Toward A New Paradigm For Multiple-Victim Torts: The Problem Of Victims' Heterogeneity, 2013 Hebrew University of Jerusalem
Toward A New Paradigm For Multiple-Victim Torts: The Problem Of Victims' Heterogeneity, Yoed Halbersberg
Yoed Halbersberg
Conventional wisdom in tort law holds that an injurer’s negligence, a product design defect, and a victim’s contributory negligence should all be decided by weighing the costs and benefits of the relevant activity. In multiple-victim accidents, the current paradigm maintains that liability should be determined by comparing aggregate costs with aggregate benefits.
However, this aggregate liability paradigm—adopted by courts, scholars and the Restatement (Third) of Torts—fails to account for the natural differences that exist between tort victims. When victims are heterogeneous with regard to their expected harm or costs of precaution—as they typically are in real life—basing liability on aggregate …
Il Diritto Comparato Della Causalità Aquiliana, 2013 University of Trieste, Italy
Il Diritto Comparato Della Causalità Aquiliana, Marta Infantino
Marta Infantino
The article (in Italian) offers an overview of the ways in which rules on causation in tort law are conceived of, made and applied by courts and scholars in selected Western jurisdictions.
Getting Your Bell Rung: Analyzing The Concussion Lawsuits Against The National Football League From Former Players, 2013 The Ohio State University
Getting Your Bell Rung: Analyzing The Concussion Lawsuits Against The National Football League From Former Players, Joshua P. Monroe
Joshua P Monroe
There has been a great and divisive conflict between the National Football League and its former players about head injuries. Former players are claiming negligence by the league in the addressing the issues of head injuries. This paper investigates the argument by both sides in past, present, and possible future litigation, and further explores head injuries. This article explains that the current litigation, while useful, will not succeed because of its obscurity and the presumptions that it makes regarding concussions. This article proposes a new lawsuit that would combine aspects of the Major Tobacco Settlement Agreement of 1998 and the …
Crop Insurance Bad Faith: Protection For America's Farmers, 2013 Florida State University
Crop Insurance Bad Faith: Protection For America's Farmers, Chad G. Marzen
Chad G. Marzen
This article examines issues concerning the potential liability of crop insurers for insurance bad faith, and discusses cases to date on the issue of federal preemption of insurance bad faith claims under the Federal Crop Insurance Act (FCIA) and the development of a general rule that bad faith claims under state law are not preempted by the FCIA. The article argues that the crop insurance bad faith remedy is designed as a check against egregious, intentional and reckless misconduct of a crop insurer in the handling of a claim and should be preserved by the courts.
The Merrill Doctrine And Federally Reinsured Crop Insurers, 2013 Florida State University
The Merrill Doctrine And Federally Reinsured Crop Insurers, Chad G. Marzen
Chad G. Marzen
Since 1947, the Federal Crop Ins. Corp. v. Merrill decision has operated to bar claims of equitable estoppel against agents of the federal government. However, the applicability of the Merrill doctrine to insurers is unclear. There is a split of authority on this significant issue and it remains largely unresolved in numerous jurisdictions. An early trend developed where the courts applied the Merrill doctrine to alleged misrepresentations of agents of the FCIC as well as the agents of private insurers. In the early to mid 2000s, the decisions of three state courts (in Kentucky, Georgia and Tennessee) declined toe extend …
Cleaning Up Oil Spill Liability Through Commercial Quasi-Property Rights, 2013 Michigan State University College of Law
Cleaning Up Oil Spill Liability Through Commercial Quasi-Property Rights, Troy S. Brown
Troy S Brown
The pure economic loss rule, embodied in Robins Dry Dock v. Flint, has denied many individuals and businesses who commercially use and rely upon oil spill damaged land and resources, because their economic losses were unaccompanied by physical injury. In passing the Oil Pollution Act of 1990, the U.S. Congress sought to ameliorate the harshness of the pure economic loss rule by creating §2702(b)(2)(E), a cause of action to recover such economic losses, even in the absence of a recognized proprietary interest in an affected resource. However, the persistence of the pure economic loss rule, the Oil Pollution Act’s vague …
The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, 2013 University of Maryland School of Law
The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford
Maryland Law Review Online
The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …
The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), 2013 The John Marshall Law School
The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), Marc Ginsberg
UIC Law Open Access Faculty Scholarship
The "locality rule" places a geographical dimension on the professional standard of care in medical negligence litigation. It requires the measurement of a physician's conduct by a standard focusing on the geographical location of the treatment provided. This Article traces the origin of the locality rule, discusses its related practical problems, focuses on the states in which it exists, suggests that the rule is archaic, and explains how modern medicine (undergraduate medical education, graduate medical education, state medical licensure, board certification, continuing medical education and practice guidelines) is well positioned to eradicate it.
Autonomous Vehicle Liability—Application Of Common Carrier Liability, 2013 Seattle University School of Law
Autonomous Vehicle Liability—Application Of Common Carrier Liability, Dylan Levalley
Seattle University Law Review SUpra
No abstract provided.
The Reciprocity Of Search, 2013 Vanderbilt University Law School
The Reciprocity Of Search, Tun-Jen Chiang
Vanderbilt Law Review
The discussion of search in patent law always focuses on one particular model of search: producers of commercial products are supposed to identify the patents that their products might infringe and then negotiate a license from the owners of those patents. This one-sided view of search responsibility is most evident in doctrine. As a doctrinal matter, patent law imposes an absolute duty on the producer of a commercial product to find all relevant patents and obtain licenses from each of the owners before commencing manufacture. Failure to meet this duty is punished by liability for infringement, where ignorance of the …
Products Liability And Economic Activity: An Empirical Analysis Of Tort Reform's Impact On Businesses, Employment, And Production, 2013 Vanderbilt University Law School
Products Liability And Economic Activity: An Empirical Analysis Of Tort Reform's Impact On Businesses, Employment, And Production, Joanna M. Shepherd
Vanderbilt Law Review
For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most comprehensive dataset to date on products liability reforms and economic activity, I find that many reforms that restrict the scope of products liability improve economic conditions. Specifically, these reforms increase the number of businesses, employment, and production in the industries that face most …
Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, 2013 University of Florida Levin College of Law
Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee
UF Law Faculty Publications
This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.
Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, 2013 American University Washington College of Law
Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, Fernanda Nicola
Articles in Law Reviews & Other Academic Journals
Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a …
The Domagala Dilemma-Domagala V. Rolland, 2013 Mitchell Hamline School of Law
The Domagala Dilemma-Domagala V. Rolland, Michael K. Steenson
Faculty Scholarship
In Domagala v. Rolland, the Minnesota Supreme Court granted review in a personal injury case that was dominated by duty and special relationship issues, even though the parties agreed that there was no special relationship between them. The case, straddling the misfeasance/nonfeasance line, was complicated by the defense theory (that the lack of a special relationship meant that the defendant owed no duty to protect or warn the plaintiff), and the plaintiff’s theory (that the defendant owed a duty of reasonable care to the plaintiff because he acted affirmatively, even if the risk to the plaintiff did not become apparent …
Taxing Anxiety, 2013 Mitchell Hamline School of Law
Taxing Anxiety, Morgan Holcomb
Faculty Scholarship
In this article, I argue for a statutory change to the disparity in the taxation of damages. I submit that nearly all damages, including damages received on account of physical injury, ought to be taxable, and that juries must be apprised of tax consequences so that they can make proper adjustments to take account of these tax consequences. I will refer to this as the full inclusion proposal with jury awareness - for ease, the full inclusion proposal.
My proposed change is the more sound solution for several reasons. Full inclusion creates certainty and avoids wasteful tax gamesmanship. Furthermore, assuming …
Bankruptcy Trusts, Transparency And The Future Of Asbestos Compensation, 2013 University at Buffalo School of Law
Bankruptcy Trusts, Transparency And The Future Of Asbestos Compensation, S. Todd Brown
Journal Articles
As we enter the fifth decade of asbestos personal injury litigation, much of the debate over its immediate future centers on the operations of bankruptcy trusts and their relationship to the tort system. Roughly 100 companies have entered bankruptcy as a result of their unsustainable asbestos liabilities, and, from these bankruptcies, approximately 60 trusts have been established or are in the process of being established. Some critics contend that the trust system is plagued by fraud and abuse; allowing plaintiffs' lawyers to obtain compensation from the trusts for fraudulent claims and to evade relevant discovery obligations under applicable state law. …
Plaintiff Control And Domination In Multidistrict Mass Torts, 2013 University at Buffalo School of Law
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Journal Articles
No abstract provided.
Showing On-Field Racism The Red Card: How The Use Of Tort Law And Vicarious Liability Can Save The Mls From Joining The English Premier League On Racism Row, 2013 Villanova University Charles Widger School of Law
Showing On-Field Racism The Red Card: How The Use Of Tort Law And Vicarious Liability Can Save The Mls From Joining The English Premier League On Racism Row, Joseph B. Kenney
Jeffrey S. Moorad Sports Law Journal
No abstract provided.
No Implied Effect: The ‘Safe’ Fcc Cell Phone Radiation Standard And Tort Immunity By Implied Conflict Preemption, 2013 University of Richmond
No Implied Effect: The ‘Safe’ Fcc Cell Phone Radiation Standard And Tort Immunity By Implied Conflict Preemption, Sean M. Sherman
Richmond Journal of Law & Technology
Cell phones emit low-level radiation. Constantly.
Sacrificial Lambs: Compensating First Subscribers To Fda-Approved Medications For Postmarketing Injuries Resulting From Unlabeled Adverse Events, 2013 The Catholic University of America, Columbus School of Law
Sacrificial Lambs: Compensating First Subscribers To Fda-Approved Medications For Postmarketing Injuries Resulting From Unlabeled Adverse Events, Rodney K. Miller
Catholic University Law Review
No abstract provided.