Law Commons^™

The Prosser Letters: 1917-1948, Christopher Robinette

Christopher J Robinette

Do Black Lives Matter?: Race As A Measure Of Injury In Tort Law, Alberto Bernabe

Alberto Bernabe

Civil Liability For Injuries Caused By Dogs After Tracey V. Solesky: New Path To The Future Or Back To The Past?, Alberto Bernabe

Alberto Bernabe

The Tort Foundation Of Duty Of Care And Business Judgment, Robert Rhee

Robert Rhee

This Article corrects a misconception in corporation law – the belief that principles of tort law do not apply to the liability scheme of fiduciary duty. A board’s duty of care implies exposure to liability, but the business judgment rule precludes it. Tort law finds fault; corporation law excuses it. The conventional wisdom says that the tort analogy fails. This dismissal of tort prinicples is wrong. Although shareholder derivative suits and ordinary tort cases properly yield systemically antipodal outcomes, they are bound by a common analytical framework. The principles of board liability are rooted in tort doctrines governing duty, customs, …

New Developments In The Illinois Law Of Contribution Among Joint Tortfeasors, 23 Loy. U. Chi. L.J. 407 (1992), Kenneth Kandaras

Kenneth Kandaras

No abstract provided.

Survey Of Illinois Law: Tort Developments, 17 S. Ill. U. L.J. 961 (1993), Kenneth Kandaras

Kenneth Kandaras

No abstract provided.

What Is Troubling About The Tortification Of Employment Discrimination Law?, William Corbett

William R. Corbett

No abstract provided.

Reflections On The Theory And Administration Of Strict Tort Liability For Defective Products, John Montgomery, David Owen

David Owen

No abstract provided.

Why Is Corrective Justice Just?, Emily Sherwin

Emily L Sherwin

No abstract provided.

Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, Emily Sherwin

Emily L Sherwin

Buried in the details of legal doctrine governing misrepresentation is a remedial anomaly that raises some interesting questions about how law should deal with moral wrongs such as fraud. We tend to think of deliberate deception--fraud--as a grave moral wrong. At least, we think of deception as gravely wrong when the deceiver's objective is not to avert harm or spare feelings, but to obtain someone's money or goods. Deception denies the autonomy of the person deceived and undermines the foundation of trust in human interaction. The law, however, does not penalize every instance of fraud. Moreover, the standards governing when …

Party Autonomy In Tort Theory And Reform, Christopher Robinette

Christopher J Robinette

Setting Parental Controls: Do Parents Have A Duty To Supervise Their Children’S Use Of The Internet?, Alberto Bernabe

Alberto Bernabe

Mental Disabilities And Duty In Negligence Law: Will Neuroscience Reform Tort Doctrine?, Jean Eggen

Jean M. Eggen

Recent developments in neuroscience may contribute to some long-needed changes in negligence law. One negligence rule in need of reform is the duty rule allowing physical disabilities to be considered in determining whether a party acted negligently, but disallowing mental disabilities for adult tortfeasors. Further, this bifurcated rule applies imposes an objective standard only on adults alleged to have acted negligently. A subjective standard applies to all parties in intentional torts and to children in negligence actions. Courts justify the bifurcated rule for adults on policy grounds, but these policy underpinnings are no longer valid in contemporary society. More accurate …

Suing The Third Party For Improvements To Land: Costello V Macdonald [2011] Ewca Civ 930; [2011] 3 Wlr 1341, Man Yip

Man YIP

No abstract provided.

Restitution For Victims Of Fraud: Skandinaviska Enskilda Banken Ab (Publ), Singapore Branch V Asia Pacific Breweries (Singapore) Pte Ltd, Man Yip

Man YIP

The Court of Appeal decision in Scandinaviska Enskilda Banken AB (Publ), Singapore Branch v. Asia Pacific Breweries (Singapore) Pte Ltd raised many issues of law, including those of agency, banking, tort and restitution. This note will focus on the restitutionary issues. The Court of Appeal was put in a tough spot of having to balance the justice between two victims of fraud and this may have resulted in a decision that puts the law of unjust enrichment in a difficult position. In APBS, the Court of Appeal has the unenviable task of going down a difficult path of balancing justice …

Underclaiming And Overclaiming, Sachin Pandya, Peter Siegelman

Peter Siegelman

Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Christopher Robinette

Christopher J Robinette

Medical Malpractice Reform Measures And Their Effects, Robert Leflar

Robert B Leflar

New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classified as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, “sorry” laws, disclosure and early offer laws, health courts, and safe harbor laws; and (3) major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems. Empirical evidence about the practical effects of already-implemented …

U.S. Business: Tort Liability For The Transnational Republisher Of Leaked Corporate Secrets, Richard Peltz-Steele

Richard J. Peltz-Steele

Wikileaks, the web enterprise responsible for the unprecedented publication of hundreds of thousands of classified government records, is reshaping fundamental notions of the freedom of information. Meanwhile more than half of records held by Wikileaks are from the private sector, and the organization has promised blockbuster revelations about major commercial players such as big banks and oil companies. This paper examines the potential liability under U.S. business-tort law for Wikileaks as a transnational republisher of leaked corporate secrets. The paper examines the paradigm for criminal liability under the Espionage Act to imagine a construct of civil liability for tortious interference …

Medical Malpractice Screening Panels: An Update And Assessment, Jean Eggen

Jean M. Eggen

No abstract provided.

Navigating Between Scylla And Charybdis: Preemption Of Medical Device “Parallel Claims”, Jean Eggen

Jean M. Eggen

The scope of federal preemption of state common law medical device claims has been vigorously debated since the Medical Device Amendments were enacted in 1976. Currently, a hot-button topic is the extent to which either express or implied preemption may bar state device claims that parallel duties imposed by the federal government’s Food, Drug, and Cosmetic Act. The author analyzes a selection of recent lower court cases in light of Congressional intent and Supreme Court precedent. This article provides some guiding principles to achieve greater consistency and predictability in parallel claim preemption decisions. The author then concludes that preemption doctrine …

The Part And Parcel Of Impairment Discrimination, Michelle Travis

Michelle A. Travis

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the …

Two Roads Diverge For Civil Recourse Theory, Christopher Robinette

Christopher J Robinette

Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury

Jean M. Eggen

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort …

Toward Positive Equality: Taking The Disparate Impact Out Of Disparate Impact Theory, Michelle Travis

Michelle A. Travis

Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as an essential and defining feature of antidiscrimination law. Just over a decade ago, however, Professor Mark Kelman launched an investigation into whether and why antidiscrimination law must or should make reference to group status. This Article extends that investigation into the disparate impact arena by exploring the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. This analysis reveals the value in considering a practice-conscious rather …

Giving Credit Where Credit Is Due: A Comment On The Theoretical Foundation And Historical Origin Of The Tort Remedy For Invasion Of Privacy, Alberto Bernabe

Alberto Bernabe

A Tale Of Two Ironies: In Defense Of Tort, David Partlett, William Gill

William Gill

Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating

Gregory C. Keating

Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the …

A Theory Of Discipline For Professional Misconduct, Nadia Sawicki

Nadia N. Sawicki

State medical boards derive their licensure and disciplinary authority from the police powers reserved to the states under the 10th Amendment. Though it is clear that public health, safety, and welfare are well-served by the educational and examination requirements uniformly imposed upon medical professionals, many medical practice acts also authorize discipline for professional misconduct that does not directly implicate clinical competence or patient safety - for example, being convicted of a felony or a crime of moral turpitude, failing to comply with a child support order, providing expert opinion to a court without reasonable investigation, ordering unnecessary laboratory tests, engaging …

Compliance With Advance Directives: Wrongful Living And Tort Law Incentives, Holly Lynch, Michele Mathes, Nadia Sawicki

Nadia N. Sawicki

Modern ethical and legal norms generally require that deference be accorded to patients' decisions regarding treatment, including decisions to refuse life-sustaining care, even when patients no longer have the capacity to communicate those decisions to their physicians. Advance directives were developed as a means by which a patient's autonomy regarding medical care might survive such incapacity. Unfortunately, preserving patient autonomy at the end of life has been no simple task. First, it has been difficult to persuade patients to prepare for incapacity by making their wishes known. Second, even when they have done so, there is a distinct possibility that …