Law Commons^™

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, In Symposium, The John W. Wade Conference On The Third Restatement Of Torts, Richard W. Wright

All Faculty Scholarship

Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying …

Once More Into The Bramble Bush: Duty, Causal Contribution, And The Extent Of Legal Responsibility, In Symposium, The John W. Wade Conference On The Third Restatement Of Torts, Richard W. Wright

Richard W. Wright

Courts, lawyers, law students, and academics continue to confuse the empirical issue of causal contribution with the distinct normative issues of tortious conduct and legal injury, which precede and frame the causal-contribution inquiry, and the normative issue of the extent of legal responsibility for tortiously caused consequences, which follows the causal-contribution inquiry. In a number of prior articles, I have tried to distinguish and clarify these various issues, which arise not only in tort law, but also in much the same form in criminal law and many other areas of the law. I have focused primarily on distinguishing and clarifying …

The Admissibility Of Differential Diagnosis Testimony To Prove Causation In Toxic Tort Cases: The Interplay Of Adjective And Substantive Law, Joseph Sanders, Julie Machal-Fulks

Law and Contemporary Problems

This article uses the differential diagnosis opinions to explore a pair of interrelationships. The basic causal framework employed by most courts in toxic tort cases is presented. A key to understanding the developing case law in this area is to appreciate the degree to which the courts have adopted the interpretive conventions of science in assessing admissibility.

Too Many Probabilities: Statistical Evidence Of Tort Causation, David W. Barnes

Law and Contemporary Problems

Medical scientific testimony is often expressed in terms of two different probabilities: 1. The increased probability of harm if a person is exposed, for example, to a toxin. 2. The observed relationship is an artifact of the experimental method. This article demonstrates that neither probability, taken alone or together, measures whether the "preponderance of the evidence" test is met.

Student Article: Market Forces And The Rule Of Law As A Means Of Improving The Quality Of Life In Sub-Saharan Africa: Ghana, A Case Of Critical Analysis, Paul Sergius Koku

University of Miami International and Comparative Law Review

No abstract provided.

Scientific Models Of Human Health Risk Analysis In Legal And Policy Decisions, Douglas Crawford-Brown

Law and Contemporary Problems

The quality of scientific predictions of risk in the courtroom and policy arena rests in large measure on how the two differences between normal practice and the legal/policy practice of science are reconciled. This article considers a variety of issues that arise in reconciling these differences, and the problems that remain with scientific estimates of risk when these are used in decisions.

The Externality Of Victim Care, Alan J. Meese

Faculty Publications

No abstract provided.

The Swine Flu Vaccine And Guillain-Barré Syndrome: A Case Study In Relative Risk And Specific Causation, David A. Freedman, Philip B. Stark

Law and Contemporary Problems

This article discusses the role of epidemiologic evidence in toxic tort cases, focusing on relative risk. Whether specific causation can be inferred if a relative risk is above 2.0 is discussed. The object is to explore the scientific logic behind intuitions of relative risk.

Scientific Ignorance And Reliable Patterns Of Evidence In Toxic Tort Causation: Is There A Need For Liability Reform?, Carl F. Cranor, David A. Eastmond

Law and Contemporary Problems

As a first step to preserving the central aims of tort law, courts will need to recognize the wide variety of respectable, reliable patterns of evidence on which scientists themselves rely for drawing inferences about the toxicity of substances. Courts may also need to take further steps to address the woeful ignorance about the chemical universe. This may necessitate changes in the liability rules.

Causation And The Law: Preemption, Lawful Sufficiency, And Causal Sufficiency, Richard Fumerton, Ken Kress

Law and Contemporary Problems

This article briefly describes the normative/nonnormative distinction, and how one might invoke this distinction to locate a nonnormative dimension of actual causation. After briefly introducing Richard Wright's concept of a necessary element in a set of conditions for an effect, the article notes ambiguities in the critical concepts of necessity and sufficiency that he deploys. The article suggests the most plausible interpretation of Wright's use of different modal concepts.

Causation, Contribution, And Legal Liability: An Empirical Study, Lawrence M. Solan, John M. Darley

Law and Contemporary Problems

This article presents empirical evidence of the ways people compare judgments of liability with judgments of causation and contribution. Specifically, the article reports the results of experiments designed to show whether people regard causation and enablement as necessary elements of liability.

Revisiting The Taxation Of Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

In our recent article, Taxing Punitive Damages, available at http://ssrn.com/abstract=1421879, we argued (1) that plaintiffs in punitive damages cases should be allowed to introduce to the jury evidence regarding the deductibility of those damages by defendants, and (2) that this jury tax-awareness approach is better than the Obama Administration’s suggested alternative of disallowing those deductions.

To our delight, Professor Larry Zelenak and Paul Mogin have each provided published comments to our piece on Virginia Law Review's In Brief companion website. Professor Zelenak’s thoughtful response focuses on our prescriptive claim that jury tax-awareness is better than nondeductibility, while Mr. Mogin disputes …

The Continuous Treatment Rule: Ameliorating The Harsh Result Of The Statute Of Limitations In Medical Malpractice Cases, Melanie Fitzgerald

South Carolina Law Review

No abstract provided.

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

Faculty Publications

Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. Indeed, the assertion that tort law and insurance law are intertwined is utterly unremarkable; many commentators have observed that tort law cannot be understood if the business of insurance and the law regulating it is ignored, and that insurance law cannot be understood if tort law is ignored. Several generations of law students have read casebooks, which in varying degrees pay homage to the connections between torts and insurance. Many law review articles and noteworthy books (or portions thereof) have plumbed the tort-insurance relationship. Although one …

Another Factor In The "Decisional Calculus": The Learned Intermediary Doctrine, The Physician-Patient Relationship, And Direct-To-Consumer Marketing, Jeffrey J. Wiseman

South Carolina Law Review

No abstract provided.

Simmons V. Tuomey Regional Medical Center: The New South Carolina Rule On Hospital Liability For Malpractice Of Emergency Room Physicians, Mary D. Stuart

South Carolina Law Review

No abstract provided.

Stigma Damages: Defining The Appropriate Balance Between Full Compensation And Reasonable Certainty, Jennifer L. Young

South Carolina Law Review

No abstract provided.

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

UF Law Faculty Publications

Teachers, scholars and practitioners have long appreciated the symbiotic relationship of torts and insurance. The authors examine how the study of torts is enriched when insurance concepts play a role in students' analysis. The discussion is divided into two parts. Part I offers a "macro" perspective on the connections between tort and insurance, summarizing the principal issues in play when the purposes of tort law are analyzed against the backdrop of first-party and third-party insurance compensation mechanisms. Part II provides a "micro" perspective on tort-insurance connections, taking a sample of discrete tort law principles, representative of those discussed in a …

Learning To Swim: A Law Student’S Introduction To Functional Thinking In Torts, Nathanael R. Berneking

Saint Louis University Law Journal

No abstract provided.

Introduction To The Law Of Torts, Joseph W. Little

Saint Louis University Law Journal

No abstract provided.

Teaching Torts Through Exercises On Drafting Verdict Forms, Robert E. Keeton

Saint Louis University Law Journal

No abstract provided.

Teaching Torts Without Insurance: A Second-Best Solution, David A. Fischer, Robert H. Jerry Ii

Saint Louis University Law Journal

No abstract provided.

The Trouble With Negligence, Kenneth S. Abraham

Vanderbilt Law Review

The concept of negligence dominates tort law. Most tort cases are about negligence. Much tort law scholarship over the past several decades has been about the meaning of negligence. The new draft Restatement (Third) of Torts: General Principles ("Discussion Draft") devotes the vast majority of its first volume to negligence. And the idea of negligence as a liability standard is highly attractive to both the courts and commentators.

All the attention that negligence receives is not surprising, given the unattractiveness of the alternatives. Imposing liability only when the injurer intended harm seems unduly limited, in that it absolves injurers of …

The Restatement Of Torts And The Courts, Jack B. Weinstein

Vanderbilt Law Review

Primarily through tort law the courts compensate those injured by others. Secondary aspects of our work such as deterrence or forcing tortfeasors to pay the full social costs of their activities are minor and collateral. For jurors focusing on compensation, tort law has only two operative elements: damage and cause. It is the law professor and the judge, through decisions on motions and instructions, who are the main Restatement consumers. Emphasizing mass torts, I will make three points relevant to those considering the health of tort law.

First: Tort law in its least inhibitory principle is useful be- cause of …

Cost-Benefit Analysis And The Negligence Standard, Stephen R. Perry

Vanderbilt Law Review

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles' work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I …

Restatement (Third) Of Torts: General Principles And The Prescription Of Masculine Order, Anita Bernstein

Vanderbilt Law Review

Until April 1999, when it published a draft called Restatement (Third) of Torts: General Principles ("General Principles"), the American Law Institute ("ALI") had never purported to declare the "general principles" of anything.' This lack of precedent meant a blank slate: Reporters can carry out a general-principles mandate in varying ways. One contributor to this Conference, David Owen, has spoken elsewhere of "paths taken and untaken in the Restatement (Third)" to describe choices about products liability rules. Professor Owen has perceived these divergences as wide and profound. In the General Principles, which strive to speak about all of Torts rather than …

Introduction: The Third Restatement Of Torts: General Principles And The John W. Wade Conference, John C.P. Goldberg

Vanderbilt Law Review

The American Law Institute ("ALT") is in the midst of constructing the Restatement (Third) of Torts. Two parts of the project have already been completed and published as, respectively, the Restatement (Third): Products Liability and the Restatement (Third): Apportionment of Liability. The next component, a Restatement of the "General Principles" of tort, is underway. The goal for this facet of the overall project is to provide a coherent and usable account of fundamental tort concepts including intent, negligence, duty, actual and proximate cause, abnormally dangerous activity, and the like.

Deterring Player Holdouts: Who Should Do It, How To Do It, And Why It Has To Be Done, Basil M. Loeb

Marquette Sports Law Review

No abstract provided.

A Tale Of Two Concurrences: Same Sex Marriage And Products Liability, John Culhane

John G. Culhane

No abstract provided.

Tobacco Tort Litigation In California: A Better Understanding Of Civil Code Section 1714.45, Stephen D. Sugarman

San Diego Law Review

Before 1963, lawsuits in California by victims of product injuries were either handled under principles of negligence or they were cast as contract claims that drew on “implied warranty” principles.8 For example, if someone bought a loaf of bread from a local bakery, took a bite out of the loaf, and it turned out that a sharp pin hidden in the bread injured the person, the victim could sue the bakery (1) in tort, claiming that the bakery negligently allowed the pin to get into the bread, or (2) in contract, claiming that in providing this sort of bread the …