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Full-Text Articles in Law
Tort Duties Of Landowners: A Positive Theory, Keith N. Hylton
Tort Duties Of Landowners: A Positive Theory, Keith N. Hylton
Faculty Scholarship
One of the most controversial areas of modern tort law is that of the duty of landowners toward people who visit their land. The common law divided land visitors into three types: invitees, licensees, and trespassers. The highest duty of care was owed to the invitee and the lowest to the trespasser. The distinctions led courts to hand down harsh decisions and to draw formal lines between the categories that seemed to defy common sense at times. This paper explains the incentive-based function of the classical landowner duties. I will argue that the classical duties served useful regulatory functions. The …
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Faculty Scholarship
Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs …
Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff
Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff
Faculty Scholarship
Because tort law generally and healthcare regulation specifically are traditional state functions and because medical, legal, and insurance practices are highly localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. Indeed, this view is so widely held that modern legal scholarship takes it for granted. Articles on general federalism issues use medical malpractice as an easy example of a policy in which federal intervention lacks functional justification, and articles that focus on federalization of other tort reforms use medical malpractice as an easy foil, pointing out that the uniformity interest that justifies …