Law Commons^™

Does Product Liability Make Us Safer?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Product liability law is intended to create an environment that fosters safer products. However, this law often has adverse consequences. Some of the problems stem from the inherent nature of product risk decisions and the function of tort liability, while others may derive from individuals’ cognitive limitations and inability to think properly about balancing risk and cost. This paper examines both types of problems and summarizes relevant academic literature.

The Curious Case Of Directors' And Officers' Liability For Supervision And Management: Exploring The Intersection Of Corporate And Tort Law, Martin Petrin

American University Law Review

No abstract provided.

When Is Religious Speech Outrageous?: Snyder V. Phelps And The Limits Of Religious Advocacy, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous?

These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as …

Free Speech At What Cost?: Snyder V. Phelps And Speech-Based Tort Liability, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than …

Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist

Law Faculty Publications

The twenty-first century has ushered in demand by some Americans for annoyancetech devices—novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this “revenge by gadget.” Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions.

Introduction: Genuine Tort Reform, Carl Bogus

Law Faculty Scholarship

No abstract provided.

Providing A Safe Harbor For Those Who Play By The Rules: The Case For A Strong Regulatory Compliance Defense, Richard C. Ausness, H. Lee Barfield, David A. King, Joshua R. Denton, Stephen J. Jasper

Law Faculty Scholarly Articles

On September 25, 2003, a fire broke out at the National Health Care (NHC) nursing home facility in Nashville, Tennessee, causing sixteen deaths and a number of injuries from smoke inhalation. Thirty-two victims subsequently filed suit against the nursing home, alleging that NHC was negligent for failing to install sprinklers in its facility. This claim was made notwithstanding the fact that applicable federal, state, and local safety regulations did not require the installation of sprinklers in this particular type of building, and notwithstanding that the NHC facility had been inspected by state fire inspectors just months before the fire and …

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

The Judgment-Proof Society, Stephen G. Gilles

ExpressO

This article presents the first article-length treatment of the legal rules that enable uninsured and underinsured individuals to escape tort liability by sheltering their income and assets from collection. These legal barriers to collecting tort judgments include limits on wage garnishment, homestead exemptions, retirement-plan exemptions, discharge in bankruptcy, spendthrift trusts, offshore asset protection trusts, and more. Of course, indigent persons would be judgment-proof even without these rules, because they have so few assets and so little income. Contrary to the myth of personal tort liability that is standard in torts scholarship and teaching, however, these legal rules enable huge numbers …

Americans Abroad: International Educational Programs And Tort Liability, Vincent R. Johnson

Faculty Articles

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. Until recently, there were few reported cases involving claims arising from foreign educational ventures. However, the increase in international study abroad programs has been paralleled by an increase in tort claims. Additionally, because of the tendency of tort cases to be settled, the number of unreported cases, based on harm to students participating in study abroad programs, may be considerably larger than what appears in legal research databases.

Given the high cost of potential litigation, a program provider has no choice but to …

Liability Externalities And The Law: A Comment On Cooter And Porat, Keith N. Hylton

Faculty Scholarship

Robert Cooter and Ariel Porat have offered a simple model of tort liability with sensible reform proposals. Their focus is in on damage levels, and how those levels can be modified to reflect the socially desirable level of externalization. However, to the extent that there is any gain to be achieved by modifying damage awards, it would be better to secure this gain through other approaches, such as adopting a more careful analysis of factual causation or reducing the likelihood of judicial error.

Beyond "Unlimiting" Shareholder Liability: Vicarious Tort Liability For Corporate Officers, Timothy P. Glynn

Vanderbilt Law Review

Debate continues to rage over limited shareholder liability and the social costs it imposes.' While proposals flourish for imposing liability on shareholders to reduce these costs, little attention has been devoted to a more promising solution: vicarious tort liability for high- ranking corporate officers. Limited shareholder liability produces benefits, but it also inflicts costs, including encouraging excessively risky corporate activity. These costs are most pronounced in the tort context because potential tort victims rarely can protect themselves by monitoring corporate activities or bargaining with corporate actors. Commentators disagree on limited shareholder liability's net impact on social utility and what, if …

The Avid Sportsman And The Scope For Self-Protection: When Exculpatory Clauses Should Be Enforced, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue

Articles

The September 11th Victim Compensation Fund of 2001 (the Fund) was part of legislation enacted just eleven days after the terrorist attacks of September 11th in the wake of extraordinary national loss. It is possible, therefore, that the Fund will always be considered an urgent and unique response to the unprecedented events of September 11th. On that view, the character of the Fund will have little longterm policy significance. It is equally possible, however, that the enactment of the Fund will prove to be a seminal moment in the history of tort and compensation law. The Fund adopts a new …

"Waive" Goodbye To Tort Liability: A Proposal To Remove Paternalism From Product Sales Transactions, Richard C. Ausness

San Diego Law Review

This Article argues that waivers of tort liability should be permitted in connection with product sales. Currently, sellers cannot limit their liability under tort law for personal injuries caused by defective products even though such waivers are allowed, albeit reluctantly, under principles of negligence and warranty law.

When Warnings Alone Won’T Do: A Reply To Professor Phillips, Richard C. Ausness

Law Faculty Scholarly Articles

In his paper, Professor Phillips contends that questions about the adequacy of a product's design should be resolved by the use of a risk-utility test and that the existence of an adequate warning should merely be one factor for the jury to take into account. This is essentially the position espoused by the Restatement (Third) of Torts: Products Liability (hereinafter Third Restatement), section 2, comment l. On the other hand, Professor PhiIlips is very critical of subsections 6(c) and 6(d). These provisions establish liability for the sellers of prescription drugs and medical devices. Section 6(c), which is concerned …

Kentucky Law Survey: Torts, Ronald L. Green

Kentucky Law Journal

No abstract provided.

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 …

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 …

Pain And Suffering: Damages In Search Of A Sounder Rationale, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper will address pain and suffering generally and will not distinguish these different potential components of pain and suffering damages. Section 1 presents the theoretical foundations for damages awards, including both the deterrence and compensation objectives. Section 2 explores some practical rationales for pain and suffering damages, such as the omission of legal fees as a component of damages. Section 3 examines the extent to which pain and suffering awards vary systematically with the extent and nature of the injury as opposed to simply being random acts of capricious juries. Since much of the interest in pain and suffering …

A Missed Opportunity: The Federal Tort Claims Act And Civil Rights Actions, Diana Hassel

Oklahoma Law Review

No abstract provided.

Managed Care, Utilization Review, And Financial Risk Shifting: Compensating Patients For Health Care Cost Containment Injuries, Vernellia R. Randall

Seattle University Law Review

This Article examines current tort remedies for personal injury claims and explores the problems that arise when these remedies are applied to physicians' actions that are directed by third-party payers. Part II of this Article explores the organization and historical development of managed health care products. Part III considers the past and present uses of the utilization review process and financial risk shifting. Part IV explores the applicability of traditional theories of tort liability to third-party payers, including direct liability of third-party payers who market managed care products. Part V considers the barriers that ERISA presents to compensating patients for …

Tort Liability For Physical Injuries Allegedly Resulting From Media Speech: A Comprehensive First Amendment Approach , Andrew B. Sims

Faculty Scholarship

No abstract provided.

Legislative Reforms Of Governmental Tort Liability: Overreacting To Minimal Evidence, Ann Judith Gellis

Articles by Maurer Faculty

No abstract provided.

The Constitutionality Of Statutes Of Repose: Federalism Reigns, Josephine H. Hicks

Vanderbilt Law Review

The development of common-law tort liability, especially since the late 1950s and early 1960s, has broken many of the barriers to plaintiff recovery. The abrogation of the privity requirement, the evolution of the discovery rule, and the advent of strict liability were primary agents in this "assault upon the citadel."' These developments have threatened many potential tort defendants, particularly members of the manufacturing and construction industries and the medical profession. In response to lobbying pressure from these groups, many state legislatures have adopted measures to limit tort recoveries. One of the measures most popular among defendants has been the enactment …

Surrogate Motherhood And Tort Liability: Will The New Reproductive Technologies Give Birth To A New Breed Of Prenatal Tort, Nancy Hansbrough

Cleveland State Law Review

It seems inevitable that new causes of action will evolve as more childless couples resort to the use of the new reproductive methodologies. The prenatal tort claims abounding in precedent today lay a firm foundation for the recognition of a new form of tort liability. This Note will first examine briefly the history of prenatal torts, and present the status of recovery today. The Note will then examine the history and current status of the doctrine of parent-child immunity in the United States. Concentrating on these two concepts, the nature of a tort claim by an injured child for prenatal …

The Tort Liability Of Investigative Reporters, John W. Wade

Vanderbilt Law Review

One of the most significant developments in recent years, in both constitutional and tort law, began with the holding in New York Times v. Sullivan that the first amendment places substantial restrictions on the common law tort action for defamation. Although the ramifications of New York Times are still developing,that continuing reform of the law of defamation will result is to be expected. The readjustment of the balancing of conflicting interests that New York Times represents came about at the behest of the press,and the press have been the primary beneficiaries of these developments. Indeed, some commentators contend that the …

Recent Developments In Tort Law And The Federal Courts, John W. Wade

Kentucky Law Journal

No abstract provided.

Generic Product Risks: The Case Against Comment K And For Strict Tort Liability, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

The author considers whether strict liability should be imposed for injuries caused by products that pose generic risks--risks that do not derive from flaws in the manufacturing process but from product design or from the very nature of the product. He reviews the American Law Institute (ALI) debate that preceded adoption of section 402A of the Restatement (Second) of Torts and finds the ambiguous meaning of comment k, which deals with "unavoidably unsafe" products, of little use in determining whether section 402A applies to generic product risks. After examining the policy justifications for imposing strict liability in cases involving design …

On Product "Design Defects" And Their Actionability, John W. Wade

Vanderbilt Law Review

This Article has tried to explain and discuss these developments, to evaluate them, to show their relationship to the general state of the law, and to make suggestions on how far they should affect its future development. At present, the question of "design defects" and the determination of when a product is actionable because of the nature of its design appears to be the most agitated and controversial question before the courts in the field of products liability. I hope that this Article can be of some help to the courts in seeking to develop the most suitable answer to …