Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, Fernanda G. Nicola
Fernanda G. Nicola
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 ...
An Opt-In Option For Class Actions, 2016 UC Hastings College of the Law
An Opt-In Option For Class Actions, Scott Dodson
Michigan Law Review
Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or ...
It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, 2016 University of Michigan Law School
It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke
University of Michigan Journal of Law Reform
In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework ...
Resolving The Divided Patent Infringement Dilemma, 2016 Terry College of Business, University of Georgia
Resolving The Divided Patent Infringement Dilemma, Nathanial Grow
University of Michigan Journal of Law Reform
This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly ...
The Strict Liability In Fault And The Fault In Strict Liability, 2016 Harvard Law School
The Strict Liability In Fault And The Fault In Strict Liability, John C.P. Goldberg, Benjamin C. Zipursky
Fordham Law Review
Tort scholars have long been obsessed with the dichotomy between strict liability and liability based on fault or wrongdoing. We argue that this is a false dichotomy. Torts such as battery, libel, negligence, and nuisance are wrongs, yet all are “strictly” defined in the sense of setting objective and thus quite demanding standards of conduct. We explain this basic insight under the heading of “the strict liability in fault.” We then turn to the special case of liability for abnormally dangerous activities, which at times really does involve liability without wrongdoing. Through an examination of this odd corner of tort ...
The Compatibility Of Forward-Looking And Backward-Looking Accounts Of Tort Law, 2016 University of New Hampshire
The Compatibility Of Forward-Looking And Backward-Looking Accounts Of Tort Law, Michael Pressman
University of New Hampshire Law Review
This Article is the first to argue that forward-looking and backward-looking accounts of tort law are intrinsically compatible with one another. This theoretical point is of great importance and will bring about a paradigm shift in tort theory—and, more generally, in legal theory. This is because the long-standing debate between corrective justice theorists and economic theorists about the purpose of tort law (with active participants including Posner, Calabresi, Coleman, Weinrib, Rawls, and countless others) is based on the universal assumption that forward-looking and backward-looking accounts of tort law are incompatible. This assumption, however, is false, and this Article explains ...
Realigning The Governmental/Proprietary Distinction In Municipal Law, 2016 Seattle University School of Law
Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer
Seattle University Law Review
Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain ...
Private Law In The Gaps, 2016 Notre Dame Law School
Private Law In The Gaps, Jeffrey A. Pojanowski
Jeffrey A. Pojanowski
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a ...
A Process Theory Of Torts, 2016 Notre Dame Law School
A Process Theory Of Torts, Jay Tidmarsh
No abstract provided.
Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, 2016 Notre Dame Law School
Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Douglass Cassell
No abstract provided.
Valdez V. City Of New York: The "Death Knell" Of Municipal Tort Liability?, 2016 St. John's University School of Law
Valdez V. City Of New York: The "Death Knell" Of Municipal Tort Liability?, Alisa M. Benintendi
St. John's Law Review
No abstract provided.
A Study Of The Costs Of Legal Services In Personal Injury Litigation In Ontario: Final Report, 2016 Osgoode Hall Law School of York University
A Study Of The Costs Of Legal Services In Personal Injury Litigation In Ontario: Final Report, Allan C. Hutchinson
Commissioned Reports, Studies and Public Policy Documents
Contingency Fee Agreements (CFAs) are now a fixed feature of the Ontario litigation landscape. However, little research or study has been done on exactly how they operate in practice, whether they advance the objectives that they were intended to achieve, and whether litigants are best served by the current arrangements. In this study, I intend to make a preliminary start to that research, set out some tentative criticisms of the CFA system as it currently operates, and, where appropriate, suggest preliminary proposals for change.
It should be said at the outset that my efforts to obtain real and serious data ...
Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, 2016 University of Maine School of Law
Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins
Washington and Lee Law Review Online
Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors ...
Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, 2016 University of Georgia School of Law
Ebola, Experimental Medicine, Economics, And Ethics: An Evaluation Of International Disease Outbreak Law, Sara L. Dominey
Georgia Journal of International & Comparative Law
No abstract provided.
Civil Conspiracy In The Corporate Context, 2016 Singapore Management University
Civil Conspiracy In The Corporate Context, Pey Woan Lee
Research Collection School Of Law
This article examines the issues that arise when the tort ofconspiracy by unlawful means is used, as an alternative to veil-piercing,either to extend a company’s liability to its controllers, or to enable acontroller’s creditors to reach the assets of company under his or her control.It observes that the tort of conspiracy is a particularly potent mechanism forthese purposes because of its potentially broad reach. A liberal application ofconspiracy liability to companies and their insiders would therefore underminethe company’s separate legal status as well as the benefits of incorporation.For that reason, the application of the ...
Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark
Anthony J. Bellia
From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit's recent ruling ...
The Alien Tort Statute And The Law Of Nations, 2016 Notre Dame Law School
The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia
Anthony J. Bellia
Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004 ...
Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, 2016 Notre Dame Law School
Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, Roger P. Alford
Roger P. Alford
With the new wave of claims against corporations for human rights violations – particularly in the context of aiding and abetting government abuse – there are unusually difficult problems of joint tortfeasor liability. In many circumstances, one tortfeasor – the corporation – is a deep-pocketed defendant, easily subject to suit, but only marginally involved in the unlawful conduct. Another tortfeasor – the sovereign – is a central player in the unlawful conduct, but, with limited exceptions, is immune from suit under the Foreign Sovereign Immunities Act. A third tortfeasor – the low-level security personnel – accused of actually committing the atrocity, is beyond the jurisdictional reach of the ...
Protecting Economic Interests Through The Nominate Tort Action For Breach Of Statutory Duty, 2016 University of Newcastle, NSW, Australia
Protecting Economic Interests Through The Nominate Tort Action For Breach Of Statutory Duty, Neil J. Foster
Neil J Foster
Applying Domestic Statutes To Foreign Conduct: How Much Does Kiobel Touch And Concern The Presumption Against Extraterritorial Application, 2016 University of Miami Law School
Applying Domestic Statutes To Foreign Conduct: How Much Does Kiobel Touch And Concern The Presumption Against Extraterritorial Application, Jessica Neer Mcdonald
University of Miami Inter-American Law Review
This paper examines a tumultuous history of applying United States law to foreign conduct in United States federal courts and the impact of recent Supreme Court decisions in this area. Despite its inconsistent application, the presumption against extraterritorial application may bridle Article III courts’ authority of applying domestic law to foreign conduct. Notably, a complicated test of displacing the presumption has emerged from the recent Supreme Court case of Kiobel v. Royal Dutch Petroleum Co., which concerned foreign conduct under the Alien Tort Statute (“ATS”). The test states the presumption is overcome if the foreign conduct “touches and concerns” the ...