Law Commons^™

Tort Law And Civil Recourse, Mark A. Geistfeld

Michigan Law Review

A Review of Recognizing Wrongs. by John C.P. Goldberg and Benjamin C. Zipursky.

The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, Tezira Abe

Michigan Law Review

The National Collegiate Athletic Association (NCAA) is the primary governing body of college athletics. Although the NCAA proclaims to protect student-athletes, an examination of its practices suggests that the organization has a troubling history of ignoring the harmful effects of concussions. Over one hundred years after the NCAA was established, and seventy years after the NCAA itself knew of the potential effects of concussions, the organization has done little to reduce the occurrence of concussions or to alleviate the potential effects that stem from repeated hits to the head. This Note argues for recognizing a special relationship between the NCAA …

Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom

Michigan Law Review

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain non meritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously, though, …

Houston, We Have A (Liability) Problem, Justin Silver

Michigan Law Review

The development of private manned space flight is proceeding rapidly; there are proposals to launch paying passengers before the end of 2014. Given the historically dangerous nature of space travel, an accident will probably occur at some point, resulting in passengers’ injury or death. In the event of a lawsuit stemming from such an accident, a court will likely find that a space flight entity operating suborbital flights is a common carrier, while an entity operating orbital flights is not. Regardless of whether these entities are common carriers, they face a threat of high levels of liability, as well as …

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Michigan Law Review

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers can be excluded without …

A Comparative Fault Defense In Contract Law, Ariel Porat

Michigan Law Review

This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.

Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat

Michigan Law Review

The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Is There A Duty?: Limiting College And University Liability For Student Suicide, Susanna G. Dyer

Michigan Law Review

This Note argues that nonclinician administrators employed by institutions of higher education do not have a special relationship with their students such that they have a duty to act with reasonable care to prevent a foreseeable student suicide. Courts that have in recent years ruled to the contrary have done so by incorrectly basing their duty-of-care analysis on foreseeability of harm alone. With an eye toward a proper duty-of-care analysis, this Note analyzes multiple factors to reach its conclusion, including the ideal relationship between colleges and their students and the burden on and capability of colleges to protect their students …

Offsetting Risks, Ariel Porat

Michigan Law Review

Under prevailing tort law, an injurer who must choose between Course of Action A, which creates a risk of 500 (there is a probability of .1 that a harm of 5000 will result), and Course of Action B, which creates a risk of 400 (there is a probability of.] that a harm of 4000 will result), and who negligently opts for the former will be held liable for the entire harm of 5000 that materializes. This full liability forces the injurer to pay damages that are five times higher than would be necessary to internalize the risk of 100 that …

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

Conjunction And Aggregation, Saul Levmore

Michigan Law Review

This Article begins with the puzzle of why the law avoids the issue of conjunctive probability. Mathematically inclined observers might, for example, employ the "product rule," multiplying the probabilities associated with several events or requirements in order to assess a combined likelihood, but judges and lawyers seem otherwise inclined. Courts and statutes might be explicit about the manner in which multiple requirements should be combined, but they are not. Thus, it is often unclear whether a factfinder should assess if condition A was more likely than not to be present - and then go on to see whether condition B …

Identifying And Valuing The Injury In Lost Chance Cases, Todd S. Aagaard

Michigan Law Review

Any plaintiff seeking to recover in tort must prove that the defendant has breached the duty of care. Even after the plaintiff has established the defendant's breach of duty, however, issues of causation and damages remain. These two issues are frequently vexing, both conceptually and in terms of evidentiary demonstration. For example, if a plaintiff proves that a defendant acted negligently, it still may be unclear whether the plaintiff would have been injured even ip the absence of the defendant's negligence. Similarly, in assessing damages, factfinders often :find it difficult to attach a monetary value to a plaintiff's nonpecuniary losses …

Affirmative Duties, Systemic Harms, And The Due Process Clause, Barbara E. Armacost

Michigan Law Review

Part I of the article lays out the major academic criticisms of DeShaney v. Winnebago County Department of Social Services. Part II describes the contours of liability for failure to protect in tort. Part III offers a positive explanation for the strong presumption against governmental liability in failure-to-protect cases: permitting broad liability for failure to protect would involve the courts in second-guessing political decisions about the use of limited community resources. This explanation has two parts. First, as a matter of institutional competence, budgetary decisions about the appropriate level and distribution of public services are better suited to political rather …

The Product Liability Mess: How Business Can Be Rescued From The Politics Of State Courts, Matthew Harris

Michigan Law Review

A Review of The Product Liability Mess: How Business Can Be Rescued from the Politics of State Courts by Richard Neely

Coup De Grace For Personal Injury Torts?, Alfred F. Conard

Michigan Law Review

A Review of Doing Away with Personal Injury Law: New Compensation Mechanisms for Victims, Consumers and Business by Stephen D. Sugarman

Police Liability For Creating The Need To Use Deadly Force In Self-Defense, Frank G. Zarb Jr.

Michigan Law Review

Police officers are granted wide discretion in the use of their firearms. Allowing officers some discretion is unavoidable, because they must often make difficult decisions in the face of rapidly changing circumstances. Officers, however, may abuse this discretion and cause injury or death unnecessarily. In the face of this danger of abuse by officers, suspects are, in many states, prohibited from defending themselves. While it is better to have a court decide when a police officer has abused his discretion than to allow the suspect to make that decision at the moment of arrest, it is not clear what standards …

Negligent Accounting And The Limits Of Instrumental Tort Reform, John A. Siliciano

Michigan Law Review

This article first explores the relationship between the accountant and the reliant third party, and recounts the mounting judicial hostility to the accountant's traditional privity defense. Next, the article critically examines the arguments that have supported traditional privity-based regimes. The third section turns to the reform courts and tests whether the rationales offered for reform justify abandoning the privity requirement.

Concluding that a convincing case for reform has yet to be made and - given the complexity of a properly executed instrumental analysis - may never be made, the article's final section reconsiders the utility of instrumental reasoning as a …

Corporate Behavior And The Social Efficiency Of Tort Law, John A. Siliciano

Michigan Law Review

This article examines this dissonance between accepted theory and observed reality, between what the model envisions and what the tort system seems to deliver. After sketching the model in greater detail, the first section of the article reviews restraints within tort law on the achievement of efficient outcomes. The analysis then turns to the broader legal environment, and describes how legally sanctioned means of liability evasion - such as the corporate law doctrine of limited liability and the bankruptcy rules permitting discharge of obligations - may further undermine the practical utility of the social efficiency model of tort. The final …

The Taming Of A Duty--The Tort Liability Of Landlords, Olin L. Browder

Michigan Law Review

For one inclined to reform the first-year curriculum in law schools the most simple and comprehensive solution is to expand the treatment of the law on landlord and tenant, and only then break up into the traditional basic subjects to deal with matters not previously covered. Thereby one could embrace all the traditional first-year subjects except Criminal Law, and a good deal more as well.

The other side of this conceit is that one who approaches the modem law of landlord and tenant from traditional property perspectives encounters particular problems that arise from the margins, or along the frontal thrust, …

The Perils Of Writing An Intellectual History Of Torts, George C. Christie

Michigan Law Review

A Review of Tort Law in America: An Intellectual History by G. Edward White

The Lawsuit Lottery: Only The Lawyers Win, Michigan Law Review

Michigan Law Review

A Book Notice about The Lawsuit Lottery: Only the Lawyers Win by Jeffrey O'Connell

The Interlocking Death And Rebirth Of Contract And Tort, Jeffrey O'Connell

Michigan Law Review

The first portion of this article will examine the growing inclination of courts to apply tort principles to cases based on contracts; at the same time, the defects of tort will be discussed insofar as they militate against the wisdom of so extending tort principles. In the last half of the article, an alternative contractual method for allocating losses in one particular area will briefly be presented; this method does not contain the defects in loss allocation that have impelled courts to reject traditional contractual principles, but it also avoids many inefficiencies of traditional tort remedies.

The Court, The Legislature, And Governmental Tort Liability In Michigan, Luke K. Cooperrider

Michigan Law Review

In 1961, when Justice Edwards of the Michigan supreme court said, "From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan," he went on to say that he was eliminating from the law of Michigan "an ancient rule inherited from the days of absolute monarchy," a "whim of long-dead kings." Justice Carr, dissenting, agreed that the doctrine in question "came to us as a part of the common law," for which reason he thought it was protected by the reception clause of the Constitution of 1850 from the overruling action of the …

Tort Liability Of A University For Libelous Material In Student Publications, Michigan Law Review

Michigan Law Review

While attention will occasionally be drawn to the impact of the New York Times privilege, this Note largely assumes that a defamed plaintiff is capable of overcoming the constitutional barriers imposed by New York Times and its progeny. In other words, the assumption is made that libelous statements either fall outside the constitutional privilege or that the plaintiff can demonstrate actual malice in the student authors or editors. The Note will analyze the traditional theories which may be invoked to establish the university's liability for defamatory material in student publications. First, a range of student newspaper-university relationships will be examined …

Slumlordism As A Tort, Joseph L. Sax, Fred J. Hiestand

Michigan Law Review

The war against poverty has been fought with rather more vigor than its initiators contemplated. Thus far, however, the major engagements have taken place in the streets of Watts and Chicago, which is not quite what they had in mind. Some, who think it odd that as we pass more laws we get more lawlessness, will perhaps content themselves by observing that the feeding hand is always bitten. Those less easily satisfied have begun to see the need for adopting some legal solutions as far reaching as the problems they are designed to abate; the following article is addressed to …

Motor Vehicles--Legislation--The Michigan Motor Vehicle Accident Claims Act, Michigan Law Review

Michigan Law Review

With the adoption of the Michigan Act, Michigan has become the fifth state to adopt a comprehensive program utilizing both the insurance and the fund approaches. Moreover, the Michigan Act, apparently inspired by its Ontario prototype, contains some elements which were previously unknown in United States legislation. Consequently, it may prove enlightening to examine the scope and purpose of the Michigan Act, and to compare it with similar legislation in other states.

Passenger Carrier's Liability Extended Beyond Its Own Line By Ticket Sale Transaction--Ephraim V. Safeway Trails, Inc., Michigan Law Review

Michigan Law Review

Plaintiff, a Negro woman, purchased a roundtrip bus ticket in New York City for travel between there and Montgomery, Alabama. The ticket was sold by defendant, an interstate common carrier licensed to do business in New York, and consisted of a strip of coupon tickets, each good for a separate portion of the journey over the lines of defendant and other independent carriers. Printed on the back of each coupon was a clause limiting defendant's liability to its own line.1 Defendant received a ten per cent commission on those connecting tickets it sold for the other lines, and on the …

The Economic Treatment Of Automobile Injuries, Alfred F. Conard

Michigan Law Review

The automobile has changed more than Americans' ways of transportation. It has changed their ways of housing, of working and playing, of eating, living, and loving. It has also added to their ways of suffering and dying.

The suffering and dying have called forth two kinds of treatment. The better recognized kind is medical treatment, which staves off death and minimizes pain and disability among the living. The less recognized kind of treatment is economic-the restoration to the injury victim or to his dependents of some part of the economic wellbeing that has been snatched away from them by loss …