Reconsidering Wrongful Birth, 2020 History of Medicine Program, University of Minnesota, Twin Cities
Reconsidering Wrongful Birth, Luke Isaac Haqq
Notre Dame Law Review Reflection
The tort action for “wrongful birth” has a history dating back at least to the
1960s, when it emerged along with the claims for “wrongful life” and “wrongful
conception.” Since their incipience, this trio of lawsuits has generated an expansive
commentary, reaching into thousands of articles in the legal literature alone. With a
divide among federal circuits on wrongful birth only beginning to gain visibility with
Doherty v. Merck & Co. in 2018 and Zelt v. Xytex Corp. in 2019, the wrongful
birth claim could potentially provide a site for the Supreme Court to revisit national
The extant literature ...
Reputational Economies Of Scale, 2020 USC Law School
Reputational Economies Of Scale, Daniel M. Klerman, Miguel De Figueiredo
University of Southern California Legal Studies Working Paper Series
For many years, most scholars have assumed that the strength of reputational incentives is positively correlated with the frequency of repeat play. Firms that sell more products or services were thought more likely to be trustworthy than those that sell less because they have more to lose if consumers decide they have behaved badly. That assumption has been called into question by recent work that shows that, under the standard infinitely repeated game model of reputation, reputational economies of scale will occur only under special conditions, such as monopoly, because larger firms not only have more to lose from behaving ...
Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, 2020 American University of Paris
Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.
Washington International Law Journal
Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the ...
Clarifying Washington's Approach To The Independent Duty Doctrine, 2020 University of Washington School of Law
Clarifying Washington's Approach To The Independent Duty Doctrine, Margaret Wykowski
Washington Law Review
When faced with limited or no recovery under contract law, resourceful lawyers often turn to tort law. The economic loss rule restricts this practice by barring recovery in tort for solely economic losses. However, what qualifies as “economic loss” is not always clear. In 2010, the Washington State Supreme Court announced it was clarifying the economic loss rule by adopting the independent duty doctrine. Rather than analyze the type of loss suffered, the independent duty doctrine determines whether a party owed a tort duty independent of the relevant contract, closely mirroring a traditional tort inquiry. When establishing the independent duty ...
Breaking Down The Wall Around Judicial Review In The Immigration Context: Examining Whether § 1252(G) Precludes Review Of Noncitizen Ftca Claims For Wrongful Removal In Violation Of A Court Order, 2020 Boston College Law School
Breaking Down The Wall Around Judicial Review In The Immigration Context: Examining Whether § 1252(G) Precludes Review Of Noncitizen Ftca Claims For Wrongful Removal In Violation Of A Court Order, Carmella R. O'Hanlon
Boston College Law Review
On August 9, 2018, the Ninth Circuit Court of Appeals in Arce v. United States held that a jurisdiction-stripping provision of the Immigration and Nationality Act does not preclude judicial review of damages claims brought by noncitizens. The Ninth Circuit’s holding opened the door for noncitizens who were wrongfully removed from the United States in violation of a court order or automatic stay to pursue damages. In doing so, the Ninth Circuit departed from the Eighth Circuit Court of Appeals, which held that the Act precluded noncitizens’ damages claims. This Comment argues that the Ninth Circuit’s holding was ...
Held Accountable: Should Gun Manufacturers Be Held Liable For The Criminal Use Of Their Products, 2020 Pepperdine University
Held Accountable: Should Gun Manufacturers Be Held Liable For The Criminal Use Of Their Products, Benjamin Caryan
The Journal of Business, Entrepreneurship & the Law
This comment starts with a review of the most stringent laws currently enacted. After going over what is enacted, it will discuss the reasons given as to why gun manufacturers should be held liable and under what theories, including tort liability and public nuisance theories. Next, it will cover novel approaches to the strict liability, including arguments like negligent distribution, entrustment, and marketing. It will discuss similarities between the tobacco, automobile, and alcohol industry with the firearms industry. It will then go over how the recent push for gun legislation affected the sale and purchase of firearms. Lastly, to summarize ...
When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, 2020 California State University
When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr
Michigan Technology Law Review
If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon ...
Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman
University of Michigan Journal of Law Reform
The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s ...
Risky Business: The Eleventh Circuit Applies Spokeo To Assess The Sufficiency Of Risk For Article Iii Standing In Muransky V. Godiva Chocolatier, Inc., Michelle Chaing Perry
Boston College Law Review
On October 4, 2019, the United States Court of Appeals for the Eleventh Circuit granted the appellants in Muransky v. Godiva Chocolatier, Inc. a rehearing en banc. As a result, the court vacated its original holding that violating the truncation requirement in the Fair and Accurate Transactions Act of 2003 results in a concrete injury for the purposes of standing. The requirement forbids merchants from printing more than the last five digits of a credit card number on a point-of-sale receipt. In its original decision, the Eleventh Circuit demonstrated an unwillingness to override congressional findings that merchants who fail to ...
Aging Out Arbitration For Wrongful Death Suits In Nursing Homes, 2020 Pepperdine University
Aging Out Arbitration For Wrongful Death Suits In Nursing Homes, Courtney Dyer
Pepperdine Dispute Resolution Law Journal
The first section of this article will discuss the significance of removing arbitration agreements from wrongful death claims and implementing mediation instead. The second section will detail the background of arbitration clauses in nursing homes. The third section will review state acts that have opposed the use of arbitration agreements for wrongful death claims in nursing homes. The fourth section will analyze cases that have challenged arbitration agreements in nursing homes for wrongful death claims. The fifth section will propose compulsory mediation and multi-tiered dispute resolution clauses as substitutes for arbitration clauses. Finally, the sixth section will consider potential objections ...
A Better Interpretation Of The Wrongful Death Act, 2020 University of Maine School of Law
A Better Interpretation Of The Wrongful Death Act, Dennis M. Doiron
Maine Law Review
A viable fetus is not a person under the wrongful death act, declared the Maine Law Court in a controversial decision in 1988. To reach this conclusion, the court employed one traditional and one new rule of statutory interpretation, and one traditional rule of law. The traditional rule of interpretation-that the wrongful death act is to be strictly construed because it is in derogation of the common law-dates from the earliest wrongful death cases heard by the court. The new rule of interpretation-that the death statute must be harmonized with the Maine Uniform Probate Code-derives from the enactment of the ...
You’Ve Got Mail, But Not Jurisdiction: The Federal Tort Claims Act And The Mailbox Rule, 2020 Boston College Law School
You’Ve Got Mail, But Not Jurisdiction: The Federal Tort Claims Act And The Mailbox Rule, Maxwell Fabiszewski
Boston College Law Review
The Federal Tort Claims Act provides private individuals with limited rights of action against the United States government if plaintiff-claimants meet certain jurisdictional requirements. Specifically, 28 U.S.C. § 2675(a) requires that plaintiff-claimants present claims to responsible federal agencies before filing suit in federal court. On March 7, 2019, in Cooke v. United States, the United States Court of Appeals for the Second Circuit, joining a majority of circuits to have considered the question, refused to apply the mailbox rule to the presentment requirement in section 2675(a). This Comment argues that the Second Circuit’s ruling in Cooke ...
Borrowing American Ideas To Improve Chinese Tort Law, 2020 St. Mary's University School of Law
Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang
St. Mary's Law Journal
As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial opinion ...
Reynolds V. Tufenkjian, 136 Nev. Adv. Op. 19 (Apr. 9, 2020), 2020 University of Nevada, Las Vegas -- William S. Boyd School of Law
Reynolds V. Tufenkjian, 136 Nev. Adv. Op. 19 (Apr. 9, 2020), Brittni Tanenbaum
Nevada Supreme Court Summaries
The Court considered whether a party who purchased a judgment debtor’s rights of action could motion the Court to substitute themselves in as the real party in interest and dismiss the appeal. The Court held that only “things in action” that are otherwise assignable may be subject to execution to satisfy a judgment. The Court concluded that tort claims for personal injury—including fraud/intentional misrepresentation and elder exploitation—are generally not assignable. The Court further concluded that tort claims for injury to property and contract-based claims, unless the claims are personal in nature, are generally assignable. Therefore, the ...
Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, 2020 St. Mary's University
Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis
St. Mary's Law Journal
Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the ...
[Auto-Reply] I’M Driving—I’Ll Get Back To You Later: Why New York Should Recognize Texters As Co-Creators Of Risk, Courtney A. Way
Buffalo Law Review
No abstract provided.
Let The Jury Decide! A Plea For The Proper Allocation Of Decision-Making Authority In Louisiana Negligence Cases, 2020 Louisiana State University Law Center
Let The Jury Decide! A Plea For The Proper Allocation Of Decision-Making Authority In Louisiana Negligence Cases, Thomas C. Galligan Jr.
No abstract provided.
The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, 2020 University of Michigan Law School
The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, Tezira Abe
Michigan Law Review
The National Collegiate Athletic Association (NCAA) is the primary governing body of college athletics. Although the NCAA proclaims to protect student-athletes, an examination of its practices suggests that the organization has a troubling history of ignoring the harmful effects of concussions. Over one hundred years after the NCAA was established, and seventy years after the NCAA itself knew of the potential effects of concussions, the organization has done little to reduce the occurrence of concussions or to alleviate the potential effects that stem from repeated hits to the head. This Note argues for recognizing a special relationship between the NCAA ...
Tax Free Damages: Trespassory Torts And Emotional Harms, 2020 The University of Akron
Tax Free Damages: Trespassory Torts And Emotional Harms, Joi T. Christoff
Akron Law Review
This Article proposes a conception of the “personal physical injury” exclusion that does not require observable bodily harm. The §104 exclusion has historically been interpreted by reference to tort principles. And tort law has long recognized the legitimacy of emotional distress arising from invasions of physical interests that do not cause bodily harm, even when it would not recognize emotional distress in other contexts. The “personal physical injury” exclusion of § 104(a)(2) should be interpreted consistently with tort principles such that emotional distress damages attributable to intentional invasions into a person’s physical autonomy, security, and liberty should be ...
(Almost) No Bad Drugs: Near-Total Products Liability Immunity For Pharmaceuticals Explained, 2020 Brooklyn Law School
(Almost) No Bad Drugs: Near-Total Products Liability Immunity For Pharmaceuticals Explained, Anita Bernstein
Washington and Lee Law Review
This Article explores four beliefs about supposed pharma-benevolence that appear to be shared by more than the industry, reaching the level almost of conventional wisdom. These figurative pillars help support one-sided results in court. However, each of the pillars on examination turns out at least a bit shaky. This Article puts them forward for review to start a necessary discussion.
The locus of this Article is products liability, where a court concludes that a manufactured object is defective or could be called defective by a factfinder following a trial. Drug manufacturers enjoy near-immunity from this consequence. Modern products liability identifies ...