liability For The Sale Of Non-Defective Products: An Analysis And Critique Of The Concept Of Negligent Marketing, Richard C. Ausness

Law Faculty Scholarly Articles

This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.

Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category …

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

Faculty Publications

What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, …

Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Unmasking The Presumption In Favor Of Preemption, Mary J. Davis

Law Faculty Scholarly Articles

It is inescapable: there is a presumption in favor of preemption. Historically, the Supreme Court has said differently-that, rather, there is a presumption against preemption. There is no such presumption any longer, if, indeed, there ever really was one. Preemption doctrine has been exceedingly puzzling in the last decade, but when one recognizes that the Court's doctrine not only favors preemption, but presumes it, preemption doctrine is not a puzzle at all.

This Article argues that the Supreme Court's recent preemption decisions compel the conclusion that the Court's preemption analysis has, in effect, created a presumption in favor of preemption, …

Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Manufacturing Defects, David G. Owen

Faculty Publications

No abstract provided.

Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker

All Faculty Scholarship

No abstract provided.

Tort Law, Robin Jean Davis, Louis J. Palmer Jr.

West Virginia Law Review

No abstract provided.

Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter Nash Swisher

Nevada Law Journal

No abstract provided.

Whose Duty Is It Anyway?: The Kennedy Krieger Opinion And Its Implications For Public Health Research, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

In this article, the authors discuss the Maryland Court of Appeals decision in the case of Grimes v. Kennedy Krieger Institute, Inc. and its implications for the tort duty owed by researchers, in particular public health researchers, to their subjects. The Opinion resulted from two lawsuits alleging lead poisoning of children enrolled in a study conducted by the Kennedy Krieger Institute, a world renown pediatric research and treatment facility. The opinion shocked the research establishment with its scathing characterization of researchers and its apparent holding that in Maryland a parent cannot consent to the participation of a child in "nontherapeutic …

Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker

Nevada Law Journal

No abstract provided.

Crisci V. Security Insurance Co.: The Dawn Of The Modern Era Of Insurance: Bad Faith And Emotional Distress Damages, Jeffrey E. Thomas

Nevada Law Journal

No abstract provided.

Ethics Of Enterprise Liability In Product Design And Marketing Litigation, James A. Henderson Jr.

Cornell Law Faculty Publications

American courts talk as though they are imposing strict enterprise liability on product manufacturers, but in truth they do so only with respect to manufacturing defects. In product design and marketing litigation, manufacturers' liability is based on fault. The reason why strict liability is inappropriate for the generic product hazards associated with design and marketing is that, in sharp contrast to manufacturing defects, the conditions necessary for insurance to function are not satisfied. Users and consumers control generic product risks to a sufficiently great extent that any insurance scheme based on strict enterprise liability would be destroyed by combinations of …

Arkansas Surfers And Their Privacy, Or Lack Thereof: Does The Common Law Invasion Of Privacy Tort Prohibit E-Tailers' Use Of "Cookies"?, Bryan T. Mckinney, Dwayne Whitten

University of Arkansas at Little Rock Law Review

No abstract provided.