Law Commons^™

An Intentional Tort Theory Of Patents, Saurabh Vishnubhakat

Faculty Scholarship

This Article challenges the dogma of U.S. patent law that direct infringement is a strict liability tort. Impermissibly practicing a patented invention does create liability even if the infringer did not intend to infringe or know about the patent. The consensus is that this is a form of strict liability. The flaw in the consensus is that it proves too little, for the same is true of intentional torts: intent to commit the tort is unnecessary, and ignorance of the legal right is no excuse. What is relevant is intent to perform the action that the law deems tortious. So …

Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones

Faculty Scholarship

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis …

Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon

Faculty Scholarship

No abstract provided.

The Reciprocal Of Macpherson V. Buick Motor Company, Anita Bernstein

Faculty Scholarship

No abstract provided.

Fiduciary Breach, Once Removed, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Does Medical Malpractice Law Improve Health Care Quality?, Michael D. Frakes, Anupam B. Jena

Faculty Scholarship

Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current …

Accessory Disloyalty: Comparative Perspectives On Substantial Assistance To Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

Culpable participation in a fiduciary's breach of duty is independently wrongful. Much about this contingent form of liability is open to dispute. In the United States, well-established general doctrine defines the elements requisite to establishing accessory liability, which is categorized as a tort and often referred to as "aiding-and abetting" liability. What's controversial is how the tort applies to particular categories of actors, most recently investment banks that advise boards of target companies in M&A transactions. In the United Kingdom, in contrast, accessory liability in connection with a breach of trust or fiduciary duty is controversial because the law is …

Back To Basics: Public Adjudication Of Corporate Atrocities Torts, Maya Steinitz

Faculty Scholarship

The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts. A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one. I’d like to take this opportunity to argue against that idea.

Corporate atrocities, which are the symposium’s focus, may be crimes, but they also have a tort …

Culpable Participation In Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …

Driverless Cars And The Much Delayed Tort Law Revolution, Andrzej Rapaczynski

Faculty Scholarship

The most striking development in the American tort law of the last century was the quick rise and fall of strict manufacturers’ liability for the huge social losses associated with the use of industrial products. The most important factor in this process has been the inability of the courts and academic commentators to develop a workable theory of design defects, resulting in a wholesale return of negligence as the basis of products liability jurisprudence. This article explains the reasons for this failure and argues that the development of digital technology, and the advent of self-driving cars in particular, is likely …

The Equipoise Effect, Bert Huang

Faculty Scholarship

This Essay explores an overlooked way to use the remedy of disgorgement in torts, contracts, and regulation. It begins with a reminder that disgorging net gains does not force the liable actor to take a loss; by definition, it allows him to break even. As a matter of incentives, it places him in a sort of equipoise. This equipoise effect has a logical upshot that might seem counterintuitive: Substituting disgorgement for any other remedy, part of the time, can emulate the incentive effect of using that other remedy all of the time.

In theory, then, courts or regulators can sometimes …

Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu

Faculty Scholarship

We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …

Foreword: Legal Malpractice Is No Longer The Profession's Dirty Little Secret, Susan Saab Fortney

Faculty Scholarship

In 1994, Professor Manuel R. Ramos published a law review article called, Legal Malpractice: The Profession's Dirty Little Secret. As suggested by the title, Professor Ramos argued that legal malpractice was a "taboo subject" that has been "ignored by the legal profession, law schools, mandatory continuing legal education ("CLE") programs, and even by scholarly and lay publications." Thirty years later, legal malpractice is an ever-present threat that lawyers cannot afford to ignore.

Drug Design Liability: Farewell To Comment K, Aaron Twerski, James A. Henderson Jr.

Faculty Scholarship

No abstract provided.

Dualism And Doctrine, Alex Stein, Dov Fox

Faculty Scholarship

No abstract provided.

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

Talking Points, Alex Stein, Jef De Mot

Faculty Scholarship

No abstract provided.

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Faculty Scholarship

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …

Cocktails On Campus: Are Libations A Liability?, Susan S. Bendlin

Faculty Scholarship

No abstract provided.

(Still) "Unsafe At Any Speed": Why Not Jail For Auto Executives?, Rena I. Steinzor

Faculty Scholarship

Americans can be forgiven for wondering what has gone so drastically wrong with the companies that sell automobiles. In 2014, 64 million, a number equivalent to one in five of the cars on the road, was recalled. Safety defects such as the lack of torque in ignition switches installed in GM compact cars like the Cobalt put motorists in the terrifying position of coping with a stalled engine and loss of power brakes while traveling at high speeds. GM had the audacity to classify this condition was not a safety defect, but instead was merely “inconvenient” for its customers. It …

The Surprising Relevance Of Medical Malpractice Law, Michael D. Frakes

Faculty Scholarship

The academic community has largely reached a consensus that medical malpractice reform is unlikely to be a meaningful source of health-care cost containment. This Article suggests that it would be premature to conclude based on the evidence underlying this academic sentiment that physicians are universally insensitive to the parameters of medical malpractice law and that liability reform has no role to play in the health-care-costs debate. On the contrary, this Article demonstrates that the medical-liability system, under particular structures and conditions, may indeed have a meaningful connection to health-care spending patterns.

The shortcoming of the existing empirical literature that has …

When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship

No abstract provided.

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Faculty Scholarship

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

The Mdl Vortex Revisited, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship

In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence …

Do Physicians Respond To Liability Standards?, Michael D. Frakes, Matthew Frank, Seth Seabury

Faculty Scholarship

In this paper, we explore the sensitivity in the clinical decisions of physicians to the standards of care expected of them under the law, drawing on the abandonment by states over time of rules holding physicians to standards determined by local customs and the contemporaneous adoption of national-standard rules. Using data on broad rates of surgical interventions at the county-by-year level from the Area Resource File, we find that local surgery rates converge towards national surgery rates upon the adoption of national-standard rules. Moreover, we find that these effects are more pronounced among rural counties.

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg

Faculty Scholarship

Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses …

Halliburton Ii: It All Depends On What Defendants Need To Show To Establish No Impact On Price, Merritt B. Fox

Faculty Scholarship

Rule 1Ob-5 private damages actions cannot proceed on a class basis unless the plaintiffs are entitled to the fraud-on-the-market presumption of reliance. In Halliburton II, the Supreme Court provides defendants with an opportunity, before class certification, to rebut the fraud-on-the-market presumption through evidece that the misstatement had no effect on the issuer's share price. It left unspecified, however, the standard by which the sufficiency of this evidence should be judged.

This Article explores the two most plausible approaches to setting this standard. One approach would be to impose the same statistical burden on defendants seeking to show there was …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

Faculty Scholarship

This article explores a crucial, though often neglected, episode in the history of modern private law: the nineteenth and early twentieth century debate over the concept of “abuse of rights”. In broad terms, the formula evokes the idea of an abusive, because malicious or unreasonable, exercise of an otherwise lawful right. The doctrine was applied in a variety of subfields of private law: property, contract, and labour law. It was conceived as a response to the urgent legal questions posed by the rise of modern industrial society: the limits of workers’ right to strike, the limits of industrial enterprises’ property …