Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
- Publication
-
- Neil J Foster (9)
- Christopher C. French (5)
- Christopher J Robinette (5)
- Oscar S. Gray (5)
- Nancy Kim (3)
-
- Peter Zablotsky (3)
- Susan Raeker-Jordan (3)
- Taunya Lovell Banks (3)
- Donald J. Kochan (2)
- Jean M. Eggen (2)
- Marie T. Reilly (2)
- Mary Kate Kearney (2)
- Randy Lee (2)
- A. Michael Froomkin (1)
- Alan J. Meese (1)
- Alex Stein (1)
- Bailey H. Kuklin (1)
- Bruce L. Beverly (1)
- Caroline A Forell (1)
- Christopher J. Roederer (1)
- Daniel B. Yeager (1)
- Danielle Keats Citron (1)
- David E. DePianto (1)
- David Kaye (1)
- Doug Rendleman (1)
- Jacob L. Todres (1)
- Jay Tidmarsh (1)
- Jeffrey A. Pojanowski (1)
- John D. McCamus (1)
- John G. Culhane (1)
Articles 1 - 30 of 82
Full-Text Articles in Law
The Externality Of Victim Care, Alan J. Meese
A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney
A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney
Susan S. Fortney
Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …
The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel
The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel
Katharine Van Tassel
This Article discusses the public health, regulatory, legal, and ethical issues raised by the developing appreciation of the negative physical effects and potential health risks associated with nanotech products, and is arranged as follows. After this Introduction, this Article describes the present scientific understanding of the health risks associated with the consumption of nanoparticles. Next, a summary of the existing FDA regulatory structure that governs food, dietary supplements, cosmetics, and sunscreens is provided along with an explanation of why these regulations fail to protect public health when applied to regulate the nanotech versions of these products. The Article goes on …
It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen
It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen
Jean M. Eggen
Private Law In The Gaps, Jeffrey A. Pojanowski
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 regulatory …
A Process Theory Of Torts, Jay Tidmarsh
Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus
Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus
John D. McCamus
In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …
Probability Theory Meets Res Ipsa Loquitor, David H. Kaye
Probability Theory Meets Res Ipsa Loquitor, David H. Kaye
David Kaye
Day in and day out, attorneys, judges, and jurors must estimate probabilities. To be sure, we rarely quantify such estimates of probability and almost never adopt the terminology and mathematics of probability theory to resolve matters. Nevertheless, the mathematical theory of probability can be applied to legal problems in various ways. This article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. While not urging that jurors be instructed in probability theory or be equipped with microprocessors, it does seek an accurate statement of the res ipsa doctrine …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Doug Rendleman
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
What Types Of Losses Are Recoverable Under Arkansas' Products Liability Law, Rodney A. Smolla
What Types Of Losses Are Recoverable Under Arkansas' Products Liability Law, Rodney A. Smolla
Rod Smolla
Not available.
A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly
A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly
Marie T. Reilly
This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further …
Making Sense Of Successor Liability, Marie T. Reilly
Making Sense Of Successor Liability, Marie T. Reilly
Marie T. Reilly
A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Timothy D. Lytton
This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …
Vicarious Liability And Non-Delegable Duty In Common Law Actions Based On Institutional Child Abuse, Neil J. Foster
Vicarious Liability And Non-Delegable Duty In Common Law Actions Based On Institutional Child Abuse, Neil J. Foster
Neil J Foster
The paper discusses the options for holding institutions civilly liable for child sexual abuse. In particular it suggests that the law of non-delegable duty ought to be extended to intentional torts like battery.
Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson
Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson
Sara L Crewson
Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …
Trends In The Efficacy Of Parental Alienation Allegations In Child Custody Cases And Their Implications For Tortious Action, Bruce L. Beverly
Trends In The Efficacy Of Parental Alienation Allegations In Child Custody Cases And Their Implications For Tortious Action, Bruce L. Beverly
Bruce L. Beverly
As the second of a series, this paper attempts to further explore the phenomenon of parental alienation in domestic relations cases by exploring the often frustrating position that many courts take with regard to blatant and obvious violations of the fundamental rights of parents to raise and know their children. Ofttimes, where courts have found the most blatant interference and harmful manipulation by one parent of the other parent's formerly close relationship with a child, the court either forces a detrimentally aligned child into the custody of the wrongfully vilified parent, thereby harming possible the child and that injured parent, …
Is An Apartment A Nuisance?, Michael Lewyn
Is An Apartment A Nuisance?, Michael Lewyn
Michael E Lewyn
In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.
Tort As Democracy: Lessons From The Food Wars, Melissa D. Mortazavi
Tort As Democracy: Lessons From The Food Wars, Melissa D. Mortazavi
Melissa Mortazavi
The Transformation Of South African Private Law After Twenty Years Of Democracy, 14 Nw. J. Int’L Hum. Rts. (Forthcoming 2016)., Christopher J. Roederer
The Transformation Of South African Private Law After Twenty Years Of Democracy, 14 Nw. J. Int’L Hum. Rts. (Forthcoming 2016)., Christopher J. Roederer
Christopher J. Roederer
In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …
The Neglected Tort — Breach Of Statutory Duty And Workplace Injuries Under The Model Work Health And Safety Law, Neil J. Foster, Ann E. Apps
The Neglected Tort — Breach Of Statutory Duty And Workplace Injuries Under The Model Work Health And Safety Law, Neil J. Foster, Ann E. Apps
Neil J Foster
The tort of ‘breach of statutory duty’ (BSD) operates at the intersection of private and public law by providing a civil remedy for those whose injuries were sustained as a consequence of a statutory breach. One of the areas where the tort has clear relevance is the area of work health and safety, with the courts almost invariably holding that the breach of a statute primarily designed to protect workers from injury will provide them with a civil remedy as well as having criminal law consequences. The tort continues to be recognised in this area at the highest judicial level …
Dualism And Doctrine, Alex Stein, Dov Fox
Dualism And Doctrine, Alex Stein, Dov Fox
Alex Stein
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan
Donald J. Kochan
The Role Of The Profit Imperative In Risk Management, Christopher French
The Role Of The Profit Imperative In Risk Management, Christopher French
Christopher C. French
Website Proprietorship And Online Harassment, Nancy Kim
Website Proprietorship And Online Harassment, Nancy Kim
Nancy Kim
Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content. Given the unique nature of online harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon …
Imposing Tort Liability On Websites For Cyber Harassment, Nancy Kim
Imposing Tort Liability On Websites For Cyber Harassment, Nancy Kim
Nancy Kim
Several female law students were the subject of derogatory comments on AutoAdmit.com, a message board about law school admissions. When one of the women asked the website administrator to remove certain comments, the administrator discussed her request in an online post, prompting further attacks. An undergraduate student’s rape was revealed on a gossip site, JuicyCampus.com, where posters engaged in a cruel session of “blame the victim.” Another student on that site was falsely identified, by name, as being a stalker, bi-polar, and suicidal. When officials at her university asked JuicyCampus.com to remove the most egregious posts, the company refused. These …
Website Design And Liability, Nancy Kim
Website Design And Liability, Nancy Kim
Nancy Kim
Two regrettable behaviors have emerged online: the posting of content about others without their consent; and impulsive postings with no consideration of long-term consequences. Website operators can either encourage or discourage these regrettable behaviors and influence their consequences through the design of their website and by the fostering of norms and codes of conduct. Unfortunately, courts interpret section 230 of the Communications Decency Act as providing websites with broad immunity. In an earlier article, I argued that a proprietorship standard should be imposed upon websites, which would require them to take reasonable measures to prevent foreseeable harm. This article further …
Self-Defense Against Robots, A. Michael Froomkin, Zak Colangelo
Self-Defense Against Robots, A. Michael Froomkin, Zak Colangelo
A. Michael Froomkin
This paper examines when, under U.S. law, humans may use force against robots to protect themselves, their property, and their privacy. May a landowner legally shoot down a trespassing drone? May she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place …
What Is An Accident?, Daniel B. Yeager
What Is An Accident?, Daniel B. Yeager
Daniel B. Yeager
Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”
Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of Responsibility …
Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin
Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin
Bailey H. Kuklin
No abstract provided.
Lapses Of Attention In Medical Malpractice And Road Accidents, Robert D. Cooter, Ariel Porat
Lapses Of Attention In Medical Malpractice And Road Accidents, Robert D. Cooter, Ariel Porat
Robert Cooter
A doctor who lapses and injures her patient, and a driver who lapses and causes an accident, are liable under negligence law for the harm done. But lapse is not necessarily negligence, since reasonable people lapse from time to time. We show that tort liability for “reasonable” lapses distorts doctors’, drivers’, and manufacturers’ incentives to take care. Furthermore, such liability provides potential injurers with incentives to substitute activities which are less prone to lapses with activities which are more prone to lapses, even if such substitution is inefficient. We propose several solutions to the inefficiencies that result from liability for …