Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010),
2010
The John Marshall Law School
Informed Consent: No Longer Just What The Doctor Ordered - The Contributions Of Medical Associations And Courts To A More Patient Friendly Doctrine, 15 Mich. St. U. J. Med. & L. 17 (2010), Marc Ginsberg
UIC Law Open Access Faculty Scholarship
No abstract provided.
Internet Filtering: The Ineffectiveness Of Wto Remedies And The Availability Of Alternative Tort Remedies, 28 J. Marshall J. Computer & Info. L. 273 (2010),
2010
UIC School of Law
Internet Filtering: The Ineffectiveness Of Wto Remedies And The Availability Of Alternative Tort Remedies, 28 J. Marshall J. Computer & Info. L. 273 (2010), Kristen A. Knapp
UIC John Marshall Journal of Information Technology & Privacy Law
Empirical studies have shown that government Internet filtering is increasing worldwide. Internet Service Providers have progressively begun to take on filtering responsibility in a quasi-governmental capacity. As filtering has increased, some have begun to question whether Internet filtering might violate WTO commitments under the General Agreement on Trade in Services (“GATS Agreement”). This paper will provide technical background on how Internet filtering is accomplished in practice, and explain the GATS Agreement that was held to govern Internet filtering in the U.S.-Gambling Services decision. This paper will further survey the current range of U.S. filtering actions and detail why tort remedies …
A Production Theory Of Pure Economic Loss,
2010
University of Florida Levin College of Law
A Production Theory Of Pure Economic Loss, Robert J. Rhee
UF Law Faculty Publications
Although the pure economic loss rule has been remarkably durable in the common law, it suffers from a theoretical deficit. The rule has not been properly framed within the broader context of Anglo-American political economy. Any theory must recognize that the rule fundamentally deals with business risk and economic organization. Two conceptions of risk are important: risk to economic assets essential to the production function (loss of a factor of production), and risk to outcomes (loss of production). This Article proposes a production theory of the pure economic loss rule, which is rooted in the neoclassical economic understanding of the …
Response, The Still-Elusive Quest To Make Sense Of Veil-Piercing,
2010
Washington and Lee University School of Law
Response, The Still-Elusive Quest To Make Sense Of Veil-Piercing, David K. Millon
Scholarly Articles
This paper is an invited comment on Peter Oh's article "Veil-Piercing" published in the Texas Law Review. I make two points. First, I suggest that Oh's exhaustive analysis of the factors cited by courts to justify veil-piercing, like Robert Thompson's before it, does not actually tell us much about what is going on in the cases. For reasons that I explain, the asserted rationales cannot determine the results. Instead, vaguely articulated and poorly understand notions of policy and fairness drive decision making in this area. The law will continue to be obscure and results unpredictable until courts develop a clearer …
Tort Law Is State Law: Why Courts Should Distinguish State And Federal Law In Negligence-Per-Se Law,
2010
University of Memphis
Tort Law Is State Law: Why Courts Should Distinguish State And Federal Law In Negligence-Per-Se Law, Barbara Kritchevsky
American University Law Review
No abstract provided.
Defending The Majoritarian Court,
2010
American University Washington College of Law
Defending The Majoritarian Court, Amanda Frost
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Wyeth V. Levine: What Does It Mean And Where Do Pharmaceutical Companies Go From Here,
2010
University of Richmond
Wyeth V. Levine: What Does It Mean And Where Do Pharmaceutical Companies Go From Here, Clay Landa
Law Student Publications
Part II of this paper analyzes the history and background of federal preemption to give context to the current environment after Wyeth. Part III analyzes the Supreme Court‘s decision in Wyeth, holding that the FDCA and corresponding regulations do not preempt state tort claims. Finally, Part IV discusses and analyzes what drug makers may do now to continue to produce and market pharmaceuticals profitably while limiting their liability for state tort claims.
"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts,
2010
Northwestern University School of Law
"Controlling" Securities Fraud: Proposed Liability Standards For Controlling Persons Under The 1933 And 1934 Securities Acts, Nancy Staudt
Faculty Working Papers
This Student Note investigates the history and intent underlying the controlling person liability provisions of the 1933 and 1934 Securities Act. It notes that courts have adopted a ranges of standards for holding controlling persons liability, but whichever standard is chosen--that standard is applied to both Acts. This note argues that courts should impose unique liability standards for each statute in order to fully realize Congress' purpose in adopting the laws.
The "Bad Samaritan" Paradigm,
2010
Northwestern University School of Law
The "Bad Samaritan" Paradigm, Anthony D'Amato
Faculty Working Papers
This essay will attempt to show that the disparity between the rule of law and the dictates of morality is itself a product of the paradigmatic way in which the "Bad Samaritan" cases are analyzed. If we examine the cases in an entirely different way, many of the standard problems will dissolve and new alternatives will become apparent. The essay will also show that the "Bad Samaritan" paradigm is part of a larger paradigm linking the law of torts with the criminal law, which also needs to be reexamined. Finally a recommendation for dealing with the "Bad Samaritan" problem legislatively …
Green V. Alpharma, Inc.: The Causal Connection Between The Use Of Growth Hormones In Chicken Feed And Cancer And Its Impact On The Agricultural Industry,
2010
University of Kentucky
Green V. Alpharma, Inc.: The Causal Connection Between The Use Of Growth Hormones In Chicken Feed And Cancer And Its Impact On The Agricultural Industry, Sunni R. Harris
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
Punitive Damages And Class Actions,
2010
Duke Law School
Punitive Damages And Class Actions, Francis Mcgovern
Faculty Scholarship
The union of punitive damages and class actions can be aptly described with Samuel Johnson’s famous quotation regarding marriage: “The triumph of hope over experience.” By most conventional wisdom, there is little future for plaintiffs or defendants who desire to resolve punitive damages claims globally using the procedural vehicle of a class action. From a conceptual perspective, however, there are circumstances under which the union could function. This Article explores those possibilities, not in the spirit of normative support, but in the spirit of exploring theories that may have some prospective vitality. Notwithstanding the chilly reception that punitive damages class …
East Going West?: The Promise Of Assured Supply Laws In Modern Real Estate Development, 43 J. Marshall L. Rev. 319 (2010),
2010
UIC School of Law
East Going West?: The Promise Of Assured Supply Laws In Modern Real Estate Development, 43 J. Marshall L. Rev. 319 (2010), Lincoln L. Davies
UIC Law Review
No abstract provided.
What's All The Headache: Reform Needed To Cope With The Effects Of Concussions In Football,
2010
Cleveland State University
What's All The Headache: Reform Needed To Cope With The Effects Of Concussions In Football, Erika A. Diehl
Journal of Law and Health
In order to effectively manage this public health concern, it is imperative to gain an understanding of the issues surrounding head injuries in sporting events. This Note will discuss the increasing frequency and dangers of concussions in amateur and professional football. It will suggest that athletes, schools, coaches, and doctors must become more educated on the causes and dangers of concussions in order to ensure the safety of participants. In order to do so, this Note introduces a medical overview of concussions, while briefly outlining the diagnosis, long-term effects, and management of concussions. Part III discusses the legal theories athletes …
Innocent Threats, Concealed Consent And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law,
2010
The Catholic University of America, Columbus School of Law
Innocent Threats, Concealed Consent And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law, Marin Roger Scordato
Scholarly Articles
This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light …
The Heterogeneity Of The Value Of Statistical Life: Introduction And Overview,
2010
Vanderbilt University Law School
The Heterogeneity Of The Value Of Statistical Life: Introduction And Overview, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The refinement in worker fatality risk data used in hedonic wage studies and evidence from new stated preference studies have facilitated the exploration of the heterogeneity of the value of statistical life (VSL). Although the median VSL estimate for workers is $7-$8 million, the VSL varies considerably within the worker population. New estimates of the income elasticity of VSL are 1.0 or above, which are consistent with theoretical models linking VSL to the coefficient of relative risk aversion. The specific relationship between VSL and risk aversion is, however, more complex than previously understood. Age differences in VSL are substantial, with …
Torts As Wrongs,
2010
Harvard Law School
Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky
Faculty Scholarship
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …
Punitive Damages By Numbers: Exxon Shipping Co. V. Baker,
2010
Vanderbilt University Law School
Punitive Damages By Numbers: Exxon Shipping Co. V. Baker, Joni Hersch, W. Kip Viscusi
Vanderbilt Law School Faculty Publications
The U.S. Supreme Court decision in Exxon Shipping Co. v. Baker is a landmark that establishes an upper bound ratio of punitive damages to compensatory damages of 1:1 for maritime cases, with potential implications for other types of cases as well. This article critiques the Court’s reliance on the median ratio of punitive to compensatory damages in samples of verdicts to set an upper bound for punitive damages awards. Our critique of the approach draws on the properties of statistical distributions and a new analysis of cases with punitive damages awards. The Court’s conclusion that a 1:1 ratio establishes a …
The Conflict Between The Alien Tort Statute Litigation And Foreign Amnesty Laws,
2010
Vanderbilt University Law School
The Conflict Between The Alien Tort Statute Litigation And Foreign Amnesty Laws, Carlee M. Hobbs
Vanderbilt Journal of Transnational Law
Since the landmark case Filartiga v. Pena-Irala, foreign individuals have increasingly utilized the Alien Tort Statute to raise claims of human rights violations in the United States federal courts. Defendants, however, have alleged that principles of international comity necessitate dismissal of the suit when the foreign country in which the human rights violations occurred has granted defendants amnesty. While the doctrine of international comity permits dismissal if the case requires a federal court to adjudicate the internal affairs of a foreign country, the Supreme Court held, in Sosa v. Alvarez-Machain, that the Alien Tort Statue grants U.S. courts jurisdiction over …
Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury And Causation,
2010
University at Buffalo School of Law
Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury And Causation, David M. Engel
Journal Articles
Empirical studies of the tort law system suggest that "lumping, " or decisions by victims to do without adequate remedies, should be regarded as the predominant response to injury in American society and elsewhere. Yet research on lumping remains conceptually impoverished and gives insufficient attention to the culturalftameworks victims use to interpret their experiences and determine their responses. This Article presents the stories of injury victims in Thailand and compares their common-sense understandings of torts and tort law to those of injured Americans. It argues that analyses of lumping in America as well as Asia should take into account the …
The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law,
2010
Boston Univeristy School of Law
The Supreme Court's Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail Moncrieff
Faculty Scholarship
In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least four important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …
