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Articles 1 - 30 of 37
Full-Text Articles in Law
Formed By Thalidomide: Mass Torts As A False Cure For Toxic Exposure, Anita Bernstein
Formed By Thalidomide: Mass Torts As A False Cure For Toxic Exposure, Anita Bernstein
Faculty Scholarship
No abstract provided.
Product Liability And Legal Leverage: The Perverse Effect Of Stiff Penalties, Michael S. Knoll
Product Liability And Legal Leverage: The Perverse Effect Of Stiff Penalties, Michael S. Knoll
All Faculty Scholarship
No abstract provided.
Dashing Consumer Hopes: Strict Products Liability And The Demise Of The Consumer Expectations Test, Rebecca Korzec
Dashing Consumer Hopes: Strict Products Liability And The Demise Of The Consumer Expectations Test, Rebecca Korzec
All Faculty Scholarship
The threshold issue in American products liability litigation is whether the product was defective at the time it left the manufacturer's control. Traditionally, courts and scholars define “defect” in three functional categories: manufacturing defects, design defects and marketing defects. American products liability doctrine employs two major tests to determine whether a "defect” exists: the seller-oriented risk-utility test and the buyer-oriented consumer expectations test. The Draft of the Restatement Third of Torts: Products Liability, like some American jurisdictions, rejects the “consumer expectations” test as an independent standard in defective warning and design cases. Ironically, this limitation of the use of the …
Product Category Liability: A Critical Analysis, Richard C. Ausness
Product Category Liability: A Critical Analysis, Richard C. Ausness
Law Faculty Scholarly Articles
Professor Wertheimer has proposed that courts be allowed to hold producers strictly liable for product-related injuries, even though their products are not otherwise defective, as long as the overall risks associated with such products outweigh their benefits. However, this would subject the sellers of inherently dangerous products, such as cigarettes, to potentially devastating liability since their products cannot be made less dangerous. There are better ways to control the consumption of hazardous products if society wishes to do so.
Part I of this article discusses the scope and purpose of the defect requirement in section 402A and in the proposed …
Toward A Proper Test For Design Defectiveness: "Micro-Balancing" Costs And Benefits, David G. Owen
Toward A Proper Test For Design Defectiveness: "Micro-Balancing" Costs And Benefits, David G. Owen
Faculty Publications
No abstract provided.
Revisiting The Intersection Of Workers' Compensation And Product Liability: An Assessment Of A Proposed Federal Solution To An Old Problem, Thomas A. Eaton
Revisiting The Intersection Of Workers' Compensation And Product Liability: An Assessment Of A Proposed Federal Solution To An Old Problem, Thomas A. Eaton
Scholarly Works
This article addresses a less publicized, but potentially far reaching provision of the Product Liability Legal Reform Act of 1996: the provision pertaining to the intersection of product liability and workers' compensation. The prototypical case is one in which an employee is injured on the job and the injury is caused, at least in part, by a defective product. In many instances, the employer may also be at fault. This scenario potentially calls into play both the product liability and the workers' compensation systems, raising certain relevant questions. Can the employee secure compensation benefits from the employer and tort damages …
Mass Tort Litigation: Congress's Silent, But Deadly, Reform Effort, Mary J. Davis
Mass Tort Litigation: Congress's Silent, But Deadly, Reform Effort, Mary J. Davis
Law Faculty Scholarly Articles
This article explores the ways in which The Common Sense Product Liability and Legal
Reform Act (“Act”) treats mass tort litigation issues. The Act does so both directly and indirectly. The direct methods of reform are mostly industry-specific and, thus, almost inconsequential in contrast to the indirect treatment. The indirect, almost clandestine, methods of reform are the most insidious and provide the most cause for concern as Congress once again attempts to "reform" products liability by reintroducing the Act in 1997. Given the President's early indication that a reform measure could meet with his approval, but that this one in …
Inside The Restatement, Aaron Twerski
How To Make A New Tort: Three Paradoxes, Anita Bernstein
How To Make A New Tort: Three Paradoxes, Anita Bernstein
Faculty Scholarship
No abstract provided.
Arriving At Reasonable Alternative Design: The Reporters' Travelogue, Aaron Twerski, J. A. Henderson
Arriving At Reasonable Alternative Design: The Reporters' Travelogue, Aaron Twerski, J. A. Henderson
Faculty Scholarship
No abstract provided.
The Managed Care Dilemma: Can Theories Of Tort Liability Adapt To The Realities Of Cost Containment?, Barbara A. Noah
The Managed Care Dilemma: Can Theories Of Tort Liability Adapt To The Realities Of Cost Containment?, Barbara A. Noah
Faculty Scholarship
Over the years, the United States health care system has undergone a transformation from a market comprised mainly of self employed physicians· in solo or small group practices to one in which far fewer physicians engage in this type of independent practice. More than three quarters of the physicians in this country now practice medicine within some form of managed care organization ("MCO") or see some managed care patients. The public increasingly perceives the care provided through MCOs as inferior to traditional feefor-service care. Responding to constituent pressures, legislatures in more than twenty states recently have considered bills regulating managed …
Continuing Classroom Conversation Beyond The Well-Placed "Whys?", Bailey Kuklin, Jeffery J. Stemple
Continuing Classroom Conversation Beyond The Well-Placed "Whys?", Bailey Kuklin, Jeffery J. Stemple
Faculty Scholarship
No abstract provided.
"And The Truth Shall Make You Free": Truth As A First Amendment Defense In Tortious Interference With Contract Cases, Robert L. Tucker
"And The Truth Shall Make You Free": Truth As A First Amendment Defense In Tortious Interference With Contract Cases, Robert L. Tucker
Akron Law Faculty Publications
No abstract provided.
Liability For Prescribing Intravenous Injection Equipment To Iv Drug Users, Maxwell J. Mehlman
Liability For Prescribing Intravenous Injection Equipment To Iv Drug Users, Maxwell J. Mehlman
Faculty Publications
In the absence of widespread publicly sponsored needle exchange programs, the proposal has been made that physicians prescribe syringes and needles to intravenous (IV) drug users in order to reduce the risk of infection from HIV and other diseases that could result from needle sharing. One question is whether physicians who engage in this behavior, as well as pharmacists who fill the prescriptions, face a significant threat of malpractice liability if the IV drug user or someone else, perhaps an innocent bystander, is harmed as a result of the prescribed equipment. No such cases have been reported, per- haps because …
Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud
Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud
Articles
If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …
Female Trouble: The Implications Of Tort Reform For Women, Lucinda M. Finley
Female Trouble: The Implications Of Tort Reform For Women, Lucinda M. Finley
Journal Articles
No abstract provided.
"Countering Stereotypes." Review Of Medical Malpractice And The American Jury: Confronting The Myths About Jury Incompetence, Deep Pockets, And Outrageous Damage Awards, By N. Vidmar, Samuel R. Gross
Reviews
The story of The Medical Malpractice Trial has a place in popular American legal culture, somewhere on the shelf with Killers Who Got Off on Technicalities. The plot is simple and tragic. The protagonist is the Doctor, a good man with a flaw: He tries too hard. In the process, he makes an innocent mistake or believes he can prevent the unpreventable. In any event, he fails and the Patient dies or is permanently injured. For this unintentional error the Doctor is crucified, by the vengeful anger of the Patient or her survivors, the avarice of the plaintiffs' lawyer, the …
Article 5 - Recent Developments, James J. White
Article 5 - Recent Developments, James J. White
Other Publications
I. Mitigation in Letter of Credit Transactions Assume a Buyer has procured a letter of credit to pay for contracted goods but no longer wants the goods. The Buyer and the Issuer would like to force the Beneficiary to mitigate. Assume that both the Issuer and Applicant repudiate their obligation or that the Applicant has failed and the Issuer repudiates its obligation to pay under the letter of credit. At the moment of repudiation the price for a gallon of the underlying oil that is the subject of the letter of credit is $.75 and that the letter of credit …
A National Product Liability Statute Of Repose - Let's Not, Stephen J. Werber
A National Product Liability Statute Of Repose - Let's Not, Stephen J. Werber
Law Faculty Articles and Essays
Despite the failure of the 104th Congress to override President Clinton's veto and enact the Common Sense Product Liability Legal Reform Act, there is little doubt that such an Act will be passed by the 105th Congress. Uniform national laws concerning product liability are necessary, can be enacted consistent with Congressional authority, and should be enacted at the earliest possible time. A balanced Act, recognizing the need to protect injured consumers while providing necessary protection to product manufacturers and distributors, can be drafted. Such an Act could include provisions that abolish the consumer expectancy test for design defect litigation, reject …
Ohio Tort Reform In 1998: The War Continues, Stephen J. Werber
Ohio Tort Reform In 1998: The War Continues, Stephen J. Werber
Law Faculty Articles and Essays
For more than a decade a war has been waged between forces seeking legislative reform of tort law, with emphasis on product liability, and the Ohio Supreme Court. The battleground has been the legislative enactments of the Ohio General Assembly. This legislation has faced consistent challenge before the court as a proper exercise of its power of judicial review. Time and time again the court's philosophical approach, predicated on a need to protect injured parties and guarantee compensation for harm, has led to determinations that given legislation fails constitutional scrutiny. In a real sense, the Court has become a super …
Lovewell V. Physicians Insurance Co.: Personal Liability For Prejudgment Interest, Karin M. Mika
Lovewell V. Physicians Insurance Co.: Personal Liability For Prejudgment Interest, Karin M. Mika
Law Faculty Articles and Essays
This article looks at the Supreme Court of Ohio's decision in Lovewell v. Physicians Insurance Co. and the variety of issues and unanswered questions the decision presents relating to insurance law. First, it may no longer be assumed that the insurer acts in tandem with the insured when the insurer is defending a suit brought against the covered individual. Secondly, the Lovewell decision seems to be contrary to one of the basic tenets of insurance law – that an insurance contract must be construed liberally in favor of the insured and strictly against the insurer. Third, the decision gives insureds …
Causation And The Discretionary Function Exception To The Federal Tort Claims Act, Richard Henry Seamon
Causation And The Discretionary Function Exception To The Federal Tort Claims Act, Richard Henry Seamon
Articles
No abstract provided.
Tort Reform In Mississippi: An Appraisal Of The New Law Of Products Liability, Part Ii, Phillip L. Mcintosh
Tort Reform In Mississippi: An Appraisal Of The New Law Of Products Liability, Part Ii, Phillip L. Mcintosh
Journal Articles
In 1993, the Mississippi legislature enacted the Mississippi Products Liability Act, the substantive portions of which became effective on July 1, 1994. Part I of this Article, previously published, discussed the purpose of the new Act; the definitions of basic terms of art used in the Act - such as "product," including whether used products are covered by the Act, "manufacturer," "seller," and "unreasonably dangerous"; and the interests protected by the Act. Part II of this article addresses the categories of defects forming the bases of claims for damages created by the Act, the liability of sellers and manufacturers, defenses …
Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky
Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky
Scholarly Works
No abstract provided.
Beyond Formalism And False Dichotomies: The Need For Institutionalizing A Flexible Concept Of The Mediator's Role, Jeffrey W. Stempel
Beyond Formalism And False Dichotomies: The Need For Institutionalizing A Flexible Concept Of The Mediator's Role, Jeffrey W. Stempel
Scholarly Works
Related to the problem of the false dichotomy is the formalist application of the either/or construct. If, for example, one adopts as a first premise the view that mediation is by definition non-evaluative, and then rigidly applies this premise to issues of appropriate mediator behavior, the result is a formalist system that permits mediators little or no leeway to depart from the non-evaluative style. This sort of regulatory regimen may satisfy the non-evaluative ethos of some mediation scholars, but it does so at the risk of becoming a rigid system that prevents mediators from taking practical actions most appropriate to …
Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman
Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman
Articles
It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under …
Class Action Chaos? The Theory Of The Core And An Analysis Of Opt-Out Rights In Mass Tort Class Actions, Michael A. Perino
Class Action Chaos? The Theory Of The Core And An Analysis Of Opt-Out Rights In Mass Tort Class Actions, Michael A. Perino
Faculty Publications
From breast implants to cigarettes, mass tort class actions are a prominent and controversial part of the contemporary litigation landscape. A critical component of these actions is the ability of class members to “opt out” and thereby exclude themselves from the effect of any class judgment. The tension between individual autonomy and the desire for global resolution of mass controversies has led to an intense debate concerning the circumstances under which opt-out rights should be constrained, if at all.
This Article makes five distinct contributions to the class action literature. First, the Article applies the game theoretic concept of the …
International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi
International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi
LLM Theses and Essays
With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …
Constitutional Torts, Common Law Torts, And Due Process Of Law, Michael L. Wells
Constitutional Torts, Common Law Torts, And Due Process Of Law, Michael L. Wells
Scholarly Works
Government officers may harm persons in many ways. When an official inflicts a physical injury, causes emotional distress, publishes defamatory statements, or initiates a malicious prosecution, the victim's traditional recourse is a tort suit brought under common law or statutory principles. But an alternative to ordinary tort may also be available. The growth of damage remedies for constitutional violations in the decades following Monroe v. Pape has encouraged litigants to frame their cases as breaches of the Constitution. These litigants may sue for damages under 42 U.S.C. § 1983 when the offender is a state employee, or assert the damages …
An Insurance-Based Compensation System For Product-Related Injuries, Richard C. Ausness
An Insurance-Based Compensation System For Product-Related Injuries, Richard C. Ausness
Law Faculty Scholarly Articles
In recent years, an increasing number of commentators have begun to express doubts about the effectiveness of the tort system. According to these critics, tort law does not deter accidents, nor does it spread accident costs efficiently. Worst of all, the tort system is extremely expensive to operate. Some of this criticism has spilled over into the products liability area. Products liability law has been condemned as expensive, ineffective, and regressive; in addition, it has been blamed for higher product prices, foreign competition, problems within the liability insurance industry, corporate bankruptcies, lack of product development, and the removal of useful …