Law Commons^™

Underclaiming And Overclaiming, Sachin Pandya, Peter Siegelman

Peter Siegelman

Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.

Attribution Of Liability For Workplace Injuries Caused By Non-Employees- Recent Developments In The Law Of Non-Delegable Duty, Neil J. Foster

Neil J Foster

What I do in this paper is to open up in a fairly preliminary way an area of the law relating to attribution of liability that, while it has been around for a long time, I think is increasingly being misunderstood by scholars and the courts. I will mostly focus on the application of this principle in relation to workplace injuries, partly because that constitutes a significant area of its past and present application.

Tort Law: The Languages Of Duty, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

A Process Theory Of Torts, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

Probabilistic Knowledge Of Third-Party Trademark Infringement, Mark Mckenna

Mark P. McKenna

No abstract provided.

Football And Cigarettes: A Legal Perspective On The Nfl's Concussion Crisis, Annette Greenhow

Annette Greenhow

A summary of the NFL Concussion Litigation and the analogies made in the US Congressional Hearings to 'Big Tobacco'

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Donald G Gifford

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …

¿Si Te Toco, Te Pago? Lo Dices ¿En Serio?: Contextualizando La Teoría Del Contacto Social, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.

Los Daños Punitivos En El Proyecto De Reformas (Punitive Damages In The Ammendment Bill), Leonardo A. Urruti

Leonardo Abel Urruti

No Fault, No Foul: Litigating First-Party-Benefit Cases—Part Ii, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

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

Paul Figley

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 …

Medical Malpractice, The Affordable Care Act And State Provider Shield Laws: More Myth Than Necessity?, Mary Ann Chirba, Alice Noble

Mary Ann Chirba

Given the ambitions and reach of the Affordable Care Act, confusion about its intended and inadvertent impact is inevitable. Since its enactment in 2010, the ACA has raised legitimate and less grounded concerns among various stakeholders ranging from individuals and employers facing coverage mandates to States deciding whether and how to implement the Act’s Medicaid expansions. One item has received far less attention even though it weighs heavily on any provider engaged in the clinical practice of medicine: the ACA’s impact on medical malpractice liability. The Act does little to address medical malpractice head on. Nevertheless, physicians and other providers, …

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Donald G Gifford

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …

Medical Malpractice Reform Measures And Their Effects, Robert Leflar

Robert B Leflar

New rules and methods for medical injury dispute resolution have been launched in New Hampshire and New York, and demonstration projects are underway elsewhere. This article describes major medical malpractice reforms undertaken and proposed in recent years. Reforms are classified as (1) liability-limiting initiatives favoring health-care providers; (2) procedural innovations promoted as improving dispute resolution processes, such as patient compensation funds, “sorry” laws, disclosure and early offer laws, health courts, and safe harbor laws; and (3) major conceptual reforms to move liability away from physicians to hospitals or administrative no-fault compensation systems. Empirical evidence about the practical effects of already-implemented …

Introductory Remarks: Explaining Tort Law, Michael S. Green

Michael S. Green

No abstract provided.

A Somewhat Modest Proposal To Prevent Adultery And Save Families: Two Old Torts Looking For A New Career, William R. Corbett

William R. Corbett

No abstract provided.

Fifteen Minutes Of Infamy: Privileged Reporting And The Problem Of Perpetual Reputational Harm, Richard J. Peltz-Steele

Richard J. Peltz-Steele

This Article provides an overview of the labyrinth of media tort defenses, specifically the four privileges – fair comment, fair report, neutral reportage, and wire service – that come into play when the media republish defamatory content about criminal suspects and defendants without specific intent to injure. The Article then discusses these privileges in light of a hypothetical case involving a highly publicized crime and an indicted suspect, against whom charges are later dropped, but who suffers perpetual reputational harm from the out-of-context republication online of news related to his indictment. The Article demonstrates how the four privileges would operate …

U.S. Business: Tort Liability For The Transnational Republisher Of Leaked Corporate Secrets, Richard Peltz-Steele

Richard J. Peltz-Steele

Wikileaks, the web enterprise responsible for the unprecedented publication of hundreds of thousands of classified government records, is reshaping fundamental notions of the freedom of information. Meanwhile more than half of records held by Wikileaks are from the private sector, and the organization has promised blockbuster revelations about major commercial players such as big banks and oil companies. This paper examines the potential liability under U.S. business-tort law for Wikileaks as a transnational republisher of leaked corporate secrets. The paper examines the paradigm for criminal liability under the Espionage Act to imagine a construct of civil liability for tortious interference …

Medical Malpractice Screening Panels: An Update And Assessment, Jean Eggen

Jean M. Eggen

No abstract provided.

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Peter Zablotsky

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

Responsive Regulation And Application Of Grading Systems In The Food Safety Regulatory Regimes Of Developing Countries, Abu Noman M. Atahar Ali

Abu Noman Mohammad Atahar Ali

The traditional tit-for-tat philosophy in the food safety regulatory regime in most developing countries has been proven ineffective in most cases. Rather, starting with persuasion, advice, and then escalating to more severe punishments for the continuing non-compliance as suggested in the responsive regulation by Ayres and Braithwaite has been proved more effective in the food safety regulatory regime of some jurisdictions. Responsive regulation aims to increase responsibility among corporations. So, if a corporation shows responsibility, it should be rewarded, and if a corporation shows irresponsibility, it should be reprimanded (if necessary). There is no logic in seeing and treating every …

Navigating Between Scylla And Charybdis: Preemption Of Medical Device “Parallel Claims”, Jean Eggen

Jean M. Eggen

The scope of federal preemption of state common law medical device claims has been vigorously debated since the Medical Device Amendments were enacted in 1976. Currently, a hot-button topic is the extent to which either express or implied preemption may bar state device claims that parallel duties imposed by the federal government’s Food, Drug, and Cosmetic Act. The author analyzes a selection of recent lower court cases in light of Congressional intent and Supreme Court precedent. This article provides some guiding principles to achieve greater consistency and predictability in parallel claim preemption decisions. The author then concludes that preemption doctrine …

"Unnatural Deaths," Criminal Sanctions, And Medical Quality Improvement In Japan, Robert B. Leflar

Robert B Leflar

A worldwide awakening to the high incidence of preventable harm resulting from medical care, combined with pressure on hospitals and physicians from liability litigation, has turned international attention to the need for better structures to resolve medical disputes in a way that promotes medical safety and honesty toward patients. The civil justice system in the United States, in particular, is criticized as inefficient, arbitrary, and sometimes punitive. It is charged with undermining sound medical care by encouraging wasteful expenditures through defensive medicine; by driving information about medical mistakes underground where it escapes analysis, undercutting quality improvement efforts; and by forcing …

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Sarah H. Ludington

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

A Cap On The Defendant's Appeal Bond?: Punitive Damages Tort Reform, Doug Rendleman

Doug Rendleman

None available.

A Cap On The Defendant's Appeal Bond?: Punitive Damages Tort Reform, Doug Rendleman

Doug Rendleman

None available.

The Three Voices Of Libel, Randall Bezanson, Brian C. Murchison

Brian C. Murchison

No abstract provided.

The Part And Parcel Of Impairment Discrimination, Michelle Travis

Michelle A. Travis

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the …

Two Roads Diverge For Civil Recourse Theory, Christopher Robinette

Christopher J Robinette

When Is Emotional Distress Harm?, Gregory C. Keating

Gregory C. Keating

In 1968, the California Supreme Court decided Dillon v. Legg, to this day the most famous American negligent infliction of emotional distress (NIED) case. In a nutshell, Dillon ruled that, henceforth, the scope of liability for negligent infliction of emotional harm would be governed by the same principle of reasonable foreseeability which governs the scope of liability for the infliction of physical harm. In retrospect, Dillon brought to a close an important period of American negligence law. Early in the twentieth century, in his celebrated MacPherson and Palsgraf decisions, Benjamin Cardozo made reasonable foreseeability the cornerstone of both duty and …