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Requiem For A Remedy: The Law And Economics Of Mutual Pharmaceutical V. Bartlett’S Over-Preemption, Robert C. Baker III 2015 University of Maryland Francis King Carey School of Law

Requiem For A Remedy: The Law And Economics Of Mutual Pharmaceutical V. Bartlett’S Over-Preemption, Robert C. Baker Iii

Endnotes

No abstract provided.


Annual Survey Of Developments In International Trade Law: 1983, Georgia Journal of International and Comparative Law 2015 University of Georgia School of Law

Annual Survey Of Developments In International Trade Law: 1983, Georgia Journal Of International And Comparative Law

Georgia Journal of International & Comparative Law

No abstract provided.


Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley 2015 Continental Bank

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.


Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, barbara p. billauer esq 2015 Foundation of Law and Science Centers, Inc.

Dumping Daubert, Popping Popper And Falsifying Falsifiability: A Re-Assessment Of First Principles, Barbara P. Billauer Esq

barbara p billauer esq

Abstract:

The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’

It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making, which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple ...


Everything Is Presumed In Texas, Benjamin Walther 2015 Shook, Hardy & Bacon L.L.P.

Everything Is Presumed In Texas, Benjamin Walther

Benjamin Walther

As this Article will reveal, the Fifth Circuit has traditionally been loath to apply the presumption against preemption in most cases. Texas courts, on the other hand, have consistently employed a particularly strong application of the presumption to all types of preemption cases. This inconsistency between these two jurisdictions creates an incentive for forum shopping. Generally, the courts rely on a defendant’s ability to remove a case to the federal courts to counteract the plaintiff’s exclusive power to decide the forum. This ability, however, is not available to a defendant within the context of preemption cases. As such ...


Fda Approval Of Drugs And Devices: Preemption Of State Laws For “Parallel” Tort Claims, Marcia Boumil 2015 University of Maryland Francis King Carey School of Law

Fda Approval Of Drugs And Devices: Preemption Of State Laws For “Parallel” Tort Claims, Marcia Boumil

Journal of Health Care Law and Policy

The U.S. Supreme Court’s important ruling in Mutual Pharmaceutical Co., Inc. v. Bartlett concerns whether the Food and Drug Administration’s (“FDA”) approval of a generic drug insulates the drug manufacturer from liability under state tort laws from claims of injury due to an alleged “design defect.” The Court previously ruled that FDA approval does not preempt state law claims based upon failure-to-warn, at least with respect to brand name products. In contrast, the Court previously ruled that the federal regulatory process leading to FDA approval of generic equivalents of brand drugs—and designation of the drug label ...


Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer E. Spreng 2015 Arizona Summit Law School

Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer E. Spreng

Jennifer E Spreng

Problem-solving is the manifestation of a lawyer’s expertise. Unfortunately, the first year of law school is too highly compartmentalized and often semi-rote-learning experience that does not disturb what are many students’ passive undergraduate school learning strategies. Once taught the same way in law school, students are unlikely to develop the more intellectually sophisticated, relational learning strategies to make the cross-topical and cross-disciplinary connections of which problem-solving expertise is made.

This article argues that horizontally and vertically integrated first-year courses with spiral designs that prioritize honing students’ analytical and problem-solving capacities can break this cycle and prepare students with more ...


The European Directive On Products Liability: The Promise Of Progress?, Lawrence C. Mann, Peter R. Rodrigues 2014 Wayne State University Law School

The European Directive On Products Liability: The Promise Of Progress?, Lawrence C. Mann, Peter R. Rodrigues

Georgia Journal of International & Comparative Law

No abstract provided.


“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness 2014 University of Kentucky College of Law

“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness

Law Faculty Scholarly Articles

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products ...


Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter 2014 California Western School of Law

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.


State Farm 'With Teeth': Heightened Judicial Review In The Absence Of Executive Oversight, Catherine M. Sharkey 2014 NYU School of Law

State Farm 'With Teeth': Heightened Judicial Review In The Absence Of Executive Oversight, Catherine M. Sharkey

New York University Public Law and Legal Theory Working Papers

While courts and commentators have considered the information-forcing role of executive oversight and judicial review of agency action, the dynamic relationship between the two has yet to be considered. This Article presents a novel justification for heightened judicial scrutiny in the absence of meaningful executive oversight, premised on a reasoned decision-making basis. Judicial review of certain types of agency determinations should be more stringent because those determinations have not been vetted by executive oversight and are thus less likely to be premised on reasons backed by empirical support. Agency cost-benefit analyses and agency conflict preemption determinations—two realms rarely if ...


Cgmp Violations Should Not Be Used As A Basis For Fca Actions Absent Fraud, Kyle Faget 2014 Seattle University School of Law

Cgmp Violations Should Not Be Used As A Basis For Fca Actions Absent Fraud, Kyle Faget

Seattle University Law Review

Since Congress amended the False Claims Act (FCA) in 1986, the statute has evolved into a seemingly boundless weapon for enforcing other statutes and regulations applicable to every industry that accepts any form of government funding. Use of the FCA by the Department of Justice (DOJ) and by private citizens bringing actions on behalf of the U.S. government to enforce other statutes and regulations is particularly evident in the field of health care. The FCA has been utilized in actions where the allegations include off-label promotion of drugs, kickbacks, and violations of current good manufacturing practices (cGMPs) by linking ...


For Every Wrong, A Remedy: A Narrow Interpretation Of The Locomotive Inspection Act's Preemptive Scope In Asbestos Cases, Andrew Malzahn 2014 Hamline University

For Every Wrong, A Remedy: A Narrow Interpretation Of The Locomotive Inspection Act's Preemptive Scope In Asbestos Cases, Andrew Malzahn

Hamline Law Review

abstract


Off-Road Torts: The Difficulties Of Representing A Client Injured Due To Defects In Vehicles Modified For Off-Road Use Or Injured Due To A Dangerous Condition Of The Land., Nicholas Morgan 2014 SelectedWorks

Off-Road Torts: The Difficulties Of Representing A Client Injured Due To Defects In Vehicles Modified For Off-Road Use Or Injured Due To A Dangerous Condition Of The Land., Nicholas Morgan

Nicholas Morgan

No abstract provided.


The Tort Entitlement To Physical Security As The Distributive Basis For Environmental, Health, And Safety Regulations, Mark A. Geistfeld 2014 New York University School of Law

The Tort Entitlement To Physical Security As The Distributive Basis For Environmental, Health, And Safety Regulations, Mark A. Geistfeld

New York University Law and Economics Working Papers

In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled ...


The Tort Entitlement To Physical Security As The Distributive Basis For Environmental, Health, And Safety Regulations, Mark A. Geistfeld 2014 New York University School of Law

The Tort Entitlement To Physical Security As The Distributive Basis For Environmental, Health, And Safety Regulations, Mark A. Geistfeld

New York University Public Law and Legal Theory Working Papers

In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled ...


Compelling Product Sellers To Transmit Government Public Health Messages, Stephen D. Sugarman 2014 University of California, Berkeley

Compelling Product Sellers To Transmit Government Public Health Messages, Stephen D. Sugarman

Stephen D Sugarman

No abstract provided.


The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness 2014 University of Kentucky College of Law

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

Law Faculty Scholarly Articles

Prescription drug abuse problems have prompted a number of responses by both drug users (and abusers) and by various federal and state government agencies.

Part I of this Article examines the impressive array of liability theories that individual litigants have relied upon in their lawsuits against Purdue. These theories include: negligence; strict products liability, including design defect and inadequate warning claims; breach of the implied warranty of merchantability; violation of state consumer protection statutes; negligent marketing; fraudulent misrepresentation; civil conspiracy; and "malicious conduct." Purdue, the company that developed OxyContin, has pursued an aggressive "no settlement" policy and has chosen to ...


Benevolent Maleficence:How A Well-Intentioned Legislature And A Deferential Court Combined To Stunt The Development Of Massachusetts Product Liability Law, Philip E. Cleary 2014 University of Massachusetts School of Law

Benevolent Maleficence:How A Well-Intentioned Legislature And A Deferential Court Combined To Stunt The Development Of Massachusetts Product Liability Law, Philip E. Cleary

University of Massachusetts Law Review

Massachusetts product liability law is unusual. Unlike most states, Massachusetts does not recognize strict tort liability in the product area. Rather, "strict product liability" is limited to breaches of warranty under Article 2 of the Uniform Commercial Code. the Massachusetts Legislature amended Article 2 in several ways to provide a "strict liability" remedy that is, in the words of the Massachusetts Supreme Judicial Court, "congruent in nearly all respects with the principles" of strict tort liability. The court has construed the amendments to the UCC as precluding the adoption of strict tort liability in Massachusetts. In most ways, Massachusetts product ...


Tort Law In The Age Of Statutes, Mark A. Geistfeld 2014 New York University School of Law

Tort Law In The Age Of Statutes, Mark A. Geistfeld

New York University Public Law and Legal Theory Working Papers

The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, these three statutorily related doctrines are a muddle, lacking any coherent theory that adequately accounts for the competing institutional concerns of the federal regulatory and state tort systems. The problem resides in a mistaken focus on statutory purpose. Due to the supremacy of legislative law, a ...


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