Digital Commons Network^™

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Negotiating In The Shadow Of “Bad Faith” Refusal To Settle: A Game Theory Model Of Medical Malpractice Pre-Trial Settlements And Insurance Limits, Theodore H. Frank, Marie Gryphon

Theodore H. Frank

Recent empirical studies of Texas data by Hyman et al, Zeiler et al, and Silver et al suggest that insurance limits affect settlements of medical malpractice cases. Writing separately, Silver argues that insurance limits act as a de facto cap on malpractice payouts, that plaintiffs are being underpaid as a result, and that therefore legislative caps on damages are unnecessary. But this hypothesis is inconsistent with the data, which indicates that forty-seven percent of cases in which plaintiffs obtain verdicts above policy limits are subsequently settled above policy limits. We propose to reconcile the data by accounting for the effects …

How Do College And University Leaders Organize And Implement Policies Of Risk Management To Prevent Or Mitigate Institutional Liability?, Robert A. Campo

Robert A Campo

The goal of this research is to identify the methods,policies and procedures used by public and private college and university leaders to resolve conflicts, avoid court action, and limit risk factors that lead to institutional liabilty.In-depth, structured interviews of 30 higher educational leaders, including nine college/university presidents,17 vice-presidents,two university foundation presidents, and two in-house counsel were conducted regarding their perceptions of risk,appropriate means for reducing risk,crime prevention techniques,insurance protection including choices of deductibles,views on self insurance, crisis management, views on faculty termination, thoughts on tenure, ways to prevent sexual harassment, ways to maintain student discipline, views on accounting methods including …

Thwack!! Take That, User-Generated Content!: Marvel Enterprises, Inc. V. Ncsoft Corp., Carl M. Szabo

Carl M Szabo

Dear Madam or Sir: As seen in the attached note, I am to make two contributions. First, I address the issue of copyright liability of websites for infringement by the website users. A constant struggle as old as the constitution itself, the issue of copyright protection now makes its way into the virtual world of the internet. While the issue of copyright liability has been seen in hundreds of comments and notes from courts and attorneys alike, the issue of copyright liability on the internet remains an open question that if not addressed could endanger the protection afforded to authors …

Preserving Human Potential As Freedom: A Framework For Regulating Epigenetic Harms, Fazal Khan

Fazal Khan

Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development, and disease causation. In a sense, epigenetics blurs the distinction between “nature” and “nurture” as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents’ generation might affect our health now, even if we have not experienced the same exposures. In the same …

Preparing Students For The Global Practice Of Law While Managing Risk To The Institution: Law School Liability In The Context Of International Externship Programs, Kathleen M. Burch

Kathleen M Burch

The article fills a gap in the current scholarship by recognizing the need for international externship programs and by providing a legal framework for educational institutions, and law schools in particular, to assess the risks involved in the design and implementation of an international externship program. Section I of the article clarifies the current law on an institution’s duty to exercise reasonable care in minimizing reasonably foreseeable risks to its students and includes a discussion of the few cases where students have sued their educational institution for injuries received while participating in the institution’s study abroad program. Section II of …

Preparing Students For The Global Practice Of Law While Managing Risk To The Institution: Law School Liability In The Context Of International Externship Programs, Kathleen M. Burch

Kathleen M Burch

The article fills a gap in the current scholarship by recognizing the need for international externship programs and by providing a legal framework for educational institutions, and law schools in particular, to assess the risks involved in the design and implementation of an international externship program. Section I of the article clarifies the current law on an institution’s duty to exercise reasonable care in minimizing reasonably foreseeable risks to its students and includes a discussion of the few cases where students have sued their educational institution for injuries received while participating in the institution’s study abroad program. Section II of …

Preparing Students For The Global Practice Of Law While Managing Risk To The Institution: Law School Liability In The Context Of International Externship Programs, Kathleen M. Burch

Kathleen M Burch

The article fills a gap in the current scholarship by recognizing the need for international externship programs and by providing a legal framework for educational institutions, and law schools in particular, to assess the risks involved in the design and implementation of an international externship program. Section I of the article clarifies the current law on an institution’s duty to exercise reasonable care in minimizing reasonably foreseeable risks to its students and includes a discussion of the few cases where students have sued their educational institution for injuries received while participating in the institution’s study abroad program. Section II of …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

anna di robilant

This article deploys a comparative approach to question a widely-shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian “invention”, absent in the common law. Drawing on an influential strand of functionalist comparative law, the article identifies the “functional equivalents” of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late 19th and early 20th century in fields as diverse as water law, nuisance, tortious interference with contractual relations and labor law. The article investigates the reasons why …

Re-Thinking Liability For Vaccine Injury, Jeffrey A. Van Detta, Joanna B. Apolinsky

Jeffrey A. Van Detta

In April 2009, the first cases of the novel influenza A (H1N1) virus were detected in humans in the United States. To date, there have been 17,855 confirmed or probable cases of H1N1 infection and 45 deaths in the United States alone. More than 70 countries have now confirmed human infection with novel H1N1 flu. On June 11, 2009, the World Health Organization raised the worldwide pandemic alert level to Phase 6. At this time, as H1N1 is a new virus, there is little human immunity to it. Moreover, there is no vaccine to prevent the spread of the virus. …

Rethinking Liability For Vaccine Injury, Joanna B. Apolinsky, Jeffrey A. Van Detta

Joanna B Apolinsky

In April 2009, the first cases of the novel influenza A (H1N1) virus were detected in humans in the United States. To date, there have been 17,855 confirmed or probable cases of H1N1 infection and 45 deaths in the United States alone. More than 70 countries have now confirmed human infection with novel H1N1 flu. On June 11, 2009, the World Health Organization raised the worldwide pandemic alert level to Phase 6. At this time, as H1N1 is a new virus, there is little human immunity to it. Moreover, there is no vaccine to prevent the spread of the virus. …

How Can States Protect Their Policies In Federal Class Actions?, Lucas Watkins

Lucas Watkins

More than any other procedural device, class actions have substantive goals. By allowing negative-value suits and collective punishment for widespread wrongs, class actions allow plaintiffs and defendants to protect rights that would otherwise go unvindicated. States also use class actions to implement industrial and consumer protection policies. Despite their importance to state policy, however, many state class action rules do not survive the transition into the federal court system. Under the Erie doctrine, federal courts apply federal class action rules even when state rules are more permissive and even when the state rules are intended to serve important substantive policies. …

Litigation Realities Redux, Kevin M. Clermont

Cornell Law Faculty Publications

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.

Failure To Consider Human Rights Suits As A Potential Basis For Derivative Actions, Daniel Augustus Sansone Foe

Daniel Augustus Sansone Foe

Failure to Consider Human Rights Suits as a Potential Basis for Derivative Actions

This note proposes that in instances where corporate boards have knowingly or through their gross negligence allowed potentially costly human rights abuses to occur or where boards have failed to utilize appropriate monitoring standards to ensure compliance with human rights laws, they may be held to account for resulting losses to their shareholders in derivative actions.

In arriving at this proposition the note explores the current prospects for being held liable under the Alien Torts Statute (28 U.S.C. § 1350) and the direct and indirect costs associated …

Flying High And Falling Hard: How The Wisconsin Supreme Court’S Decision In Noffke V. Bakke Sheds New Light On The Application Of A Heightened Negligence Standard Between Co-Pariticpants In A Recreational Activity, Richard L. Campbell

Richard L Campbell Jr

This note examines the Wisconsin supreme court’s recent holding in Noffke v. Bakke. The Noffke court overruled the appellate court’s finding that co-participants engaged in cheerleading were subject to an ordinary negligence standard, finding instead that a statutorily imposed recklessness standard applied. In doing so, the Noffke court raised a number of important and interesting questions concerning the nature and current state of cheerleading – an activity that has evolved tremendously over the past two decades. The rapid evolution of cheerleading, and the difficulty in characterizing it as an activity or sport, competitive or non-competitive, contact or non-contact, has the …

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Low Probability/High Consequence Events: Dilemmas Of Damage Compensation, Richard O. Lempert

Law & Economics Working Papers Archive: 2003-2009

This article was prepared for a Clifford Symposium which challenged paper writers to imagine how our system of tort compensation might look in the year 2020. This paper responds to an aspect of the general challenge: to imagine a tort recovery system which would deal adequately with rare and catastrophic events. To get a handle on this problem, the paper looks closely at how the legal system compensated damages attendant on four recent events that might be considered “rare and catastrophic” – Three Mile Island, 9/11, Hurricane Katrina and the Exxon Valdez oil spill. In no case did the system …

"But He Told Me It Was Safe!": The Expanding Tort Of Negligent Misrepresentation., Alissa J. Strong

Alissa Strong

When more information is available, everyone benefits. Rather than having to rediscover basic wisdom at each crossroad, people can learn from one another’s actions, inactions, failures and successes. However, the availability of shared information is deeply threatened by laws and judicial doctrines that favor blind reliance on advice and then encourage suits against faulty information providers, if, in following the advice, the listener is harmed. One such law is the doctrine of negligent misrepresentation leading to physical harm as codified in the Restatement (Second) of Torts Section 311. Because it is largely written in broad language, it has been applied …

Design Defect Ghosts, David Owen

Faculty Publications

No abstract provided.

'That Belongs In A Museum!' Rubin V. Iran: Implications For The Persian Collection Of The Oriental Institute Of The University Of Chicago, Claire R. Thomas

Articles & Chapters

The purpose of this note is to argue that cultural property should be immune from plaintiffs’ rights to recovery and that it is legally and morally unjust for such property to be used to satisfy a legal judgment against a sovereign. In order to support this argument, this note will examine U.S. federal legislation, including the Foreign Sovereign Immunities Act (FSIA), as well as international conventions of the United Nations Educational, Scientific and Cultural Organization (UNESCO), which specifically call for international cooperation to protect cultural property. In addition, this note will demonstrate that since bills have been introduced in the …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Law And The Healthcare Crisis, John W. Hill

John W Hill Sr

The U.S. faces a healthcare crisis of monumental proportions with myriad facets including issues of access, quality, and affordability. Medical malpractice liability in this crisis is often alleged to play a role in this crisis through its impact on physician compensation and shortages. This study goes beyond the rhetorical arguments in exposing the root causes of the crisis to be the structure of healthcare delivery and physician compensation systems, in part using pooled data we develop. These systems greatly increase the cost of healthcare, lead to far too many medical errors, and skew the distribution of physicians across specialties, in …

The Relation Between Regulation And Class Actions: Evidence From The Insurance Industry, Eric Helland, Jonathan Klick

All Faculty Scholarship

Standard law and economics models imply that regulation and litigation serve as substitutes. We test this by looking at the incidence of insurance class actions as a function of measures of regulatory enforcement. We also look specifically at whether states with clear regulatory standards regarding the use of OEM parts experience less litigation over this issue. We find no evidence of substitution between regulation and litigation. We also examine the possibility that litigation is more frequent in states where regulators are more likely to be captured by industry interests, finding no support for this hypothesis either. Instead, litigation is more …

Thomas Paine And The Rights Of Man In European Jurisprudence: European Caselaw Confronts New York Times V. Sullivan : Different Results, Methods And Considerations: Time To Rethink Sullivan?∗, Allen E. Shoenberger

Allen E Shoenberger

The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. It is suggested that american courts should themselves weigh and evalue the facts of defamation (as the NYTimes ct did); and also consider whether justification should be demanded for opinion statements, free attorney appointments for public interest defendants in defamation cases, and consideration given to a sliding scale of defamatory review for public officials who hold non-elected, lower rank positions.

Hidden Engines Of Destruction, Andrea Matwyshyn

Andrea Matwyshyn

This article explores whether a duty to warn should exist in the context of digital products. It argues in favor of creating a “reasonable expectation of code safety.” Section I explains the dominant ways that digital products can harm consumers through their code and not their content, focusing on functionality and information security harms. Section II reviews existing regulation of digital products and highlighted their focus on improving information parity and consumer control over digital product relationships. Section II then sets forth the scope of the duty to warn and protect from harms in real space owed by possessors of …

Tort Damages And The New Science Of Happiness, Rick Swedloff, Peter H. Huang

Peter H. Huang

The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution. One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about …

Tainted Loans: Towards A Mass Torts Approach To Subprime Mortgage Litigation, Raymond H. Brescia

Raymond H Brescia

A poison has entered the financial bloodstream. The subprime mortgage crisis and the wider financial crisis it has spawned have caused the erosion of trillions of dollars in wealth, destroyed whole communities and the dislocation of millions of homeowners. Yet, unlike in other situations where toxic products have caused widespread harm, to date, we have not seen an avalanche of litigation, large jury awards, massive settlements compensating victims and financial ruin for the distributors of those products. Some of this is changing, however. Litigation arising out of the present financial crisis is hitting the courts, including suits alleging discrimination in …

What Is The Settlement Rate And Why Should We Care?, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates. Using data gathered from about 3,300 federal cases in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), differing measures of settlement emerge depending on whether one is interested in (1) settlement as a proxy for plaintiffs’ litigation success, or (2) settlement as a measure of litigated disputes resolved without final adjudication. Using settlement as a proxy for plaintiff success, we estimate the aggregate settlement rate across case categories in the two districts to …

“We, The Paparazzi”: Developing A Privacy Paradigm For Digital Video, Jacqueline Lipton

Jacqueline D Lipton

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

Smoking Out The Impact Of Tobacco-Related Decisions On Public Health Law, Micah Berman

Micah Berman

This article seeks to uncover and analyze the role that tobacco-related litigation has played in the evolution of public health law doctrine. Tobacco is a product – and public health problem – unlike any other. It is the only legal consumable product that kills approximately one-half of the people who consume it, and it cannot be used safely in moderation. These and other characteristics make tobacco use a highly unusual public health issue, and therefore courts addressing tobacco-related litigation have often streched or distorted precedents in order to accommodate the unique exigencies of such cases. In turn, these decisions have …