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Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars 2018 University of Alabama School of Law

Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars

Indiana Law Journal

This Article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a fifty-state panel regression for 1981 to 2013, we find that states which allowed psychiatrists (but not other doctors) to be liable for malpractice resulting in suicide experienced a 9.3% increase in suicides. On the other hand, and more intuitively, holding non-psychiatrist doctors liable de-creases suicide by 10.7%. These countervailing effects can be explained ...


Bringing The Science Of Policing To Liability For Third-Party Crime At Shopping Malls, Aaron Twerski, John M. Shane 2018 Brooklyn Law School

Bringing The Science Of Policing To Liability For Third-Party Crime At Shopping Malls, Aaron Twerski, John M. Shane

Faculty Scholarship

No abstract provided.


Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams 2018 University of Texas School of Law

Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams

Michigan Law Review

A review of Don Herzog, Defaming the Dead.


For Whom The Statute Tolls? Not Even The Sacred Heart: Florida Class Action Jurisdiction And The Need For Savings Statute To Toll The Limitations Period, Laura Liles 2018 University of Florida Levin College of Law

For Whom The Statute Tolls? Not Even The Sacred Heart: Florida Class Action Jurisdiction And The Need For Savings Statute To Toll The Limitations Period, Laura Liles

Florida Law Review

Class actions are common litigation tools that plaintiffs use to efficiently adjudicate their rights. However, with the passage of the Class Action Fairness Act and the Florida Capacity to Sue statute, class plaintiffs could very quickly find their claims traveling from state to federal court, or simply being dismissed for lack of jurisdiction if originally filed in federal court. While this may not initially suggest an issue, CAFA and the Florida Capacity to Sue statute are creating tremendous traffic in federal courts. When considered with Florida’s strict application of the statute of limitations for class actions, a plaintiff’s ...


Into The Gray Zone: Examining Mutual Combat As A Defense To Domestic Assault, Kristi A. Breyfogle 2018 College of William & Mary Law School

Into The Gray Zone: Examining Mutual Combat As A Defense To Domestic Assault, Kristi A. Breyfogle

William & Mary Journal of Race, Gender, and Social Justice

For offenses committed under Virginia’s assault and battery against a household or family member statute, the State should prosecute and punish in cases where both parties committed an assault and battery. Punishment, however, should consist of mainly individualized counseling or some other mitigated punishment for cases of mutual fighting.


Campbell-Ewald Co. V. Gomez: Diminishing The Derivative Sovereign Immunity Doctrine And The Social Costs Of Increasing Liability To Government Contractors, W. Logan Lewis 2018 College of William & Mary Law School

Campbell-Ewald Co. V. Gomez: Diminishing The Derivative Sovereign Immunity Doctrine And The Social Costs Of Increasing Liability To Government Contractors, W. Logan Lewis

William & Mary Law Review

No abstract provided.


Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert Percival 2018 University of Pennsylvania Law School

Could Official Climate Denial Revive The Common Law As A Regulatory Backstop?, Mark P. Nevitt, Robert Percival

Faculty Scholarship at Penn Law

The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as litigants, including states and their political subdivisions, return to the common law to protect the health of the planet. Prior to the emergence of the major federal environmental laws in the 1970s, the common law of nuisance gave rise to the earliest environmental decisions in U.S. history ...


Modernizing The Emergency Medical Treatment And Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel 2018 Concordia University School of Law, Boise

Modernizing The Emergency Medical Treatment And Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel

Katharine Van Tassel

This Article will propose a very simple, two-step way to modernize EMTALA [Emergency Medical Treatment and Active Labor Act (1986)] to deal with this cascade of problems. This solution converts EMTALA into a powerful tool to enhance equal access to healthcare while at the same time changing EMTALA so that it works in tandem with, instead of against, the efforts of the Affordable Care Act, Medicare and Medicaid to improve healthcare quality, cost and equal access.

This solution also works across systems to resolve the conflict between the tort, licensure and hospital peer review systems that all discourage evidence-based treatment ...


The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel 2018 Concordia University School of Law, Boise

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel

Katharine Van Tassel

This Article discusses the public health, regulatory, legal, and ethical issues raised by the developing appreciation of the negative physical effects and potential health risks associated with nanotech products, and is arranged as follows. After this Introduction, this Article describes the present scientific understanding of the health risks associated with the consumption of nanoparticles. Next, a summary of the existing FDA regulatory structure that governs food, dietary supplements, cosmetics, and sunscreens is provided along with an explanation of why these regulations fail to protect public health when applied to regulate the nanotech versions of these products. The Article goes on ...


Genetically Modified Plants Used For Food, Risk Assessment And Uncertainty Principles: Does The Transition From Ignorance To Indeterminacy Trigger The Need For Post-Market Surveillance?, Katharine Van Tassel 2018 Concordia University School of Law, Boise

Genetically Modified Plants Used For Food, Risk Assessment And Uncertainty Principles: Does The Transition From Ignorance To Indeterminacy Trigger The Need For Post-Market Surveillance?, Katharine Van Tassel

Katharine Van Tassel

In the context of GM foods, a genetic modification changes the biochemical cross-talk between genes, creating genetic material that has never existed before in nature. This novel genetic material can create unintended health risks, as seen with the case of the GM peas that contained a novel and unexpected allergenic protein and primed test mice to react to other allergens.6 The bottom line is that the scientific acceptance of the existence of the networked gene establishes that the FDA’s presumption that GM plant food is bioequivalent to traditional plant food is no longer scientifically supportable and that a ...


Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel 2018 Concordia University School of Law, Boise

Blacklisted: The Constitutionality Of The Federal System For Publishing Reports Of "Bad" Doctors In The National Practitioner Data Bank, Katharine Van Tassel

Katharine Van Tassel

In order to highlight the problems with the NPDB [National Practitioner Data Bank], this Article compares physician blacklisting with other forms of blacklisting. For example, both physician and sexual predator blacklisting programs have the same goals: allowing the public to engage in self-protection by preventing “predators” from traveling to new locations to prey on a new group of unsuspecting victims. And both sexual predators and physicians suffer similar stigmatization as the result of the “badge of infamy” that comes with being blacklisted. But this is where the similarities end. Accused sex offenders get all of the trappings of due process ...


Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel 2018 Concordia University School of Law, Boise

Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel

Katharine Van Tassel

This Article starts with a history of the growth of hospital peer review and then examines the merits of the rationales that motivated the passage of the Health Care Quality Improvement Act of 1986 ('HCQIA'), which catapulted peer review into the national system that exists today. The Article next explains how the peer review hearing process works and how HCQIA turns private hospitals into small, individual quasi-regulatory agencies. The Article goes on to critique the 'bad apples' approach taken by hospital peer review in light of the growing body of empirical research that supports a systems improvement approach to dealing ...


Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel 2018 Concordia University School of Law, Boise

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians ...


Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel 2018 Concordia University School of Law, Boise

Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel

Katharine Van Tassel

This Article will use nanotechnology as an example that highlights how regulation based on novelty rather than hazard achieves the proper balance between protecting public health while encouraging innovation through the animation of the public health product safety net. In Part II, this Article starts by explaining what nanotechnology is and the remarkable growth of its use in everyday consumer products. It then summarizes the steadily increasing number of studies that suggest that there are likely to be serious health risks associated with the use of nanotech consumer products. Next, it explains how the FDA [Food and Drug Administration] is ...


The Introduction Of Biotech Foods To The Tort System: Creating A New Duty To Identify, Katharine Van Tassel 2018 Concordia University School of Law, Boise

The Introduction Of Biotech Foods To The Tort System: Creating A New Duty To Identify, Katharine Van Tassel

Katharine Van Tassel

This Article examines the question of whether an unsuspecting consumer who dies from an allergic or toxic reaction to an undisclosed biotech ingredient in food can recover damages through the tort system. The surprising answer is that recovery is very unlikely. This Article outlines why this is the case, then evaluates the merits of several potential solutions to this problem including the possible creation of a common law 'duty to identify' biotech ingredients in food.

This Article is arranged as follows. First, a brief primer on the nature of biotech foods is provided. For the reader unfamiliar with the regulatory ...


Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko 2018 Concordia University School of Law

Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko

Greg Sergienko

This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on ...


A Day In The Life Of Tort Law, Douglas H. Cook 2018 University of Maine School of Law

A Day In The Life Of Tort Law, Douglas H. Cook

Maine Law Review

What would one day's worth of tort law look like? We usually receive our doses of the law in measures other than per diem: by the case, by the brief, by the article, or by the treatise. There is, of course, a unity in each of those units; each one collects only those authorities that bear upon certain focused aspects of the law. For example, an appellate brief or a law review article is often a compendium of cases dealing within a narrow topical range, cases drawn from a span of many different days, years, or even decades. One ...


Taking Note Of Notary Employees: Employer Liability For Notary Employee Misconduct, Nancy Perkins Spyke 2018 University of Maine School of Law

Taking Note Of Notary Employees: Employer Liability For Notary Employee Misconduct, Nancy Perkins Spyke

Maine Law Review

The law of agency governs the relations between principals, agents, and third persons. A portion of that body of law deals with the liabilities that arise when an agent causes harm to a third party. Situations in which negligent employees cause harm to their employers' customers are ripe for the application of standard agency principles. Those principles dictate that the employer will be liable for the tort of an employee if the tort is committed in the scope of employment. The Restatement (Second) of Agency and case law provide many illustrations. If an employer directs an employee to perform a ...


Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten 2018 University of Michigan Law School

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no ...


Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven 2018 University of Michigan Law School

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that ...


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