Law Commons^™

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky

UF Law Faculty Publications

This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …

Remediating Racism For Rent: A Landlord’S Obligation Under The Fha, Mollie Krent

Michigan Law Review

The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I …

Death Be Not Strange. The Montreal Convention’S Mislabeling Of Human Remains As Cargo And Its Near Unbreakable Liability Limits, Christopher Ogolla

Dickinson Law Review (2017-Present)

This article discusses Article 22 of the Convention for the Unification of Certain Rules for International Carriage by Air (“The Montreal Convention”) and its impact on the transportation of human remains. The Convention limits carrier liability to a sum of 19 Special Drawing Rights (SDRs) per kilogram in the case of destruction, loss, damage or delay of part of the cargo or of any object contained therein. Transportation of human remains falls under Article 22 which forecloses any recovery for pain and suffering unaccompanied by physical injury. This Article finds fault with this liability limit. The Article notes that if …

Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt

Law Librarian Scholarship

Deep pocket jurisprudence, where plaintiffs name corporations as codefendants of less wealthy individual tortfeasors, is not uncommon in tort litigation. When the plaintiffs are victims of gun violence and the corporate defendants are firearms manufacturers, however, these suits are particularly controversial. Instead of aiming to make the victims whole, these suits are opposed (or supported) as attempts to regulate the firearms industry on a widespread basis. This article explores some of the resources available to understand the recent history of suits against firearms manufacturers.

Felony Murder, Paul H. Robinson, Tyler Scot Williams

All Faculty Scholarship

It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

The Pharmaceutical Access And Prudent Purchasing Act Of 1990: Federal Law Shifts The Duty To Warn From The Physician To The Pharmacist, Michael J. Holleran R.Ph.

Akron Law Review

This article will first discuss the legislation recently enacted as part of the budget reduction package passed by Congress in late 1990 and how that legislation will affect pharmacists' liability. Second, the article will address the applicable statutes of limitation regarding pharmacists in particular and within the general area of malpractice. Third, the applicable standard of care will be explored as it pertains to pharmacists as well as physicians. Coupled with the standard of care discussion is an overview of the various theories of liability which physicians and pharmacists currently face and how these may change under the Act. Finally, …

Benevolent Maleficence:How A Well-Intentioned Legislature And A Deferential Court Combined To Stunt The Development Of Massachusetts Product Liability Law, Philip E. Cleary

University of Massachusetts Law Review

Massachusetts product liability law is unusual. Unlike most states, Massachusetts does not recognize strict tort liability in the product area. Rather, "strict product liability" is limited to breaches of warranty under Article 2 of the Uniform Commercial Code. the Massachusetts Legislature amended Article 2 in several ways to provide a "strict liability" remedy that is, in the words of the Massachusetts Supreme Judicial Court, "congruent in nearly all respects with the principles" of strict tort liability. The court has construed the amendments to the UCC as precluding the adoption of strict tort liability in Massachusetts. In most ways, Massachusetts product …

A Case For A Bill Recognizing Primary Assumption Of Risk As Limiting Liability For Persons And Providers Who Take Part In Sports & Recreational Activities, J. Russell Versteeg

University of Arkansas at Little Rock Law Review

No abstract provided.

Easton: The Birth Of Negligence In Real Estate Broker-Purchaser Relationships, Gilbert A. Partida

Pepperdine Law Review

No abstract provided.

Determining The Proper Pleading Standard Under The Private Securities Litigation Reform Act Of 1995 After In Re Silicon Graphics , Erin Brady

Pepperdine Law Review

No abstract provided.

The September 11th Victim Compensation Fund: The Answer To Victim Relief?, Joe Ward

Pepperdine Dispute Resolution Law Journal

The events of September 11, 2001 shook America to its core. The world was forever changed as the horrific tragedy unfolded on live television. Families were destroyed as loved ones were severely injured or killed, leaving spouses and children in need of aid. In response, the United States government established the September 11th Victims' Compensation Fund in an effort to provide the necessary reparations to victims of the terrorist attacks. This article will analyze the September 11th Victims' Compensation Fund (hereafter "Fund") as a way of compensating victims while preserving the financial stability of the United States economy. This Fund …

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

Articles

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons that are …

Railroad Law, Brent M. Timberlake

University of Richmond Law Review

No abstract provided.

Did Gebser Cause The Metastasization Of Sexual Harassment Under Title Ix Ten Years Later, Justin F. Paget

University of Richmond Law Review

This comment will evaluate the criticism of Gebser in two novelways, now that ten years have passed since the Supreme Court issued the decision. Part II will provide pertinent background information on Title IX. Part III will identify the problem sexual harassment in educational institutions poses for this country's youth. Part IV will discuss the development of Title IX sexual harassment jurisprudence, including the Gebser decision. Part V will address the foundation of the criticism fired at Gebser's adoption of an actual notice and deliberate indifference standard of institutional liability from two fresh perspectives. First, the policybehind agency principals will …

Health Care Law, Sean P. Byrne, Paul Walkinshaw

University of Richmond Law Review

Arguably, no other field of law in Virginia matches the complexity, magnitude, and universality of health care. It therefore comes as little surprise that Virginia's legislative and judicial branches of government devoted substantial attention to health care law issues in 2006 and 2007. Between April 2006 and April 2007 the time period covered by this article the Supreme Court of Virginia decided a large number of cases directly affecting health care law in the Commonwealth. The 2007 legislative session also addressed a host of health care issues and those with the most impact are summarized herein. These judicial and legislative …

Private Liability For Reckless Consumer Lending, John A. E. Pottow

Articles

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …

Labor And Employment Law, Thomas M. Winn Iii, Lindsey H. Dobbs

University of Richmond Law Review

No abstract provided.

Breed Specific Legislation: Unfair Prejudice And Ineffective Policy, Devin Burstein

Animal Law Review

This comment examines breed specific legislation—the unfortunate attempt of legislatures throughout the country to address the valid concern over vicious dog attacks by prohibiting or strictly regulating entire breeds, most often pitbulls. To prevent the tragedies that can occur when a dog attacks a human, legislation must take aim at the heart of the problem, the human owners that allow, through negligence or intentional mistreatment and training, these attacks to occur.

Labor And Employment Law, Thomas M. Winn Iii

University of Richmond Law Review

No abstract provided.

Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz

University of Michigan Journal of Law Reform

Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …

Osha Evidence In Federal Court Products Liability Actions: Too Prejudicial To Be Admissible To Prove A Machine's Safety Or Defect, Or Simply Additional Evidence For The Fact Finder?, Michael Siris

Touro Law Review

No abstract provided.

Allocation Of Loss Due To Fraudulent Wholesale Wire Transfers: Is There A Negligence Action Against A Beneficiary's Bank After Article 4a Of The Uniform Commercial Code?, Robert M. Lewis

Michigan Law Review

This Note argues that where a bank reasonably should have known of a fraud but still pays out a wire transfer to an unauthorized recipient, common law negligence should provide a basis for recovery despite the absence of an explicit Code provision imposing liability on the bank. Part I examines the UCC's language itself and analyzes possible cases, under 4A and under articles 3 and 4 by analogy, and discusses the applicability of these other parts of the UCC to wire transfers. Part II examines how extra-Code regulatory systems and the common law would determine wire transfer liability. Part II …

Goldstein's Curse, James J. White

Articles

ON April 16, 1980, a man using the name Marvin Goldstein opened a bank account at a Baltimore branch of Union Trust Company. He deposited $15,000 in cash. He told the branch manager that he planned to establish a Baltimore office of his father's New York business, "Goldstein's Precious Metals and Stones." Goldstein identified himself with a New Jersey driver's license and gave a bank reference from New York. On May 6, Goldstein deposited a check for $880,000 at another Union Trust branch near the branch where he had opened the account. Words on this check indicated that it was …

Claim Requirements Of The Federal Tort Claims Act: Minimal Notice Or Substantial Documentation?, Michigan Law Review

Michigan Law Review

This Note finds both the Adams and Swift positions unsatisfactory. Part I contends that Adams misconstrued the legislative history of the FTCA amendments by applying a minimal notice standard and then argues that Swift contravenes the amendments' fairness policy by permitting ambiguous, overreaching documentation requests. Part II contends that courts should interpret section 2675's "presented the claim" language as an accommodation between two competing Congressional objectives: presuit claims settlement and fair treatment of claimants. The Note proposes that until the Department of Justice modifies its current claims regulations, courts should toll the statute of limitations whenever an individual's claim includes …

A Uniform Comparative Fault Act--What Should It Prove?, John W. Wade

University of Michigan Journal of Law Reform

The Committee has determined to treat the resultant delay as serendipitous and to use it for the purpose of improving the Act and presenting it in the best shape possible. To this end, as the Chairman of the Special Committee, I have prepared this presentation for publication. The presentation is intended to serve two purposes: (1) to provide for the legal profession information as to the present status of the Act, and the provisions it now carries, and (2) to solicit criticisms and suggestions for improvement from interested persons.

I am therefore presenting here the Uniform Comparative Fault Act in …

No-Fault Automobile Insurance In Pennsylvania - A Constitutional Analysis, Joel M. Martel

Villanova Law Review

No abstract provided.

Private Insurance As A Solution To The Driver-Guest Dilemm, Harvey R. Friedman

Michigan Law Review

The duty of the driver of an automobile to his nonpaying passenger, and liability arising from the breach of that duty, has long presented a troublesome area of litigation for the courts and the parties involved. Application of standards unsuited for the peculiar risks of automotive transportation has produced inadequate compensation in some cases and excessive recoveries in others. Meanwhile, trial calendars are overcrowded with personal injury litigation, and insurance companies must bear the awards of sympathetic juries and those resulting from collusion between passenger and driver. The over-all expense of this method of determination of liability, far too little …

Pennsylvania's Good Samaritan Statute - An Answer To The Medical Profession's Dilemma, Joseph F. Busacca

Villanova Law Review

No abstract provided.

Atoms And The Law, E. Blythe Stason, Samuel D. Estep, William J. Pierce

Books

Early in 1951 a group of interested members of the faculty of The University of Michigan Law School conceived the idea of a research project, the purpose of which would be to investigate the principal unique legal problems being created and likely to be created in the future by peaceful uses of atomic energy. The group planned the preparation and publication of a series of manuscripts which might ultimately emerge as one or more printed volumes dealing with the legal problems affecting this new form of energy. Many phases of the subject were scrutinized, including the rule-making and licensing powers …