Law Commons^™

Unenforceable Waivers, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law Review

Textbook tort law establishes that waivers of liability—-especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such …

Evil Nudges, Michal Lavi

Vanderbilt Journal of Entertainment & Technology Law

The seminal book Nudge by Richard Thaler and Cass Sunstein demonstrates that policy makers can prod behavioral changes. A nudge is "any aspect of the choice architecture that alters people's behavior in a predictable way without forbidding any options or significantly changing their economic incentives." This type of strategy, and the notion of libertarian paternalism at its base, prompted discussions and objections. Academic literature tends to focus on the positive potential of nudges and neglects to address libertarian paternalism that does not promote the welfare of individuals and third parties, but rather infringes on it-a concept this Article refers to …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

What Are We Reforming? Tort Theory's Place In Debates Over Malpractice Reform, John C.P. Goldberg

Vanderbilt Law Review

Those who are reforming medical malpractice law, or studying its reform, ought to attend to tort theory. This is not because theory will settle difficult policy debates. But it does enable reformers and scholars to be more aware of how under-appreciated and possibly dubious assumptions or inferences might be skewing their analyses. In this Essay, I aim to make this point with two examples.

My first example concerns under-litigation-the apparent fact that a substantial percentage of persons with injuries plausibly traceable to malpractice never sue their doctors.' Assume this is a real phenomenon. What are we to make of it? …

Rider Beware: Relying On The Courts And A Nationalized Rating System To Address The Duty Of Care Owed To Amusement Park Attraction Guests, Tobias Butler

Vanderbilt Journal of Entertainment & Technology Law

This note explores the history of amusement park attraction regulation, including both the legislative and judicial treatment, and highlights the deficiencies in court approaches in light of "common carrier" law. First, is a brief history of thrill attractions in America as well as regulation of these attractions by both the legislature and judiciary. Specifically it will discuss the major approaches courts have taken in applying or refusing to apply the "common carrier" definition to these attractions. Second, it will analyze why any standard less than "utmost care" does not provide sufficient power for the courts to create a consistent standard …

The Inevitability Of Aggregate Settlement: An Institutional Account Of American Tort Law, Samuel Issacharoff, John F. Witt

Vanderbilt Law Review

For the past decade or so, important aspects of American tort law have sought to reaffirm tort's ostensible commitment to individualized justice. In the courts, "the elephantine mass of asbestos cases"' has produced a reaffirmation of what Justice Souter in Ortiz v. Fibreboard Corporation called the "day-in-court ideal": "our deep- rooted historic tradition that everyone should have his own day in court." The academy, in turn, appears to be in the midst of a sustained revival of the closely related idea that tort law consists in the reciprocal relationship between plaintiff and defendant, in which the bipolarity of the dispute …

Corrective Justice In Contract Law: Is There A Case For Punitive Damages?, Curtis Bridgeman

Vanderbilt Law Review

Twentieth-century American legal theory has been dominated by utilitarian and economic approaches. As a result, scholarly analyses of contract and tort law have focused on the public effects of the resolution of private disputes. But in the last twenty years or so justice has undergone a renaissance as so-called corrective-justice theorists have tried to shift the discussion in private law back to the relationships between individual parties. Tort law has been a particularly fertile ground for corrective-justice theorists, and a lively debate has developed about what the best corrective-justice account of tort law would look like.

By contrast, comparatively little …

Unloved: Tort In The Modern Legal Academy, John C.P. Goldberg

Vanderbilt Law Review

In The Idea of Private Law, Ernest Weinrib makes an arresting claim. He says that private law-by which he means primarily the law of contract, restitution, and especially tort-is "just like love."'

Even members of a discipline devoted to analogies may be forgiven for not immediately perceiving the point of this one, particularly if we focus on the private law of tort. Few law students would mistake negligence, defamation, or battery for love, and if they did, their professors might be concerned for their well-being. Likewise, it is difficult to recall another law professor writing of love and tort in …

A Pragmatic Approach To Improving Tort Law, Catharine P. Wells

Vanderbilt Law Review

In 1923, a group of lawyers, judges, and teachers met to consider the desirability of forming the American Law Institute ("ALP) and of undertaking its ongoing project of restating the law. They began their deliberations with the recognition that the legal system had serious failings' and that the public was generally dissatisfied and skeptical about the justice it dispensed. The central difficulty with the system of justice, they thought, was the fact that legal outcomes were so uncertain. Uncertainty, they argued, made the legal system cumbersome, expensive and inaccessible; it denied justice to litigants and discouraged legitimate activities. The reasons …

Scientific Uncertainty And Causation In Tort Law, Mark Geistfeld

Vanderbilt Law Review

Tort cases involving scientific uncertainty frequently present courts with a difficult causation issue. In the paradigmatic case, the available scientific evidence indicates that a substance might be hazardous, but does not establish that the substance is hazardous.' When presented with such evidence, courts must decide whether the plaintiff has adequately proven that her injury was tortiously caused by the substance.

This causal issue potentially arises whenever we do not fully understand how a substance interacts with the body and produces an adverse health outcome. We do not, for example, adequately understand the etiology of cancer.2 To assess whether a substance …

Interpretive Construction, Systemic Consistency, And Criterial Norms In Tort Law, Jody David Armour

Vanderbilt Law Review

These brief remarks focus on the concepts of intent and recklessness in tort and how a Restatement should approach them. They center on three jurisprudential issues that are raised in any discussion of the basic building block concepts of a body of law, namely, the role of interpretive construction in the application of such concepts, the value of systemic consistency between such concepts and similar ones in other bodies of law, and, finally, the need to determine which concepts are criterial and which are merely evidential. They reflect my commentaries as a member of the panel on intent at the …

Removing Emotional Harm From The Core Of Tort Law, Martha Chamallas

Vanderbilt Law Review

My commentary is directed to one important feature of the new Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft")-the decision to remove liability for emotional harm from the core of tort law. As a Torts professor, I am very attracted to the Discussion Draft because to a large extent it tracks the way I structure and teach torts to first year students. It reflects what Professors Jack Balkin and Sanford Levinson describe as the pedagogical canon in torts, by highlighting those topics and subtopics that most professors emphasize in their scaled- down Torts course and including the material …

The Unexpected Persistence Of Negligence, 1980-2000, G. Edward White

Vanderbilt Law Review

In Tort Law in America: An Intellectual History, I made the general argument that the development of tort law in the nineteenth and twentieth centuries had been more influenced by ideas than previous scholars had suggested.' In making that argument I employed the terms "ideas" and "influence" at multiple levels of generality. The argument would perhaps have been better under- stood if I had more clearly particularized the specificity and generality of my claims about ideas as causal agents.

At the most specific level, I employed the term "ideas" to refer to particular doctrinal and policy proposals for tort law …

Restating Strict Liability And Nuisance, Robert E. Keeton

Vanderbilt Law Review

John Wade was a master of the craft of restating the law. The American Law Institute ("ALI") benefitted especially from his distinctive service during development of the Restatement (Second) of Torts. It is fitting that we use, as a vehicle for honoring his service, an inquiry into a segment of tort law that was first considered in the decades just after the Institute was founded and remains, even today, among the most difficult areas of law to restate. This segment of tort law concerns the general theory of strict liability and the extent that it applies to nuisance cases.

To …

The Impact Of The Drug Export Amendments Act Of 1986 On Foreign Tort Victims, James C. Grant

Vanderbilt Journal of Transnational Law

In response to domestic pharmaceutical producers' demands, Congress amended the Federal Food, Drug, and Cosmetic Act (FFDCA) on November 14, 1986. The advantages of foreign drug producers over United States drug producers prompted Congress to enact the Drug Export Amendments Act of 1986 (DEAA) which was designed to help United States drug producers compete effectively in the world market. The DEAA now puts domestic producers on more of an equal basis with the rest of the market by allowing them to export unapproved drugs.

The first section of this Note will examine the new amendment and outline its requirements. Then, …

Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive, Martin A. Kotler

Vanderbilt Law Review

The asserted unimportance of the defendant's motive underlying acts giving rise to tort liability is part of the conventional wisdom of most writers of basic tort texts.' Frequently, the irrelevance of the defendant's motivation is considered so obvious that many writers fail to discuss it at all, or discuss it only in the limited context of punitive damages. Virtually all of the literature that considers the significance of motive in tort law deals with either altruism, primarily in the rescue context, or spite, primarily in the punitive damages context. However,little, if any, of the literature considers the legal treatment of …

Mining With Mr. Justice Holmes, E. F. Roberts

Vanderbilt Law Review

All of us are probably familiar with the notion that the owner of mineral rights may owe some duty of care to support the owner of the fee in his or her surface use of the land. This principle results in a binary system (the surface estate and the right of sup-port) that can be treated easily in tort law. In Pennsylvania the coal companies had owned vast areas of land. The companies had sold much of this land, reserving not only the coal, but "the right to. ..remove the same without incurring in any way liability for any damage …

Products Liability - An Analysis Of Market Share Liability, David A. Fischer

Vanderbilt Law Review

This Article examines the market share liability theory to determine whether it can achieve the objective of treating both parties fairly. Although courts in the past have relaxed the plaintiff's burden of proof on the element of causation in fact, the question remains whether this relaxation is appropriate in DES cases, and,if so, whether market share liability is the most equitable method of implementing the relaxation. This Article suggests that the market share liability theory contains several serious flaws that render it unsuitable as a means for allowing plaintiffs to recover in DES cases. The Article criticizes the theory for …

Encouraging Safety: The Limits Of Tort Law And Government Regulation, Richard J. Pierce, Jr.

Vanderbilt Law Review

Society wants more expenditures to reduce the risks of injury,illness, and premature death associated with many activities, but simultaneously it wants the fruits of those activities to continue to be available at a low cost. To some extent, these goals are inherently in conflict. On occasion society may give vitality to the slogan that human life has an infinite value, but it can do so only in narrow contexts and for brief periods. More often, artful self-deception is practiced to create the appearance of adhering to an impossible, but widely held, ideal, while in actuality lives are balanced against dollars. …

The Uniform Product Liability Act--A Brief Overview, Victor E. Schwartz

Vanderbilt Law Review

There are many important aspects of the Uniform Act that have not been discussed herein including provisions on assumption of risk, punitive damages," and contribution among joint tort feasors. Nevertheless, the examples that have been given show that it is a law that attempts to balance the interests of product users and sellers. It is the Department's hope that state legislatures will give it serious consideration and that it will help bring about uniformity in the key areas of product liability law. As long as courts can retroactively create new and unprecedented product liability law, the specter of future product …

Landowner's Negligence Liability To Persons Entering As A Matter Of Right Or Under A Privilege Of Private Necessity, Donald W. Fish

Vanderbilt Law Review

In modem tort law, the liability of occupiers of land for their negligence depends in the first instance upon the status of the plaintiff upon the premises. This status generally determines the level of duty which the occupier owes him, and a vast body of case law has developed dealing with the many aspects of the question.Of the myriad classes of persons to whom some duty of care maybe owed by an occupier, perhaps those who enter the premises by virtue of a legal right, and irrespective of the consent of the occupier, present the most elusive problems in analysis. …

Some Recent Developments In The Substantive Law Of Workmen's Compensation, Wex S. Malone

Vanderbilt Law Review

After setting out the factors which make for change in the compensation structure, the author goes on to discuss three problem areas in which that change is clearly visible: distinguishing between employees and independent contractors, determining tho rights of a borrowed employee, and deciding whether an accident arose out of the employment. He concludes that the law of workmen's compensation is developing in consonance with the social philosophy which underlies it.

Book Reviews, Stanley D. Rose (Reviewer), Wallace Mendelson (Reviewer), Lawrence Herman (Reviewer), William R. Anderson (Reviewer)

Vanderbilt Law Review

THE PRESIDENCY OF JOHN ADAMS, THE COLLAPSE OF FEDERALISM, 1795-1800. By Stephen G. Kurtz-- Philadelphia: University of Pennsylvania Press, 1957. Pp. 448. $8.50.

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THE JEFFERSONIAN REPUBLICANS, THE FORMATION OF PARTY ORGANIZATION, 1789-1801. By Noble E. Cunningham, Jr.-- Chapel Hill: University of North Carolina Press, 1957. Pp. x, 279. $6.00.

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THE SUPREME COURT FROM TAFT TO WARREN-- By Alpheus T. Mason-- Baton Rouge: Louisiana State University Press, 1958. Pp. 250. $4.95.

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THE LAW OF AWOL. By Alfred Avins. New York: Oceana Publications, 1957. Pp. xxxi, 288. $4.95. --

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TRAFFIC VICTIMS, TORT LAW & INSURANCE. By Leon Green. …

Book Reviews, Ferdinand F. Stone (Reviewer), Reginald Parker (Reviewer)

Vanderbilt Law Review

Governmental Liability By H. Street New York: Cambridge University Press, 1953. Pp. 221. $5.00.

reviewer: Ferdinand F. Stone

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Roman Law and Common Law: A Comparison in Outline, Second Ed. By W. W. Buckland and Arnold D. McNair. Revised by F. H. Lawson New York: Cambridge University Press, 1952.Pp. xii, 439. $7.00.

reviewer: Reginald Parker