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Articles 61 - 89 of 89
Full-Text Articles in Law
Constitutional Decision Rules For Juries, Catherine T. Struve
Constitutional Decision Rules For Juries, Catherine T. Struve
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Recent scholarship on constitutional decision rules distinguishes courts from other constitutional decision makers, but has not explored distinctions - within the judicial institution - between judges and juries. Correlatively, social science literature on jury comprehension has proposed methods for improving jury instructions, but that literature has not considered in any detail the doctrinal complexities of constitutional law. This Article, drawing upon both fields, presents an agenda for crafting constitutional decision rules specifically for juries. Implementing this agenda will enhance the adjudication of constitutional tort claims, and could also render constitutional doctrine more accessible to non-lawyers.
Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
Initial Interest Confusion: Standing At The Crossroads Of Trademark Law, Jennifer E. Rothman
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While the benchmark of trademark infringement traditionally has been a demonstration that consumers are likely to be confused by the use of a similar or identical trademark to identify the goods or services of another, a court-created doctrine called initial interest confusion allows liability for trademark infringement solely on the basis that a consumer might initially be interested, attracted, or distracted by a competitor's, or even a non-competitor's, product or service. Initial interest confusion is being used with increasing frequency, especially on the Internet, to shut down speech critical of trademark holders and their products and services, to prevent comparative …
Preclusion In Class Action Litigation, Tobias Barrington Wolff
Preclusion In Class Action Litigation, Tobias Barrington Wolff
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"Despite the intense focus that courts and commentators have trained upon class litigation for the last twenty-five years, a central feature of the class-action lawsuit has received no sustained attention: the preclusive effect that a judgment in a class action should have upon the other, non-class claims of absentees. The omission is a serious one. If claim and issue preclusion were to operate in their normal mode when a claim is certified for class treatment, absentees would sometimes face a serious threat of having their high-value individual claims compromised. Such a threat, in turn, can create ex ante conflicts of …
The Fda And The Tort System: Postmarketing Surveillance, Compensation, And The Role Of Litigation, Catherine T. Struve
The Fda And The Tort System: Postmarketing Surveillance, Compensation, And The Role Of Litigation, Catherine T. Struve
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The dispute over FDA regulatory preemption is familiar: Preemption advocates assert that products liability suits stifle innovation, and proponents of tort liability counter that the FDA fails adequately to protect the public and that persons injured by defective products deserve compensation. The FDA's premarket approval process cannot detect all potential safety problems with a new drug; postmarketing surveillance is essential, and the FDA's efforts in that regard fall short. Advocates of preemption will find it difficult to establish that FDA regulation should entirely displace the tort system. This article examines whether a case could be made for an intermediate approach …
Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker
Liability Insurance As Tort Regulation: Six Ways That Liability Insurance Shapes Tort Law In Action, Tom Baker
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Leaving aside difficult to interpret doctrinal developments, such as the abrogation of traditional immunities, liability insurance has at least the following six impacts on tort law in action. First, for claims against all but the wealthiest individuals and organizations, liability insurance is a de facto element of tort liability. Second, liability insurance limits are a de facto cap on tort damages. Third, tort claims are shaped to match the available liability insurance, with the result that liability insurance policy exclusions become de facto limits on tort liability. Fourth, liability insurance makes lawsuits against ordinary individuals and small organizations into repeat …
Medical Malpractice And The Insurance Underwriting Cycle, Tom Baker
Medical Malpractice And The Insurance Underwriting Cycle, Tom Baker
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No abstract provided.
The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler
The Virtues Of Uncertainty In Law: An Experimental Approach, Tom Baker, Alon Harel, Tamar Kugler
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Predictability in civil and criminal sanctions is generally understood as desirable. Conversely, unpredictability is condemned as a violation of the rule of law. This paper explores predictability in sanctioning from the point of view of efficiency. It is argued that, given a constant expected sanction, deterrence is increased when either the size of the sanction or the probability that it will be imposed is uncertain. This conclusion follows from earlier findings in behavioral decision research and the results of an experiment conducted specifically to examine this hypothesis. The findings suggest that, within an efficiency framework, there are virtues to uncertainty …
Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker
Teaching Real Torts: Using Barry Werth's Damages In The Law School Classroom, Tom Baker
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No abstract provided.
Method And Principle In Legal Theory, Stephen R. Perry
Method And Principle In Legal Theory, Stephen R. Perry
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No abstract provided.
Freedom Of Speech And True Threats, Jennifer E. Rothman
Freedom Of Speech And True Threats, Jennifer E. Rothman
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This article proposes a new test for determining what is a true threat - speech not protected by the First Amendment. Despite the importance of the true threats exception to the First Amendment, this is an underexplored area of constitutional law.
Even though the Supreme Court has made clear that true threats are punishable, it has not clearly defined what speech constitutes a true threat. To make this determination circuit courts have adopted inconsistent and inadequate tests including a reasonable listener test. The Supreme Court has never granted certiorari to resolve the issue.
The law surrounding threats has gained recent …
Two Observations On Holocaust Claims, William W. Bratton
Two Observations On Holocaust Claims, William W. Bratton
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No abstract provided.
The Futures Problem, Geoffrey C. Hazard Jr.
The Futures Problem, Geoffrey C. Hazard Jr.
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Perhaps the most difficult problem in addressing mass torts is that of future claimants. "Futures" are those who do not now have claims, because injury has not been sufficiently manifested, but who may well have claims in the future. The Supreme Court's decisions in Amchem and Ortiz appear to have foredoomed any procedural mechanism by which to resolve future claims. This, in turn, will leave defendants in mass tort cases with greatly reduced incentives to participate in mass settlement. That implication makes the possibility of reforms in substantive law perhaps more attractive. In addition, these decisions invite further questions about …
Foreword: Causes And Limits Of Pessimism, Stephen B. Burbank
Foreword: Causes And Limits Of Pessimism, Stephen B. Burbank
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No abstract provided.
Introduction, Anthony J. Scirica
Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.
Judgment Proofing, Bankruptcy Policy, And The Dark Side Of Tort Liability, Charles W. Mooney Jr.
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No abstract provided.
Of False Teeth And Biting Critiques: Jones V. Fisher In Context, Regina Austin
Of False Teeth And Biting Critiques: Jones V. Fisher In Context, Regina Austin
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No abstract provided.
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii
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Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …
Transforming Punishment Into Compensation: In The Shadow Of Punitive Damages, Tom Baker
Transforming Punishment Into Compensation: In The Shadow Of Punitive Damages, Tom Baker
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No abstract provided.
Reconsidering Insurance For Punitive Damages, Tom Baker
Reconsidering Insurance For Punitive Damages, Tom Baker
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No abstract provided.
Products Liability And Legal Leverage: The Perverse Effect Of Stiff Penalties, Michael S. Knoll
Products Liability And Legal Leverage: The Perverse Effect Of Stiff Penalties, Michael S. Knoll
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No abstract provided.
Conflicts And Defense Lawyers: From Triangles To Tetrahedrons, Tom Baker
Conflicts And Defense Lawyers: From Triangles To Tetrahedrons, Tom Baker
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No abstract provided.
On The Genealogy Of Moral Hazard, Tom Baker
On The Genealogy Of Moral Hazard, Tom Baker
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No abstract provided.
The Irrelevance Of The Intended To Prima Facie Culpability: Comment On Moore, Claire Oakes Finkelstein
The Irrelevance Of The Intended To Prima Facie Culpability: Comment On Moore, Claire Oakes Finkelstein
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No abstract provided.
The Moral Foundations Of Tort Law, Stephen R. Perry
The Moral Foundations Of Tort Law, Stephen R. Perry
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No abstract provided.
Tort Law As A Comparative Institution, Claire Oakes Finkelstein
Tort Law As A Comparative Institution, Claire Oakes Finkelstein
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No abstract provided.
The Power Of Private Facts, Anita L. Allen
The Power Of Private Facts, Anita L. Allen
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No abstract provided.
How Privacy Got Its Gender, Anita L. Allen, Erin Mack
How Privacy Got Its Gender, Anita L. Allen, Erin Mack
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No abstract provided.
The Qualified Immunity Doctrine In The Supreme Court: Judicial Activism And The Restriction Of Constitutional Rights, David Rudovsky
The Qualified Immunity Doctrine In The Supreme Court: Judicial Activism And The Restriction Of Constitutional Rights, David Rudovsky
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No abstract provided.
Employer Abuse, Worker Resistance, And The Tort Of Intentional Infliction Of Emotional Distress, Regina Austin
Employer Abuse, Worker Resistance, And The Tort Of Intentional Infliction Of Emotional Distress, Regina Austin
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No abstract provided.