Law Commons^™

A Case Study In The Superiority Of The Purposive Approach To Statutory Interpretation: Bruesewitz V. Wyeth , Donald G. Gifford, William L. Reynolds, Andrew M. Murad

William L. Reynolds

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite …

Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury

Jean M. Eggen

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort …

Statutes And Civil Liability In The Commonwealth And The United States: A Comparative Critique, Neil J. Foster

Neil J Foster

Both the major “common law” systems of private law allow breach of a criminal statute to inform or create civil liability. This paper discusses the differences and similarities between the Commonwealth jurisdictions and the United States of America in this somewhat under-theorised area. The aim is not to resolve all the problems presented by the jurisprudence and commentary on these various forms of action, but to provide a starting point for comparison between the approaches that the two systems have adopted on this issue of implied statutory civil liability. It is hoped that a proper understanding of the development of …

A Tale Of Two Ironies: In Defense Of Tort, David Partlett, William Gill

William Gill

New York's Law Of Tax Malpractice Damages: Balanced Or Biased?, Jacob L. Todres

Jacob L. Todres

In this article Professor Todres focuses on two common elements of damages often incurred by plaintiffs who are the victims of negligently rendered incorrect tax advice—additional, avoidable taxes, and interest on underpaid taxes. Both of these types of damages appear not to be recoverable under current New York law that traces its roots to Alpert v. Shea Gould Climenko and Casey, 160 A.D.2d 67, 559 N.Y.S.2d 312 (1st Dept. 1990).

As to the non-recovery of additional taxes that could have been avoided with correct advice, Professor Todres argues that current New York law is incorrect. It is based upon Alpert, …

The Hedonic Impact Of Stand-Alone Emotional Harms: An Analysis Of Survey Data, David E. Depianto

David E. DePianto

This paper employs survey data on subjective well-being and a battery of self-assessed health measures to estimate the hedonic impact of emotional health, as decoupled from its physical counterpart. The disaggregation of global health into physical and emotional components is done with a parochial eye toward tort law, which has historically drawn a distinction between physical and emotional harms, limiting recovery on the latter — particularly “stand-alone” emotional harms —through various common law doctrines. The results of three sets of regression analyses suggest that a range of potentially inactionable emotional conditions, including emotional conditions with no concomitant physical manifestations, exert …

Workplace Health And Safety Law In Australia Update No 1, Neil J. Foster

Neil J Foster

This is one of a series of updates I will be issuing to provide notes of recent developments in Workplace Health and Safety Law which either have occurred after the book was published, or which I hadn't noticed previously. Update No 1 deals with changes to the common law in relation to actions for nervous shock by relatives of workers who are killed or injured by their employer's negligence.

Review Of "Liability For Wrongful Interferences With Chattels" By Simon Douglas (2011), Neil J. Foster

Neil J Foster

A review of a recent monograph dealing with the way the common law protects property rights in personal property.

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Christopher C. French

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Christopher C. French

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Christopher C. French