Law Commons^™

Torts, Cynthia Trimboli Adams, Charles R. Adams Iii

Mercer Law Review

Who can be wise, amazed, temperate and furious, Loyal and neutral, in a moment? No man.
—William Shakespeare, Macbeth, act 2, sc. 3 (Signet Classic ed., Signet Books 1963) (1606).

Macbeth may have feigned this plight as he covered up his foul murder of King Duncan, but it precisely describes the survey writer's dilemma. Some of the legal theories advanced in survey period cases were as arcane as the contents of the witches' cauldron. Some of the holdings were as unsettling as Banquo's ghost at the feast? And, as always, the accumulation of cases was as inexorable as Birnam Wood's …

Causation And Injury In Corporate Control Transactions: Cede & Co. V. Technicolor, Inc., Jacqueline M. Veneziani

Washington Law Review

In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court held that shareholders are not required to prove injury from corporate directors' failure to exercise due care in approving a merger transaction. Tort principles, the court stated, have no role in a business judgment rule analysis. Therefore, once shareholders prove a violation of the directors' duty of care, the burden is shifted to the directors to prove the entire fairness of the transaction despite the absence of a breach of the duty of loyalty. This Note argues that the entire fairness review of a disinterested board transaction is unworkable. …

Truth & Beauty, Deception & Disfigurement: A Feminist Analysis Of Breast Implant Litigation, Kerith Cohen

William & Mary Journal of Race, Gender, and Social Justice

In her recent book, The Beauty Myth,' Naomi Wolf discusses the phenomenon in which a woman links her identity to her physical appearance. Wolf presents the beauty myth as a sequel to the feminine mystique2 "discovered" by Betty Friedan.3 The feminine mystique depicts happy womanhood as a "modern" suburban housewife.4 The beauty myth, on the other hand, depicts the modern happy woman as physically perfect. 5 "The beauty myth tells a story: the quality called 'beauty' objectively and universally exists. Women must want to embody it and men must want to possess women who embody it."'

This Note explores how …

The Revival Of Tort Theory In Canada, Jamie Cassels

Dalhousie Law Journal

Tort scholarship in Canada has not traditionally been preoccupied with theory. Apart from several fine (doctrinally oriented) texts, by far the greatest amount of tort writing found in the journals is ad hoc and responsive to current is sues. It consists for the most part of case comments or 'recent development' articles inspired by important decisions from higher courts. Beyond this, a number of substantive topics and problem areas have recently been dealt with in some detail. There is alarge amount of literature, for example, on the liability of public authorities and professionals, sporting injuries, asbestos and environmental liability, and …

An Index And Table Of Contents To The Ali Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Alexander S. Glovsky

San Diego Law Review

In 1986, the American Law Institute (ALI) published a report to analyze and appraise the state of the tort system and to recommend reform. This study lacked crucial aids that could make it more accessible: it was devoid of any index and the table of contents did not contain any subheadings. The authors of this Article created an index and a comprehensive table of contents, in order to make the report more "user friendly." This Article contains a brief description of the 1986 ALI Reporter's Study, followed by an expanded table of contents and an index.

Review Of: Making Decisions About Liability And Insurance (Colin Camerer & Howard Kunreuther Eds.), Joseph M. Carreiro Jr.

RISK: Health, Safety & Environment (1990-2002)

Review of: Making Decisions about Liability and Insurance (Colin Camerer & Howard Kunreuther eds., Kluwer Academic Publishers 1993). Figures, index, notes, tables. ISBN 0-7923-9393-7 [139 pp. Cloth $89.95. 101 Phillip Drive, Assinippi Park, Norwell MA 02061.1

Guns For Hire, Commercial Speech And Tort Liability: Making A Case For Preserving First Amendment Free Speech Rights, Stephen T. Raptis

West Virginia Law Review

No abstract provided.

A Process Theory Of Torts, Jay Tidmarsh

Washington and Lee Law Review

No abstract provided.

Your Money Or Your Life?: Thinking About The Use Of Willingness-To-Pay Studies To Calculate Hedonic Damages, Dennis C. Taylor

Washington and Lee Law Review

No abstract provided.

Sexual Harassment In The Legal Profession: Workplace Education And Reform, Civil Remedies, And Professional Discipline, Lisa Pfenninger

Florida State University Law Review

No abstract provided.

The Grin Without The Cat: Claims For Damages From Toxic Exposure Without Present Injury, Bill Charles Wells

William & Mary Environmental Law and Policy Review

No abstract provided.

Simple Calculations To Reduce Litigation Costs In Personal Injury Cases: Additional Empirical Support For The Offset Rule, R. A. L. Carter, John P. Palmer

Osgoode Hall Law Journal

This article demonstrates that if the nominal rate of interest equals the growth rate of nominal earnings, then a strong case can be made for calculating lump-sum damage awards by using the offset rule, i.e., by simply multiplying the annual loss by the number of years the loss is expected to continue. An examination of the Canadian data not only supports the offset rule, but also suggests that plaintiffs are being systematically undercompensated by rules currently in use.

Recovery Of Emotional Distress Damages In Aids-Phobia Cases: A Suggested Approach For Virginia, Edward Benedict Lumpkin

Washington and Lee Law Review

No abstract provided.

Review Of: National Research Council, Issues In Risk Assessment, Diane M. Albert

RISK: Health, Safety & Environment (1990-2002)

Review of: National Research Council, Issues in Risk Assessment (National Academy Press). Appendices, executive summary, figures, preface, references, tables. LC 92-61838; ISBN 0-309-04786-2. [374 pp. Paper $37.50 - S&H, $4 for first and $0.50 for each additional copy. 2101 Constitution Avenue, NW, Washington DC 20418.]

Helling V. Mckinney And Smoking In The Cell Block: Cruel And Unusual Punishment?, Lisa Gizzi

American University Law Review

No abstract provided.

Looking Out For Mary Carter: Collusive Settlement Agreements In Washington Tort Litigation, J. Michael Philips

Washington Law Review

Courts and commentators disagree as to the propriety of Mary Carter agreements, pseudo-settlement devices used in multiparty litigation that unite the interests of a plaintiff and a cooperating defendant, and maintain that defendant's presence at trial. Most courts tolerate these arrangements provided that they are disclosed, while a distinct minority render them void. Washington courts have not espoused a definite position, although recent decisions suggest a tolerant stance. This Comment argues that the use of Mary Carters is inconsistent with Washington tort law, and that Washington courts should therefore prohibit them entirely. This may be accomplished by treating all Mary …

Avoiding Takings "Accidents": A Tort Perspective On Takings Law, Eric Kades

University of Richmond Law Review

Viewing the Takings Clause of the Fifth Amendment as a form of insurance appeals to our intuition. The government, like fire, does not often "take" property, but when faced with extraordinary risk property owners naturally desire compensation. Recent scholarship, however, has dissolved the attractiveness of this perspective. This literature, through economic analysis, claims that the Takings Clause should be repealed and replaced with private takings insurance. This is the "no-compensation" result.

Liability For 'Knowing' Transmission Of Hiv: The Evolution Of A Duty To Disclose, Jody B. Gabel

Florida State University Law Review

No abstract provided.

Defamation By Will: Theories And Liabilities, 27 J. Marshall L. Rev. 749 (1994), Paul T. Whitcombe

UIC Law Review

No abstract provided.

Review Of: M. Stuart Madden, Toxic Torts Deskbook, Laura Marron

RISK: Health, Safety & Environment (1990-2002)

M. Stuart Madden, Toxic Torts Deskbook (Lewis Publishers 1992). Acknowledgements, case index, general index, notes, preface. LC 91-48238; ISBN 0- 87371-508-X. [230 pp. Cloth $69.95 domestic, $84.00 elsewhere. 2000 Corporate Boulevard, NW, Boca Raton FL 33431.]Review of:

Trains, Trucks, Trees And Shrubs: Vision-Blocking Natural Vegetation And A Landowner's Duty To Those Off The Premises, James T. R. Jones

Villanova Law Review

No abstract provided.

A New Predicament For Physicians: The Concept Of Medical Futility, The Physician's Obligation To Render Inappropriate Treatment, And The Interplay Of The Medical Standard Of Care, Eric M. Levine

Journal of Law and Health

Part II of this article discusses the concept of futility and reviews various proposed approaches to defining "futility". This article then shows how personal value judgments play an integral part in determining futility under virtually all of these approaches. Part II concludes that a decision that treatment is futile should not be based on the individual values of only the patient or physician under the shared decisionmaking model of the physician-patient relationship. Part III tackles the issue whether a physician must offer or continue treatment deemed "medically and ethically inappropriate." Part III first reviews common law doctrines governing the physician-patient …

Cates V. Cates: Illinois' "Solution" To Tort Litigation Between Parents And Children, Colleen M. Danaher

Loyola University Chicago Law Journal

No abstract provided.

Sharing Accountability For Breast Implants: Strict Products Liability And Medical Professionals Engaged In Hybrid Sales/Service Cosmetic Products Transactions, Richard L. Cupp, Jr.

Florida State University Law Review

No abstract provided.

The Constitutional Duty Of Teachers To Protect Students: Employing The "Sufficient Custody" Test, John W. Waters

Kentucky Law Journal

No abstract provided.

The Demise Of The Foreign-Natural Test In North Carolina - Goodman V. Wenco Foods, Leigh A. Aughenbaugh

Campbell Law Review

This Note has several objectives. First, it will describe the origins, development, and rationale of both the foreign/natural and reasonable expectations test in other jurisdictions, as well as trace the growth of the former test in North Carolina and its eventual demise. In addition, it will analyze the court's decision, and examine the reasons given for it by comparing the decision to that of the recent national trend. Finally, this Note will explore the consequences of the court's decision and determine whether the course chosen was the proper one.

Insulating Sexual Harassment Grievance Procedures From The Chilling Effect Of Defamation Litigation, Ruth A. Kennedy

Washington Law Review

The threat of defamation liability may undermine the push to encourage private employers to establish internal grievance procedures for handling sexual harassment complaints. Courts have recognized two defenses to defamation claims arising out of employers' sexual harassment investigations: the qualified privilege and the intracorporate immunity rule. Neither of these defenses adequately balances the need to insulate grievance procedures against the desire to protect the reputation of the employee accused of harassment. This Comment proposes the adoption of a new grievance procedure privilege which would ensure the integrity of grievance procedures while maximizing the protection afforded an accused employee.

The Evolution And Status Of The Contributory Negligence Defense To Medical Malpractice Actions In North Carolina - Mcgill V. French, Lucinda L. Fraley

Campbell Law Review

This Note will examine the defense of contributory negligence, the prerequisites for asserting the defense, and the underlying policy reasons which may explain the rampant growth of the defense and its alleged recent decline. Next, this Note will evaluate the circumstances which have given rise to contributory negligence as well as those circumstances that do not rise to the level of contributory negligence. Finally, this Note will analyze the North Carolina Supreme Court's decision to permit the defense when the patient fails to follow the physician's advice and instructions.

What The Supreme Court Giveth, The Supreme Court Taketh Away - Gardner V. Gardner, Alice Mcneer

Campbell Law Review

This Note reviews the Ruark decision and the cases decided in the wake of its expansive "foreseeability" test. It then analyzes the court's application of the factors established in Ruark to the facts of Gardner and questions the court's failure to establish more specific standards for determining foreseeability in negligent infliction of emotional distress cases. Next, this Note explores the possible effects of Gardner. This Note concludes that the Court should have set forth clearer standards to better guide the lower courts in deciding when a plaintiff has stated a proper claim and suggests how the "foreseeability" test could …

Ashley V. Abbott Laboratories: Reconfiguring The Personal Jurisdiction Analysis In Mass Tort Litigation, Julia C. Bunting

Vanderbilt Law Review

The Supreme Court has struggled for over one hundred years to articulate a workable standard for determining whether a court may exercise personal jurisdiction, over a defendant without violating the Due Process Clause of the Fourteenth Amendment. Despite a substantial body of precedent, the Court has been unable to enunciate a consistent, intelligible test to govern personal jurisdiction. The Court's pronouncements swing between two bases: the territoriality, sovereignty, and power concerns established by Pennoyer v. Neff, and the defendant-centered fairness analysis announced in International Shoe Co. v. Washington. As a result of this inconsistency, lower courts adhere to vastly different …