Law Commons^™

The Euclid Proviso, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

Defamation And Privacy In The Social Media Age: What Would Justice Brennan Think?, Stephen Wermiel

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No abstract provided.

Jesner V. Arab Bank, Rebecca Hamilton

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The exclusion of transnational human rights litigation from U.S. federal courts is, for most practical purposes, now complete. On April 24, 2018, the U.S. Supreme Court delivered a 5–4 ruling in Jesner v. Arab Bank, deciding that foreign corporations cannot be sued under the Alien Tort Statute (ATS).

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark Niles

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Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem ofprosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors arep rotectedfrom any liability arisingf rom these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application ofabsolute prosecutorial immunity, in part, by noting that other means of incentivizing appropriate prosecutorial conduct …

The Affordable Care Act Is Not Tort Reform, Andrew F. Popper

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On March 23, 2010, President Obama signed The Patient Protection and Affordable Care Act (PPACA). Prior to the enactment of the PPACA, Congress held several hearings focused on subrogation and relaxation of collateral source restrictions as well as caps on damages in an effort to promote tort reform. While the ACA included provisions on medical liability reform, the suggested tort reform was thwarted, and the ACA had no actual legal effect on limiting medical malpractice liability. This article argues that the reality is that the PPACA has done nothing to change the admissibility of collateral sources nor has it enhanced …

The Judgment Fund: America's Deepest Pocket & Its Susceptibility To Executive Branch Misuse, Paul F. Figley

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Over the last thirty-five years, the United States government has paid out billions of dollars in settlements that have had no fiscal consequences for the agencies whose actions caused the claims. It has done so through the Judgment Fund, a relatively unknown permanent, indefinite appropriation originally created by Congress almost half a century ago to pay certain types of judgments entered against the United States.

Congress struggled for nearly two hundred years to find a way to exercise its Appropriations Clause authority over claims payments that did not drown its members in procedural detail. The article surveys that history. Through …

Hitting A Home Run In Your Writing, David Spratt

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No abstract provided.

The Illusion Of Autonomy In Women's Medical Decision-Making, Jamie Abrams

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This article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy. This article instead considers the …

Through Our Glass Darkly: Does Comparative Law Counsel The Use Of Foreign Law In U.S. Constitutional Adjudication?, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This (35 pp.) essay appears as a contribution to a law review symposium on the work of Harvard Law School professor Mary Ann Glendon in comparative law. The essay begins by asking what comparative law as a scholarly discipline might suggest about the use of foreign (or unratified or nationally "unaccepted" international law) by US courts in US constitutional adjudication. The trend seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period.

Practical politics within the US …

Distorted And Diminished Tort Claims For Women, Jamie Abrams

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Childbirth is distinctly characterized in tort law by the literal emergence of a potential putative plaintiff. This Article seeks to position the birthing woman — distinct from the pregnant woman or the parent — squarely within the negligence framework and, in doing so, to challenge prevailing assumptions dominating obstetric medical decision-making. The existence of two patients and two putative plaintiffs is unique to childbirth, yet largely unexamined in tort. This Article examines how the dominant focus on fetal harms in modern childbirth overshadows the birthing woman in tort and distorts the normative dualities of childbirth.

While theoretically childbirth falls within …

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

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Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, Fernanda Nicola

Articles in Law Reviews & Other Academic Journals

Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a …

Using Problems To Teach Quantitative Damages In A First Year Torts Class, Paul F. Figley

Articles in Law Reviews & Other Academic Journals

This article suggests an exercise that demonstrates to beginning law students the complexity of calculating damages in personal injury litigation. It shows the straight-forward method of calculating the lost future earnings of an injured working adult, and the greater complexity of calculating the lost future earnings of an injured child. It explains how to use life expectancy tables and work-life expectancy tables to calculate lost future income. It shows how to use future value tables to compute the amount of money needed today to replace a flow of income for a set period in the future. It provides examples of …

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

Rethinking The New Public Health, Lindsay Wiley

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This Article contributes to an emerging theoretical debate over the legitimate scope of public health law by linking it to a particular doctrinal debate in public nuisance law. State and local governments have been largely stymied in their efforts to use public nuisance litigation against harmful industries to vindicate collectively-held, common law rights to non-interference with public health and safety. The ways in which this litigation has failed are instructive for a broader movement in public health that is only just beginning to take shape. In response to evolving scientific understanding about the determinants of health, public health advocates are …

Learning From The Master: Things Betty Thompson Taught Me, David Spratt

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No abstract provided.

The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew F. Popper

Articles in Law Reviews & Other Academic Journals

Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to …

Ethical Intersections & The Federal Tort Claims Act: An Approach For Government Attorneys, Paul F. Figley

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This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible …

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Articles in Law Reviews & Other Academic Journals

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

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his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Defending The Majoritarian Court, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Patient Negligence: The Unreasonableness Of Relying On Trust, Song Richardson

Articles in Law Reviews & Other Academic Journals

This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.

In this collaboration, the authors imagine and …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Appropriations Power And Sovereign Immunity, Paul F. Figley

Articles in Law Reviews & Other Academic Journals

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

Negligence In The Air: The Duty Of Care In Climate Change Litigation, David Hunter, James Salzman

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No abstract provided.

Lessons From The World Trade Center For Open Space Planning Generally And Boston's Big Data Specifically, Mary Clark

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This paper looks to several land use planning issues at stake in both the World Trade Center redevelopment and Central Artery/ Tunnel Project, offering some lessons for the future of public open space planning with respect to the inºuence of the press, the centrality of politics, the urgency of addressing public and private claims of land ownership, the need to engage the public, and seizing the opportunity to create new public transportation links.

Pulliam V. Coastal Emergency Services Of Richmond, Inc.: Reconsidering The Standard Of Review And Constitutionality Of Virginia's Medical Malpractice, Elizabeth Keith

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Consider the following scenario. A plaintiff is injured in a devastating automobile accident and a jury finds the other driver negligent. As a result of that driver's negligence, the plaintiff is now a quadriplegic. The jury, after careful deliberation and calculation, awards $4.5 million to the plaintiff consisting of both economic damages for past and future medical expenses, as well as non-economic damages for pain and suffering and loss of enjoyment of life. Now consider a similar scenario. The plaintiff is a patient who is injured during a low-risk surgical procedure and a jury finds the surgeon negligent. As a …

Rape In Wartime: Redress In United States Courts Under The Alien Tort Claims Act, Susana Sácouto

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A One Term Tort Reform Tale: Victimizing The Vulnerable, Andrew F. Popper

Articles in Law Reviews & Other Academic Journals

During its spring 1997 term, Congress passed the Volunteer Protection Act and considered but did not pass the Biomaterials Access Assurance Act of 1997. The Volunteer Protection Act provides a wide range of tort immunities to volunteers working for charitable organizations. The Biomaterials Access Assurance Act would have provided tort immunity to biomaterials producers. In this Article, the author examines the origins and possible implications of both these tort reform proposals from a class-based perspective and within the broader context of the ongoing tort reform debate. The author concludes that both of these proposals ultimately would harm individuals in vulnerable …

Tort Reform Policy More Than State Law Dominates Section 2 Of The Third Restatement, Andrew Popper

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No abstract provided.