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Full-Text Articles in Law
The Federal Employers' Liability Act, A Bane For Workers, A Bust For Railroads, A Boon For Lawyers, Victor E. Schwartz, Liberty Mahshigian
The Federal Employers' Liability Act, A Bane For Workers, A Bust For Railroads, A Boon For Lawyers, Victor E. Schwartz, Liberty Mahshigian
San Diego Law Review
This Article examines the Federal Employers' Liability Act (FELA). The authors chronicle the development of the FELA, and details the inadequacies of the act as a compensation mechanism for injured railroad workers. The authors argue that the FELA is outdated and counter-productive, because recovery under the FELA requires considerable litigation and a large amount of the costs involved are directed to legal fees and administration. The authors further argue that workers' compensation mechanisms are more suitable for railroad workplace injuries and call for the repeal of the FELA.
Alternatives To The Tort System For Personal Injury, Jeffrey O'Connell
Alternatives To The Tort System For Personal Injury, Jeffrey O'Connell
San Diego Law Review
This Article critiques the use of the tort liability system to resolve claims for personal injury and argues that this system is cumbersome and fortuitous. In an effort to resolve these difficulties, the author reviews the various alternatives to the use of the tort liability system and proposes a statute under which a defendant would be given the option of offering to pay periodically the claimant's net economic loss. In the alternative, the author proposes that sellers of products or services put in effect an insurance policy or product warranty binding the seller to tender within a short period the …
Economic Loss In American Tort Law: The Examples Of J'Aire And Of Products Liability, Gary T. Schwartz
Economic Loss In American Tort Law: The Examples Of J'Aire And Of Products Liability, Gary T. Schwartz
San Diego Law Review
This Article examines the issues surrounding the application of tort doctrine to problems of economic loss. The author examines the holdings in J'Aire Corp. v. Gregory, a California decision that established a general economic loss tort, and Seely v. White Motor Corp., another California decision that refused to extend tort coverage to economic losses resulting from defective products. The author discusses the application of products liability doctrine to cases of economic loss, and argues that traditional tort law needs to account for other legal doctrines, such as the common law of contracts. In conclusion, the author endorses the rule of …
Should Tort Law Protect Property Against Accidental Loss, Richard Abel
Should Tort Law Protect Property Against Accidental Loss, Richard Abel
San Diego Law Review
This Article addresses the question of whether tort law should protect property interests against unintentional interference. The author argues that tort damages for accidental harm to property violate the fundamental values of autonomy, equality, and community, and that tort law recognizes that property is less important than personal integrity. The author further argues that state action, including judicial decision-making that seeks to protect property against inadvertent damage either, is unprincipled and arbitrary. The author concludes that tort liability for accidental injury to property cannot be defended as a means of reducing secondary accident costs, it entails very high transaction costs, …
Strict Tort Liability Of Landlords: Becker V. Irm Corp. In Context, Virginia E. Nolan, Edmund Ursin
Strict Tort Liability Of Landlords: Becker V. Irm Corp. In Context, Virginia E. Nolan, Edmund Ursin
San Diego Law Review
This Article examines the California Supreme Court's decision in Becker v. IRM Corp., in which it held that landlords are subject to strict tort liability. The authors argue that this holding is in stark contrast to the traditional rules that granted landlords a broad immunity, even from negligence liability, when tenants or others were injured by defective conditions on the leased premises. The authors survey the law of landlord liability and examine the issues raised by the Becker decision. The authors suggest that the Becker decision is not an unprecedented step into uncharted territory, but rather the culmination of more …
California's Micra: The Need For Legislative Reform, Louis Arnell
California's Micra: The Need For Legislative Reform, Louis Arnell
San Diego Law Review
This Comment examines the effects of the tort reform provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA). The author argues that MICRA divests medical malpractice victims of the traditional protections governing personal injury litigation, while granting broad immunity to negligent health care providers. The author examines the discriminatory effects created by MICRA and argues that its sweeping tort reforms undermine California's policy of fault-based liability. The author concludes by calling on the California legislature to amend MICRA and provides several suggestions for revision.
Substantive Consolidation: The Back Door To Involuntary Bankruptcy, Jeanne Mackinnon
Substantive Consolidation: The Back Door To Involuntary Bankruptcy, Jeanne Mackinnon
San Diego Law Review
This Comment examines the use of motions for substantive consolidation or to amend the caption as a means to consolidate the assets of a non-debtor with those of a debtor. The author examines two conflicting bankruptcy court decisions, one of which permitted such consolidation, thus making the non-debtor an involuntary debtor via a summary proceeding, without providing statutory protections normally afforded involuntary debtors, and another which refused to permit consolidation of non-debtor and debtor assets and liabilities. The author discusses the constitutional and statutory protections which apply to non-debtors in these circumstances, as well as the procedural safeguards that exist …
California's Sliding Scale Settlement Agreements - Finality Instead Of Fairness, Marianne Shipp
California's Sliding Scale Settlement Agreements - Finality Instead Of Fairness, Marianne Shipp
San Diego Law Review
This Comment examines the history of California's "good-faith" settlement law and the sliding scale agreement in light of the California Supreme Court's decision in Tech-But v. Woodward-Clyde, which required more than mere non-collusion for a settlement to be in "good faith." The author examines the policies underlying settlements by joint tortfeasors and suggests that sliding-scale agreements have minimal value in our legal system. The author further argues that these agreements continue to be used, contrary to the policy objectives delineated in Tech-But. The author concludes with legislative proposals to maximize economic fairness to non-settling tortfeasors while encouraging equitable settlements.