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Comment On Avraham And Yuracko: Torts And The Paradox Of Conservative Justice, Gregory C. Keating 2016 University of Southern California

Comment On Avraham And Yuracko: Torts And The Paradox Of Conservative Justice, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

This paper comments on Ronen Avraham & Kim Yuracko, Torts and Discrimination forthcoming in the Ohio State Law Journal. Professors Avraham and Yuracko’s fine article, Torts and Discrimination, calls our attention to the fact that the entrenched fact of race and gender discrimination exerts a powerful, structural influence on tort damages, especially in bodily injury and wrongful death cases. Damages in tort—and in private law more generally—are reparative. Their role is to put the plaintiff in the position he would have been in but for the defendant’s wrong. Making the plaintiff whole requires that courts determine how ...


Products Liability As Enterprise Liability, Gregory C. Keating 2016 University of Southern California

Products Liability As Enterprise Liability, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

The prevailing wisdom about the rise of modern products liability law is framed by a debate which took place more than a generation ago. George Priest argued that modern American products liability law was born as enterprise liability incarnate and consequently ran amok in a nightmare of unlimited liability. Gary Schwartz countered that product liability law strict in name but fault-based in fact. Strict products liability was a revolution in rhetoric alone. To this day, these positions dominate our understanding of products liability law in its formative moment. We are long overdue for a fresh look. This paper argues that ...


Is Cost-Benefit Analysis The Only Game In Town?, Gregory C. Keating 2016 University of Southern California

Is Cost-Benefit Analysis The Only Game In Town?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Standards which prescribe more than efficient precaution against physical harm and health injury are commonplace in American environmental, health and safety regulation. The safe level standard, for example, requires the elimination of all significant risks. The feasibility standard requires the elimination of significant risks to the extent insofar as it is possible to do so without impairing the long run survival of the activities which give rise to the risks. These standards reach back more than a generation to the founding of the EPA and OSHA. You might think that they are too well-entrenched in American law to be subject ...


Like A Bad Neighbor; Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon 2016 Brooklyn Law School

Like A Bad Neighbor; Hackers Are There: The Need For Data Security Legislation And Cyber Insurance In Light Of Increasing Ftc Enforcement Actions, Jennifer Gordon

Brooklyn Journal of Corporate, Financial & Commercial Law

Privacy has come to the forefront of the technology world as third party hackers are constantly attacking companies for their customers’ data. With increasing instances of compromised customer information; the Federal Trade Commission (FTC) has been bringing suit against companies for inadequate data security procedures. The FTC’s newfound authority to bring suit regarding cybersecurity breaches; based on the Third Circuit’s decision in FTC v. Wyndham Worldwide Corp.; is a result of inaction—Congress has been unable to pass sufficient cybersecurity legislation; causing the FTC to step in and fill the void in regulation. In the absence of congressional ...


Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen 2016 University of Pennsylvania Law School

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply ...


See No Fiduciary, Hear No Fiduciary: A Lawyer’S Knowledge Within Aiding And Abetting Fiduciary Breach Claims, Brinkley Rowe 2016 Fordham University School of Law

See No Fiduciary, Hear No Fiduciary: A Lawyer’S Knowledge Within Aiding And Abetting Fiduciary Breach Claims, Brinkley Rowe

Fordham Law Review

Fiduciary liability for attorney conduct generally extends only to direct clients of legal services. Over the last few decades, however, the lawyer’s role has expanded. Following this trend, fiduciary liability also has expanded to allow third-party claims in certain limited circumstances. One example is the attorney aiding and abetting a client’s fiduciary breach claim. One of the key requirements for liability under this claim is the attorney’s knowledge of his client’s fiduciary relationship with the third party alleging the breach. Within those jurisdictions that have accepted the claim, there are two approaches to the knowledge element ...


Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West 2016 Fordham University School of Law

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West

Fordham Law Review

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger ...


Essay: Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron D. Twerski, Nina Farber 2016 Brooklyn Law School

Essay: Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron D. Twerski, Nina Farber

Brooklyn Law Review

This article challenges the traditional view of consent as a binary issue. Because “lack of consent” is an element of an intentional tort, courts do not apply comparative responsibility principles and therefore must find that plaintiff has either consented to the invasion of her person or not. In cases where consent is predicated on apparent consent or implied consent, however, the all–or-nothing approach to consent fails to take into account that both plaintiff and defendant may have been responsible for a miscommunication as to consent. This essay focuses on well-known cases and situations where both parties likely contributed to ...


Predicting Future Sources Of Mass Toxic Tort Litigation, Jeffrey A. Foran, Bernard D. Goldstein, John A. Moore, Paul Slovic 2016 University of New Hampshire

Predicting Future Sources Of Mass Toxic Tort Litigation, Jeffrey A. Foran, Bernard D. Goldstein, John A. Moore, Paul Slovic

RISK: Health, Safety & Environment

The authors describe the efforts of an expert working group to identify potential sources, over the next five to ten years, of future mass litigation and report on the group's consensus conclusions.


The Lawyer As Public Figure For First Amendment Purposes, Alex B. Long 2016 University of Tennessee College of Law

The Lawyer As Public Figure For First Amendment Purposes, Alex B. Long

Boston College Law Review

Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times Co. v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases ...


Extracting Medical Injury Information From The Legal System To Improve Patient Safety In The Health System: A Social Utility Approach, Mary Chaffee 2016 University of Massachusetts School of Law

Extracting Medical Injury Information From The Legal System To Improve Patient Safety In The Health System: A Social Utility Approach, Mary Chaffee

University of Massachusetts Law Review

As many as 400,000 people die each year, and a million are injured, by preventable medical injuries sustained in the U.S. health system. Collection of data to enhance understanding of how unintended medical injuries happen is an essential part of harm-reduction strategies. While health system data collection and reporting processes have improved in recent years, the scope and intractability of the medical injuries problem demands new efforts. The legal system could contribute valuable medical injury data to patient safety efforts but current practices largely prevent it. In medical malpractice claims where parties settle, case information is routinely protected ...


Negative Portrayal Of Vaccines By Commercial Websites: Tortious Misrepresentation, Donald C. Arthur 2016 University of Massachusetts School of Law

Negative Portrayal Of Vaccines By Commercial Websites: Tortious Misrepresentation, Donald C. Arthur

University of Massachusetts Law Review

Commercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites.


Trending @ Rwu Law: Deborah Johnson's Post: Now "Defamation" Matters More Than Ever 11-16-2016, Deborah Johnson 2016 Roger Williams University School of Law

Trending @ Rwu Law: Deborah Johnson's Post: Now "Defamation" Matters More Than Ever 11-16-2016, Deborah Johnson

Law School Blogs

No abstract provided.


[Review Of] Making Decisions About Liability And Insurance (Colin Camerer & Howard Kunreuther Eds.), Joseph M. Carreiro Jr. 2016 University of New Hampshire

[Review Of] Making Decisions About Liability And Insurance (Colin Camerer & Howard Kunreuther Eds.), Joseph M. Carreiro Jr.

RISK: Health, Safety & Environment

Review of: Making Decisions about Liability and Insurance (Colin Camerer & Howard Kunreuther eds., Kluwer Academic Publishers 1993). Figures, index, notes, tables. ISBN 0-7923-9393-7 [139 pp. Cloth $89.95. 101 Phillip Drive, Assinippi Park, Norwell MA 02061.1


[Review Of] National Research Council, Issues In Risk Assessment, Diane M. Albert 2016 University of New Hampshire

[Review Of] National Research Council, Issues In Risk Assessment, Diane M. Albert

RISK: Health, Safety & Environment

Review of: National Research Council, Issues in Risk Assessment (National Academy Press). Appendices, executive summary, figures, preface, references, tables. LC 92-61838; ISBN 0-309-04786-2. [374 pp. Paper $37.50 - S&H, $4 for first and $0.50 for each additional copy. 2101 Constitution Avenue, NW, Washington DC 20418.]


[Review Of] M. Stuart Madden, Toxic Torts Deskbook, Laura Marron 2016 University of New Hampshire

[Review Of] M. Stuart Madden, Toxic Torts Deskbook, Laura Marron

RISK: Health, Safety & Environment

M. Stuart Madden, Toxic Torts Deskbook (Lewis Publishers 1992). Acknowledgements, case index, general index, notes, preface. LC 91-48238; ISBN 0- 87371-508-X. [230 pp. Cloth $69.95 domestic, $84.00 elsewhere. 2000 Corporate Boulevard, NW, Boca Raton FL 33431.]Review of:


The Price Is Wrong: Reimbursement Of Expenses For Acquitted Criminal Defendants, Ira P. Robbins 2016 Selected Works

The Price Is Wrong: Reimbursement Of Expenses For Acquitted Criminal Defendants, Ira P. Robbins

Ira P. Robbins

No abstract provided.


Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper 2016 American University Washington College of Law

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Andrew Popper

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in ...


The Affordable Care Act Is Not Tort Reform, Andrew F. Popper 2016 Selected Works

The Affordable Care Act Is Not Tort Reform, Andrew F. Popper

Andrew Popper

On March 23, 2010, President Obama signed The Patient Protection and Affordable Care Act (PPACA). Prior to the enactment of the PPACA, Congress held several hearings focused on subrogation and relaxation of collateral source restrictions as well as caps on damages in an effort to promote tort reform. While the ACA included provisions on medical liability reform, the suggested tort reform was thwarted, and the ACA had no actual legal effect on limiting medical malpractice liability. This article argues that the reality is that the PPACA has done nothing to change the admissibility of collateral sources nor has it enhanced ...


Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper 2016 American University Washington College of Law

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Andrew Popper

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in ...


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